showing the various values put by All the land in this State, except such five plaintiff on his services. Held, That these could not be conclusive against plaintiff; the amount stated in the summons as well as in the other papers were admissions of plaintiff which could be explained, and if the referee allowed a less sum than the largest amount claimed by plaintiff it does not follow that the referee erred or that plaintiff was impeached. 16 N. Y., 389. Judgment of General Term, reversing judgment for plaintiff, reversed, and judgment for plaintiff affirmed. Opinion by Danforth, J.. All concur, except Rapallo and Earl, JJ., not voting. acres, was sold under the decree, and all the land in New Jersey was sold under foreclosure of the three mortgages in that State, and enough was realized to satisfy the first mortgage and all costs and expenHeld, That respondent was entitled to have his land released. ses. This action was brought for the foreclosure of a mortgage. It appeared that on March 23, 1871, one J. owned a farm of 500 acres, part of which was in Orange county, in this State, and the remainder in New Jersey. On that day he executed a mortgage for $15,000 on the whole farm, which was recorded in Orange county. On March 31, 1876, J. conveyed to R. five acres of the land in this State by 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. N. Y. COURT OF APPEALS. Welling, applt., v. Ryerson, respt. Ryerson, respt., v. Welling, applt. Decided Nov. 20, 1883. One J. owned a farm situated partly in this State and partly in New Jersey, subject to mortgage. He conveyed five acres thereof in this State, and subsequently, but before the deed was recorded, gave a mortgage on the whole farm, which was recorded after the deed. A subsequent mortgage was given on the balance of the farm. In an action to foreclose the first mortgage, respondent, who owned the five acres, tendered the amount due on the mortgage and demanded an assignment or a release of his lands, which was refused. Held, That the demand should have been complied with; that the fact that the farm was situated in two States did not affect the matter. On April 26, 1876, J. executed a mortgage for $4,600 on the whole farm, which was recorded in Orange county May 29, 1876. These mortgages were assigned to W., the appellant, and on October 9, 1877, he took from J. a mortgage for $4,400 on the whole farm, except the five acres conveyed to R., which was also recorded in Orange county. In June, 1880, W. commenced foreclosure proceedings by suits in this State and New Jersey. The New York suit was to foreclose the first mortgage. The respondent was made one of the defendants, and on September 29, 1880, a judgment was rendered therein directing a sale of the lands in this State, without reference to those in New Jersey, and providing that the land not conveyed to R., should be first sold, and that | satisfy the first mortgage and all the costs of the foreclosure proceedings and of the sales. his land should be sold only in case the other land should not sell for enough to satisfy the judgment and costs. The New Jersey suit, to which the respondent was not made a party, was to foreclose the three mortgages, and resulted in a foreclosure judgment, on October 5, 1880, directing a sale of the lands in New Jersey. While W. was proceeding to execute the judgment in this State, respondent tendered to him the amount due on his mortgage, and costs, and demanded that he should receive the same and assign the mortgage, or release his lands from the lien thereof, which W. refused to do. It was conceded that the land in this State was of less value than the amount due on the first mort gage, and that the whole farm, excluding the five acres owned by respondent, was of more value than the amount due on that mort gage. Theodore F. Miller, for applt. Held, That the respondent's demand should have been complied with. The fact that the farm was situated in two States does not affect the matter. 8 N. Y., 44; 66 id., 363; 82 id., 155. It appeared by the record in Ryerson v. Welling, that the judg ment in this State has been executed by a sale of the land in this State, except the five acres belonging to Ryerson, and that the New Jersey judgment has also been executed by a sale of the land in that State, and that all the land sold brought more than enough to Held, That that has in fact been accomplished which equity requires, and Ryerson is entitled to have his land released and discharged of any liability. In the case of Welling v. Ryerson, the complaint recognizes the deeds to Ryerson and from him to his son as properly executed and recorded, and the answer alleges that they were duly executed, acknowledged and recorded, and the judgment adjudicates in effect that these deeds were properly acknowledged and recorded. In Ryerson v. Welling, the complaint contains covenants substantially that these deeds were properly acknowledged, executed and recorded, and these averments are not denied in the answer. It was claimed that these deeds were not properly acknowledged so as to entitle them to be recorded or read in evidence. Held, Untenable. Order and judgment of General Term, directing subrogation in favor of respondent, affirmed. Opinion by Earl, J. All con cur. EVIDENCE. N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Louis Guilladen, respt., v. The Coast Wrecking Co., applt. Decided Dec. 21, 1883. In an action by an employee against his employer to recover damages for injuries sus. tained by reason of the defective condition of a machine which he was employed to run, evidence is admissible to show that a similar accident had happened a short time before, for the purpose of bringing home knowledge to the employer of the dangerous character of the machinery. In such an action it is competent to show how the defect in the machine was remedied shortly after plaintiff's injury, for the purpose of showing how easily and safely it could have been done before. time before, for the purpose of bringing home knowledge to defendant, or its superior agents, of the dangerous character of the machinery; whether the party who suffered that injury was or was not guilty of negligence is not involved in the controversy. That it was also competent to show how the cog wheels causing Appeal from judgment entered plaintiff's injury were guarded on verdict of a jury. Plaintiff was an engineer in the employ of defendant, and while running a hoisting engine got his hand caught in certain cog-wheels which were negligently unguarded at the time, and which he was unable to see on account of the steam from the escape pipe, which was arranged in such a way that the wind blew the steam directly to and around him. Upon the trial evidence was allowed to be given showing that a similar accident had occurred to the employee previously employed in running the machine. Defendant objected and excepted to the admission of this evidence, on the ground that such accident might have been the result of the negligence