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showing the various values put by All the land in this State, except such five plaintiff on his services.

acres, was sold under the decree, and all Held, That these could not be

the land in New Jersey was sold under

foreclosure of the three mortgages in that conclusive against plaintiff; the State, and enough was realized to satisfy amount stated in the summons as the first mortgage and all costs and expenwell as in the other papers were

Held, That respondent was entitled to admissions

have his land released. of

plaintiff which could be explained, and if the ref- This action was brought for the eree allowed a less sum than the foreclosure of a mortgage. It aplargest amount claimed by plain-peared that on March 23, 1871, one tiff it does not follow that the ref. J. owned a farm of 500 acres, part eree erred or that plaintiff was of which was in Orange county, in impeached. 16 N. Y., 389.

this State, and the remainder in Judgment of General Term, New Jersey. On that day he exreversing judgment for plaintiff, ecuted a mortgage for $15,000 on reversed, and judgment for plain the whole farm, which was recordtiff affirmed.

ed in Orange county. On March Opinion by Danforth, J.. All 31, 1876, J. conveyed to R. five concur, except Rapallo and Earl, acres of the land in this State by JJ., not voting.

a deed dated that day, and recorded in Orange county, May 26,

1876, and that day R. conveyed MORTGAGE. RELEASE. SUB-said five acres to the respondent. ROGATION.

On April 26, 1876, J. executed a N. Y. COURT OF APPEALS.

mortgage for $4,600 on the whole

farm, which was recorded in Welling, applt.,

applt., v. Ryerson, Orange County May 29, 1876. respt.

These mortgages were assigned to Ryerson, respt., v. Welling, W., the appellant, and on October applt.

9, 1877, he took from J. a mort

gage for $4,400 on the whole farm, Decided Nov. 20, 1883.

except the five acres conveyed to One J. owned a farm situated partly in this R., which was also recorded in State and partly in New Jersey, subject to

Orange county. In June, 1880, W. mortgage. He conveyed five acres thereof

commenced foreclosure proceedin this State, and subsequently, but before the deed was recorded, gave a mortgage on ings by suits in this State and New the whole farm, which was recorded after Jersey. The New York suit was the deed. A subsequent mortgage was to foreclose the first mortgage. given on the balance of the farm. In an

The respondent was made one of action to foreclose the first mortgage, respondent, who owned the five acres, ten

the defendants, and on September dered the amount due on the mortgage and 29, 1880, a judgment was rendered demanded an assignment or a release of his therein directing a sale of the lands lands, which was refused. Held, That the

in this State, withont reference to demand should have been complied with ; that the fact that the farm was situated in

those in New Jersey, and providtwo States did not affect the matter. ing that the land not conveyed to

R., shonld be first sold, and that satisfy the first mortgage and all his land should be sold only in the costs of the foreclosure procase the other land should not sell ceedings and of the sales. for enough to satisfy the judgment Held, That that has in fact been and costs. The New Jersey suit, accomplished which equity reto which the respondent was not quires, and Ryerson is entitled to made a party, was to foreclose the have his land released and disthree mortgages, and resulted in a charged of any liability, foreclosure judgment, on October In the case of Welling v. Ryer5, 1880, directing a sale of the son, the complaint recognizes the lands in New Jersey. While W.

While W. deeds to Ryerson and from him to was proceeding to execute the his son as properly executed and judgment in this State, respondent recorded, and the answer alleges tendered to him the amount due that they were duly executed, acon his mortgage, and costs, and knowledged and recorded, and the demanded that he should receive judgment adjudicates in effect that the same and assign the mortgage, these deeds were properly acknowlor release his lands from the lien edged and recorded. In Ryerson thereof, which W. refused to do. v. Welling, the complaint conIt was conceded that the land in tains covenants substantially that this State was of less value than these deeds were properly acthe amount due on the first mort. knowledged, executed and recordgage, and that the whole farm, ed, and these averments are not excluding the five acres owned by denied in the answer. respondent, was of more value claimed that these deeds were not than the amount due on that mort properly acknowledged so as to gage.

entitle them to be recorded or read Theodore F. Miller, for applt. in evidence. Henry Bacon, for respt.

