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cision is a provision of law within the and not from the time of the demand
meaning of the section.-Id.

4. Partiol payments made by one of two joint 12. Where some items on each side of a

debtors will not revive the debt as against tual account accrued within six years prior
the other.-Dunning v. Powell, 187.

to commencement of suit thereon, the

statute of limitations is no bar.- Eno v.
5. The intention of the Code is to apply a Diefendorf, 477.

uniform statutory rule of limitation to all
concurrent remedies relating to the same See ADVERSE POSSESSION, 3; BANKS, 4;
subject matter ; and a legatee seeking pay. FRAUI), 12, 13; NEGOTIABLE PAPER, 4 ;
ment of his legacy will not be barred by PARTNERSHIP, 6 ; Trusts, 5.
lapse of time from seeking relief in the Sur-
rogate's court, when, at the same time, a

remedy is open to him, by action, in the
courts of law.-Drake v. Wilkie, 237.

See LIEN, 1.



6. Defendant, who made the note in suit in

1859, was then and continued to be a non-
resident until 1876. The action was brought 1. One who purchases a lottery ticket with
in 1880. Held, That defendant could not the intent of informing against the seller is
plead the statute of limitations.Bean v. not an accomplice. The People v. Noelke
Tonnele, 322.

et al., 134.
7. A promissory note is presumed to be paid 2. The statute against lotteries is not un-
after the lapse of twenty years.— 1d.

constitutional. Id.
8. Creditors cannot compel an accounting by 3. On the trial of an indictment for selling

an executor until eighteen months after the lottery tickets the defendant
granting of letters, and proceedings to sell examination may properly be asked wheth-
real estate to pay debts cannot be instituted er he bas been engaged in that business
unul after such time as may be actually prior to the offence charged and whether he
consumed in compelling an accounting: - has been convicted for sending matter in
Mead v. Jenkins et al., 364.

relation to lotteries through the mail.-Id.
9. A claim was due in February, 1871 ; the

debtor died in March, 1871, and adminis-
trators were appointed in April, 1871, who 1. The mere fact that some of the defendants
accounted in October, 1877. A proceeding in an action of partition were persons of un-
to sell the real estate to pay the claim was sound mind is not sufficient to release a
begun in February, 1880. Held, That it purchaser on a sale under the judgment in
was not barred by the statute.-Id.

such action.-Prentiss v. Cornell, 464.
10. The provisions of the Code of Civ. Pro. 2. Lunatics may be sued and the personal

prescribing the limitations within which service of the summons and complaint upon
actions and special proceedings may be

them confers jurisdiction of their persons.
maintained apply to and define the time Id.
within which legal rights existing at the
time of their taking effect can be enforced

afterwards except in the case of such rights
as are specifically excepted from the effects

of such provisions.The People ex rel.

Sheridan v. French et al., 378.
11. The limitation of six years prescribed in

1. Where an Illuminating Company has been
$ 382, Code Civ. Pro., applies to and gov.

duly authorized by the municipal authori-

ties to erect poles in the streets, and in pur-
erns a special proceeding by mandamus to
compel the Police Commissioners of the

suance thereof erecis a pole without con-

sent of the owner of the adjacent premises
city of New York to pay to a policeman a

and without compensation to him. a man-
portion of his salary wrongfully withheld

damus cannot be granted against the offi-
by them, the right to institute which occurr-

cers of the city to compel the removal of
ed before the taking effect of the said sec-
tion of the Code, but which was not

such pole, but the remedy is by action.-

The People ex rel. McManus v. Thompson et
instituted until after such taking effect, and
$ 410 of the Code of Civ. Pro, also applies

al., 572.
to such proceeding, and the said liinitation, See JUSTICES OF THE PEACE, 3, 4; LIMITA-
therefore, commences to run from the time

TION, 11 ; Towns, 1.
the relator bad actual knowledge of the
the facts giving him a right to make a

demand for the payment of the portion of
his salary wrongfully witheld from him,



1. An independent voyage undertaken after a 1. In an action for false imprisonment when

vessel has left the port of her departure in it appears that the wrongful imprisonment
pursuit of the insured voyage without the complained of was caused by one of the
intention of returning causes a forfeiture of defendants' servants on suspicion that the
the insurance.-Snyder et al. v. The Atlan- plaintiff had stolen articles from defendants'
tic Mut. Ins. Co., 446.

store, the defendants are not liable unless

such act of their servant was authorized by
2. Preparations for the voyage from Bermu-

them; and the question as to whether such
da to New York were begun June 30. On

servant was so authorized, there being a cou-
July 2, and again on the 3d, after receiving

flict of testimony on that point, is one for
clearance papers, the tug insured towed ves-

the determination of the jury.- Wallach v.
sels to sea, and on the latter occasion she