of the person injured. Evidence was also allowed to be given, under objection and exception on the part of defendant, showing that shortly after the accident the cog-wheels which ocasioned it were covered with an iron plate. G. B. Bonney, for applt. Geo. V. N. Baldwin, for respt. Held, No error; that it was competent to show that a similar accident had happened a short shortly after the plaintiff's accident, for the purpose of showing how easily and safely it could have been done before. Judgment affirmed. Opinion by Davis, P.J.; Daniels, J., concurs. MORTGAGE. FORECLOSURE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The Union Dime Savings Bank, respt., v. Mary J. Quinn, applt. Decided Dec. 21, 1883. When a mortgagee enters into a stipulation with the mortgagor that the former should enter into possession of the mortgaged premises and receive the rents and profits thereof, and, after paying taxes, &c., should apply the residue upon the mortgage debt, and that such possession should continue until the mortgage debt should be reduced to a certain sum, and the mortgagee enters into possession under such stipulation, and remains in possession for four years without being able to realize enough from the property to make any application upon the mortgage debt, he is not bound to continue in possession of the property, but, the mortgage debt being due, he may proceed and foreclose the mortgage. Appeal from a judgment of foreclosure and sale. Defendant was the owner of certain real property situated in the City of New York, subject to a mortgage of $20,000 held by plaintiff. In 1878 an action was commenced by plaintiff for the purpose of foreclosing this mortgage, but, before the entry of judgment therein, it was stipulated between the parties that such action should be discontinued; that the mortgage should be reduced to $16,000, and that plaintiff should enter into possession of the property in question and collect the rents and profits thereof, and, after paying taxes, &c., should apply the residue of such rents and profits upon the principal of the mortgage, and that such possession by plaintiff should continue until the mortgage should be reduced to $15,000. Thereupon the action was discontinued. Defendant gave her bond for $16,000, payable on demand, and plaintiff entered into possession of the property in Held, That the provision of the stipulation allowing plaintiff to enter into possession of the property and receive its rents and profits and apply them upon the mortgage debt was for the benefit rather of plaintiff than defendant, inasmuch as its purpose was to increase rather than diminish the security by enabling plaintiff to reduce the amount of the debt while retaining the security upon. the property, and when it became evident that that result could not be secured plaintiff was not bound to continue its possession but could proceed and foreclose, as its debt was due and no postponement of the time of payment had been agreed upon. Judgment affirmed. Opinions by Brady, and Daniels, JJ.; Davis P. J., concurred. VILLAGES. TERM. FOURTH DEPT. In re the proposed village of Elba. Decided Oct., 1883. April, 1878. In June, 1881, this N. Y. SUPREME COURT. GENERAL action for the foreclosure of this mortgage was commenced, plaintiff in the meantime having continued in possession of the property, and having been unable to obtain sufficient rents therefrom to leave any residue to be applied upon the mortgage. The action was defended upon the ground that the principal sum was not due because the mortgage had not been reduced to $15,000 as provided in the stipulation. The court below overruled this defence and directed a verdict for plaintiff. E. I. Spink, for applt. W. H. Arnoux and C. H. Bovee, for respt. Vol. 18.-No. 13b. Whenever the territory included within the bounds of a proposed village exceeds one square mile, such additional territory must have at least 300 persons within its bounds. An election to decide upon the incorporation of a village exceeding one square mile of territory, where the excess does not contain the requisite population, is illegal, and the objections thereto may be taken summarily before the county judge. Appeal from order of county judge adjudging an election illegal. The election was held to determine the question of the incorpo ration of a village to be called | from the statute might be reached Elba and a majority of the votes were given in favor of the proposed village. The territory included within the bounds of such proposed village is about one square mile and a quarter and the population is 427. by a certiorari, yet it is obvious that it was the intention of the legislature by § 11 to provide for taking the "irregularities and objections" arising in the early proceedings before a county judge summarily. We think it was proper for him to declare an elec W. C. Watson and Geo. Bowen, tion held under such irregular for applt. Myron H. Peck, for respt. Held, That whenever the territory exceeds one square mile each additional territory must have at least 300 persons within its bounds. If the territory was one square mile then a population of 300 would be sufficient to comply with the statute. 1 R. S., 7th Ed., 884, § 1. Thus a territory having that number may be incorporated. Then the other provision is general and " proceedings invalid upon the appeal taken therefrom. The question as to whether the order was appealable was not decided. Order affirmed, with costs. Order directing return of money deposited affirmed, without costs. Opinion by Hardin, J.; Smith, P. J., and Barker, J., concur. WILL. WITNESS. TERM. SECOND DEPT. In re will of Deborah Orson. Decided Dec., 1883. provides for "additional square N. Y. SUPREME COURT. GENERAL miles of territory" to be included within the boundaries of the proposed village. But the statute declares that each additional square mile containing a resident population of not less than 300 persons may be incorporated. The statute provides a mode, and that mode and the requirements of the statute must be complied with or the statute cannot be availed of. * * If the construction we have given the statute be correct, it would seem to follow that the election was illegal and that the proceedings had prior thereto based upon a contra construction were irregular and illegal inasmuch as they did not conform to the statute. Though such irregularities or departure When there are but two witnesses to a will, both of whom reside in the State, and are of sound mind and not disabled by age, sickness or infirmity, and the will cannot be proven without such witnesses any devise, legacy, interest or appointment made to such witness is void under the statute. Appeal from decree declaring legacy void. Deborah Orson by her last will and testament gave her residuary estate to Isaac F. Brown and Margaret Miller. The same persons were made executors. There were two witnesses to the will, Isaac F. Brown and Daniel B. Foster; both lived in this State and both were |