Held, Untenable. Held, That the respondent's de- Order and judgment of General mand should have been complied Term, directing subrogation in with. The fact that the farm was favor of respondent, affirmed. situated in two States does not Opinion by Earl, J. All conaffect the matter. 8 N. Y., 44 ; 66 id., 363 ; 82 id., 155. It appeared by the record in

EVIDENCE. Ryerson v. Welling, that the judgment in this State has been execu- | N.Y. SUPREME COURT. GENERAL ted by a sale of the land in this TERM. FIRST DEPT. State, except the five acres belong

Louis Guilladen, respt., v. The ing to Ryerson, and that the New Coast Wrecking Co., applt. Jersey jndgment has also been executed by a sale of the land in Decided Dec. 21, 1883. that State, and that all the land

In an action by an employee against his emsold brought more than enough to ployer to recover damages for injuries sus.

It was


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tained by reason of the defective condition time before, for the purpose of
of a machine which he was employed to bringing home knowledge to de-
run, evidence is admissible to show that a
similar accident had happened a short time fendant, or its superior agents, of
before, for the purpose of bringing home the dangerous character of the ma-
knowledge to the employer of the danger chinery; whether the party who
ous character of the machinery.

suffered that injury was or was not In such an action it is competent to show how

the defect in the machine was remedied guilty of negligence is not involv-
shortly after plaintiff's injury, for the pur- ed in the controversy.
pose of showing how easily and safely it That it was also competent to
could have been done before.

show how the cog.wheels causing Appeal from judgment entered plaintiff's injury were guarded on verdict of a jury.

shortly after the plaintiff's acciPlaintiff was an engineer in the dent, for the purpose of showing employ of defendant, and while how easily and safely it could running a hoisting engine got his have been done before. hand caught in certain cog-wheels Judgment affirmed. which were negligently unguarded Opinion by Davis, P.J.; Daniels, at the time, and which he was un J., concurs. able to see on account of the steam from the escape pipe, which was MORTGAGE. FORECLOSURE. arranged in such a way that the wind blew the steam directly to

N. Y. SUPREME COURT. GENERAL and around him.

TERM. FIRST DEPT. Upon the trial evidence was

The Union Dime Savings Bank, allowed to be given showing that respt., v. Mary J. Quinn, applt. a similar accident had occurred to

Decided Dec. 21, 1883. the employee previously employ. ed in running the machine. De- When a mortgagee enters into a stipulation fendant objected and excepted to

with the mortgagor that the former should

enter into possession of the mortgaged the admission of this evidence, on

premises and receive the rents and profits the ground that such accident

thereof, and, after paying taxes, &c., should might have been the result of the apply the residue upon the mortgage debt, negligence of the person injured.

and that such possession should continue Evidence was also allowed to be

until the mortgage debt should be reduced

to a certain sum, and the mortgagee enters given, under objection and excep- into possession under such stipulation, and tion on the part of defendant, remains in possession for four years withshowing that shortly after the ac- out being able to realize enough from the cident the cog-wheels which oca

property to make any application upon the

mortgage debt, he is not bound to consioned it were covered with an iron

tinue in possession of the property, but, plate.

the mortgage debt being due, he may proG. B. Bonney, for applt.

ceed and foreclose the mortgage. Geo. V. N. Baldwin, for respt. Appeal from a judgment of fore

Held, No error; that it was closure and sale. competent to show that a similar Defendant was the owner of accident bad happened a short certain real

property situated

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in the City of New York, sub- Held, That the provision of the ject to a mortgage of $20,000 held stipulation allowing plaintiff to by plaintiff. In 1878 an action enter into possession of the propwas commenced by plaintiff for erty and receive its rents and the purpose of foreclosing this profits and apply them upon the mortgage, but, before the entry of mortgage debt was for the benefit judgment therein, it was stipulated rather of plaintiff than defendant, between the parties that such ac- inasmuch as its purpose was to intion should be discontinued ; that crease rather than diminish the the mortgage should be reduced to security by enabling plaintiff to $16,000, and that plaintiff should reduce the amount of the debt enter into possession of the prop- while retaining the security upon erty in question and collect the the property, and when it became rents and profits thereof, and, after evident that that result could not paying taxes, &c., should apply be secured plaintiff was not bound the residue of such rents and to continue its possession but could profits upon the principal of the proceed and foreclose, as its debt mortgage, and that such posses

was due and no postponement of sion by plaintiff should continue the time of payment had been until the mortgage should be re- agreed upon. duced to $15,000.