Ridley et al., 16.
did not return to her berth, but went to a
coaling station and thence proceeded on 2. Defendant, by agreement with a railroad
her voyage and was lost. lleld, That the company, had the use of a side-track which
policy attached at the date preparations for connected its mill with the main line. Its
the voyage were begun, and that the trips roadway and equipment were furnished in
made July 2 and 3 were such deviations as part by each. Held, That defendant was
vitiated the insurance.--Id.

liable to the representatives of a servant of

the railroad company, who was killed upon

the side-track through defendant's negli-

gence ; that defendant's servants and those
1. In a case where cohabitation was illicitly

of the railroad company were not co-
commenced, and had been meretriciously

employees. Roach v. The Fort Orange
continued for a long time, but is alleged by

Paper Co., 124.
one of the parties to have been subsequently
changed into a lawful marriage, and an ac- 3. No one saw the deceased killed, and the
tion for divorce is brought by such party circumstances were such that he might
on the ground of the adultery of the other have been struck by defendant's train or
party in marrying a third person, while by that of the railroad company. Held,
evidence tending to show by presumption That the question was for the jury.- Id.
or inference that a contract of marriage has
in fact been made will not be excluded, the 4. Defendants instructed their employees not
court will be very cautious in making such to show styles or give prices to persons who
deductions or inferences where the party came from other stores to look at siyles or
allering the making of the contract fails to obtain prices. Defendants' floorwalker,
establish it by his or her direct testimony ; judging plaintiff to be such a person, or-
and in such a case the court may refuse to dered the saleswoman to take from plain-
find that such contract has been made, tiff's person a cloak which she was trying
although if the rights of third parties or the on and this was done. Held, That this was
legitimacy of children born to plaintiff and an assault for which defendants were lia-
defendant during their cohabitation had ble.-Geraty v. Stern et al., 187.
been involved a marriage would have been
found from the evidence of an inferential 5. An employer is liable in case he fails to
nature produced. Harbeck v. Harbeck,

observe reasonable care in protecting the

persons employed by him from the risks of

injury.--Berg v. The Tilly Foster Mining
2. In such a case it is very doubtful whether

the court ought not to require some positive
and direct proof from the party alleging 6. The master is not responsible for the mere
the contract of marriage that it was in fact negligence of one employee whereby an.
made.- 1d.

other employee is injured, and the grade of

the negligent employee is not maierial. -

Neubauer v. The N. Y., L. E. & W. RR.

Co., 402.
1. Money loaned to a married woman enlarges
her separate estate, and she is liable there-

for. – Merritt v. Kinney et al., 316.

2. A complaint set up a loan to a married

2 ; USURY, 6, 7.
woman ; her promise to repay ; her prom-
issory note given therefor, charging her

separate estate ; the endorsements thercon ;
ownership by plaintiff, protest and notice. 1. Under the Onondaga act, a lien may be
Held, That a demurrer on the ground that foreclosed by the assignee of the claim
the complaint did not state facts sufficient Brown v. Gregory et al., 45.
to consiitute a cause of action was frivo.

2. In an action to foreclose a mechanic's lien

under Chap. 478, Laws of 1862, all the

lienors, both prior and subsequent to plain-
drawn upon him by the contractor operate
as payments on the contract from the time
of acceptance, although an arrangement is
made with the payee for payment in the
future. Such an acceptance operates as an
equitable assignment of so much of the
fund as is required to satisfy the order, and
the contractor's interest in it thereby ceases


tiff, are proper parties defendant.-Kenny

V. Apgar et al., 73.
3. The judgment in such an action may

properly provide for a sale of the premises
on behalf of all the lienors who are made
parties and for payment to them of their

liens according to their priority.-Id.
4. A sidewalk in front of a building is an

appurtenance thereto within the meaning

of tlie lien law.-Id.
5. It is not necessary to the validity of the

lien that a copy of the notice of lien should

be served on the owner.--Id.
6. The right of sub-contractors and material

men to establish a lien, under Chap. 379,
Laws of 1875, depends on the liability of
the owner of the premises to the contractor
at the time of filing such lien.Gibson v.

Smith et al., 174.
7. The acceptance by the owner of orders

to that extent.-Id.
8. Defendant leased certain premises to one

S., who agreed to erect a building thereon.
Defendant was to make advances from
time to time up to half the cost thereof and
take back a mortgage to secure repayment.
Provision was made for renewals and the
lease provided that on failure of S. to per-
form, or at the end of the final term, the lot
with all buildings was to revert to defend.
ant. S. commenced building, and con-
tracted with plaintiffs for materials, which
they furnished. Held, That plaintiffs were
not entitled to any lien upon defendant's
interest in the premises. Cornell et al. v.
Bar ney, 367.

debtedness C. reconveyed the same prem-
ises to defendant, who thereupon executed
a bond and mortgage to C. for the same
purpose as the first conveyance. On C.'s
death the old firm name and business was
continued by the survivor, with new part-
pers, and defendant continued to deal with
it without change under a parol agree-
ment that the mortgage should stand as
security for his indebtedness to the new
firm. Defendant made certain payments
to the new firm which were entered to his
credit generally. He stood indebted to the
old firm also. In an action of foreclosure,
Held, That the parol agreement to extend
the mortgage to the new firm's advances
was invalid; that the general payments
made by C. to the new firm were not to
be applied to the charges in his open cuir-
rent account with the old firm, and that
defendant's wife was entitled to her in-
choate right of dower in the entire fee of
the mortgaged premises. - Taylor v. Post et

al., 11.
2. Where the language of an instrument is

susceptible of more than one construction,
that construction will be adopted which, in
the light of surrounding circumstances and
upon a view of the whole instrument, is in
accordance with the apparent intent of the

parties.-Thurber v. Minturn et al., 25.
3. A mortgage of a sugar refinery and the

ground on which it stands, and also of all
the machinery and effects in said sugar re-
finery, does not include the sugars and
syrups in said refinery when, at the same
time, a chattel mortgage, particularly de-
scribing the machinery, but making no
mention of the sugars and syrups, is given,
and when the mortgagor is allowed to re-
main in possession and continue his busi-

4. A mortgagor can only shift his primary lia-

bility to pay the bond to the land by a con-
veyance subject to its payment or by de-
ducting the amount from the consideration
or by an agreement between the parties
changing such liability.-- Wadsworth v.

Lyon et al., 74.
5. A mortgagor sold the mortgaged premises

and received the full consideration thereof,
the deed containing no reference to the
mortgage. Plaintiff purchased the premises
on foreclosure, but the sale was not com-
pleted and no report was made. Plaintiff
then purchased of the grantee of the mort-
gagor and afterwards took an assignment of
the judgment of foreclosure and the bond.
In an action on the bond, Held, That the
sale on foreclosure was no defense and that
the failure to complete it did not damage
defendants; that plaintiff had a right to sue
simply as assignee and was not obliged to

set up his equities in his complaint.-Id.
6. A., B. and C., having endorsed notes of a

corporation for which they were not origi-



1. Proof of a claim of mutual mistake should

be so clear as to leave no room for doubt.-

Smith et al. v. Knapp, 95.
2. Contributory negligence will not defeat an

action based on misrepresentation and mis-

take.-Knapp v. Fowler, 230.

1. Defendant and his wife delivered a deed to

C., plaintiff's intestate, as a mortgage to
secure C.'s firm for existing and future in.

nally liable, executed mortgages to a trustee gaged premises to a grantee who assumes
in pursuance of an agreement or declaration the payment of the mortgage becomes
of irust whereby it was agreed that each thereby a surety only for the payment of
should pay one-third of the amount of such the debt, and the receipt by the mortgagee
notes as the company should fail to pay, of a new bond from such grantee, without
and that if either party should pay more the knowledge or assent of the original
than his share he should recover from the mortgagor, extending the time of payment
one failing to pay an amount equal to his and changing the period on the occurrence
aliquot part, and that the trustee, on request of which a default in the payment of the
of the party so paying, should foreclose the interest would render the principal sum
mortgage made by the party in default and due, discharges his liability as such surety,
reimburse the party who had paid. Held, provided the mortgagee, at the time of re-
That the holders of the notes had no in- ceiving such bond, had notice or understood
terest in the mortgages and they could not that the original mortgagor had become, by
be enforced for their benefit. - Seward et force of his deed, a surety only for the pay-
al. v. Huntington, 222.

ment of the debt, and the recording of such

deed is not sufficient notice of such fact.-
7. A usurious mortgage which includes the

The Star Fire Ins. Co. v. Waddington, 307.
amount of a prior valid mortgage which
was assigned to the holder of the usurious 12. It is not necessary to make the husband
mortgage cannot be used as a defense to an a party to a foreclosure of a mortgage ex-
action upon such valid mortgage.-Allison cuted by the husband and wife upon prop-
v. Schmitz et al., 265.