Judgment affirmed. Thereupon the action was dis- Opinions by Brady, and Dancontinued. Defendant gave her iels, JJ.; Davis P. J., concurred. bond for $16,000, payable on demand, and plaintiff entered into

VILLAGES. possession of the property in April, 1878. In June, 1881, this N. Y. SUPREME COURT. GENERAL action for the foreclosure of this TERM. FOURTH DEPT. mortgage was commenced, plaintiff in the meantime having con

In re the proposed village of

Elba. tinued in possession of the property, and having been unable to

Decided Oct., 1883. obtain sufficient rents therefrom to

Whenever the territory included within the leave any residue to be applied bounds of a proposed village exceeds one upon the mortgage. The action square mile, such additional territory must was defended upon the ground

have at least 300 persons within its bounds.

An election to decide upon the incorporation that the principal sum was not due

of a village exceeding one square mile of because the mortgage had not been territory, where the excess does not contain reduced to $15,000 as provided in the requisite population, is illegal, and the the stipulation. The court below

objections thereto may be taken summaoverruled this defence and directed

rily before the county judge. a verdict for plaintiff.

Appeal from order of county E. I. Spink, for applt.

judge adjudging an election illegal. W. H. Arnoux and C. H. Bovee,

The election was held to deter

mine the question of the incorpo. Vol. 18.-No, 13b.

for respt.

ration of a village to be called from the statute might be reached Elba and a majority of the votes by a certiorari, yet it is obvious were given in favor of the proposed that it was the intention of the village.

legislature by $ 11 to provide for The territory included within taking the “irregularities and obthe bounds of such proposed vil. jections " arising in the early prolage is about one square mile and ceedings before a county judge a quarter and the population is summarily. We think it was 427.

proper for him to declare an elecW. C. Watson and Geo. Bowen, tion held under sich irregular for applt.

proceedings invalid upon the apMyron H. Peck, for respt. peal taken therefrom.

Held, That whenever the terri. The question as to whether the tory exceeds one square mile each order was appealable was not deadditional territory must have at cided. least 300 persons within its bounds. Order affirmed, with costs. Or

If the territory was one square der directing return of money de. mile then a population of 300 would posited affirmed, without costs. be sufficient to comply with the Opinion by Hardin, J.; Smith, statute. 1 R. S., 7th Ed., 884, $1. P.J., and Barker, J., concur. Thus a territory having that number may be incorporated. Then the other provision is general and

WILL. WITNESS. provides for “additional square N. Y. SUPREME COURT. GENERAL miles of territory” to be included

TERM. SECOND DEPT. within the boundaries of the proposed village. But the statute

In re will of Deborah Orson. declares that each each additional

Decided Dec., 1883. square mile “containing a resi

When there are but two witnesses to a will, dent population of not less than

both of whom reside in the State, and are 300 persons

of sound mind and not disabled by age, corporated. The statute provides

sickness or infirmity, and the will cannot a mode, and that mode and the be proven without such witnesses any derequirements of the statute must vise, legacy, interest or appointment made

to such witness is void under the statute. be complied with or the statute cannot be availed of.

Appeal from decree declaring If the construction we have given legacy void. the statute be correct, it would Deborah Orson by her last will seem to follow that the election was and testament gave her residuary illegal and that the proceedings had estate to Isaac F. Brown and Marprior thereto based upon a contra garet Miller.

The same persons construction were irregular and were made executors. There were illegal inasmuch as they did not two witnesses to the will, Isaac F. conform to the statute. Though Brown and Daniel B. Foster; both such irregularities or departure I lived in this State and both were

may be in

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