erty the title to which was in the wife at

the time of executing such mortgage, to
8. One J. owned a farm, situated partly in

make a valid title.- The Trustees of Jones
this State and partly in New Jersey, subject Fund v. Roth, 459.
to mortgage. He conveyed five acres there-
of in this State, and subsequently, but be- 13. A debtor is not obliged, when no place of
fore the deed was recorded, gave a mortgage payment is mentioned in the obligation, to
on the whole farm, which was recorded follow his creditor out of the State to make
after the deed. A subsequent mortgage a valid tender, for willingness and readi-
was given on the balance of the farm. In ness to pay under such circumstances with-
an action to foreclose the first mortgage, re- in the Siate is equivalent to payment for
spondent, who owned the five acres, ten- the purpose of avoiding a forfeiture. -Olm-
dered the amount due on the mortgage and stead et al. v. Wehle et al., 486.
demanded an assignment or a release of his
lands, which was refused. Held, That the 14. A mortgagee will not be permitted to take
demand should have been complied with; an unconscionable advantage of the mort-
that the fact that the farm was situated in gagor who is ready and willing to pay the
two states did not affect the matter. — Wel- mortgage debt, and the creditor who se-
ling v. Ryerson, 302.

cures his debtor's default will not be per-

mitted to take advantage of such default
9. All the land in this State, except such five for the purpose of enforcing a forfeiture. -

acres, was sold under the decree, and all Id.
the land in New Jersey was sold under
foreclosure of the three mortgages in that

15. Plaintiff purchased of defendants a bond
State, and enough was realized to satisfy

and mortgage and took a guaranty of pay
the first mortgage and all costs and expen-

ment. Thereafter she purchased the de-
ses. Held, That respondent was entitled to

cree on foreclosure of a concurrent mort-
have his land released.-Id.

gage and bid in the property on a sale there-

under for a nominal price and took a deed
10. When a mortgagee enters into a stipula- thereof. Defendants were not parties to

tion with the mortgagor that the former the foreclosure action. Held, That plain-
should enter into possession of the mort- tiff by her acts extinguished the guaranteed
gaged premises and receive the rents and mortgage; that as the guaranty was one of
profits thereof, and, after paying taxes, &c., payment and not of collection plaintiff was
should apply the residue upon the mortgage noi bound to foreclose unless required to do
debt, and that such possession should con- so by the guarantors and was not at liberty
tinue until the mortgage debt should be re- to do any affirmative act which would im-
duced to a certain sum, and the mortgagee pair the security or deprive defendants of
enters into possession under such stipula- any benefits therefrom on payment of the
tion, and remains in possession for four guaranty.-Humphrey v Hayes et al., 541.
years without being able to realize enough
from the property to make any application

16. The assignment contained a covenant that
upon the mortgage debt, he is not bound to the mortgage was a first lien. One of
continue in possession of the property, but,

the defendants had formerly owned a mort-
the mortgage debt being due, he may pro-

gage that was a concurrent lien. It did
ceed and foreclose the mortgage. The not appear that the other defendant knew
Union Dime Savings Bk. v. Quinn, 304. of the other mortgage or that plaintiff

was ignorant of it. Held, That the facts
11. A mortgagor who conveys the mort- were not sufficient to sustain a finding of

found to be rotten from its roots up to a
dangerous degree, the evidence being con.
flicting as to whether the

was any exte.
rior sign thereof while the tree was stand-
ing. Held, That the obligation of the city
cannot be limited to the duty to act only
upon exterior signs of danger, and it is a
question for the jury to decide whether or
not defendant should by some means anti-
cipate the danger, even by cutting down the

tree.- Vosper v. The Mayor, &c.,of N. Y., 98.
4. Plaintiff was injured by falling upon a de-

fective sidewalk in one of defendant's
streets. It did not appear that it had been
built by defendant, but defendant had bad
notice for il long time of its condition.
Held, That defendant was liable; that the
sidewalk having been laid, it became re-
sponsible for its condition and bound to
keep it in order as long as it existed and
this duty was ministerial and not judicial.-

Saulsbury v. The Village of Ithaca, 102.
5.-The failure of a municipal corporation to

fraud on defendants' part in contracting

their obligation to plaintiff.-Id.
17. The will of R. gave his residuary estate

to his executors in trust to convert into
money and apply the income to bis widow
and children during their lives with remain-
der to their issue. The executrix foreclosed
a second mortgage belonging to the estate,
bid in the property and took a deed to her-
self as executrix subject to plaintiff's mort-

The will conferred no power to in-
vest the trust funds in real estate. Held,
That the land so acquired took the place of
the mortgage; that the legatees and next of
kin and creditors of R. had no interest in
it as lard, and were not necessary parties
to an action to foreclose plaintiff's mort-

gage.---Lockman v. Reilley, 548.
18. Defendant conveyed certain land subject
to a mortgage which the grantee did noi as-

The mortgagee, in consideration of
payment of part of the principal, and with-
out defendant's knowledge, agreed with the
grantee to extend the payment of the bal-
ance for three years. Held, That by so do-
ing he took away, for the time being, the
mortgagor's right of subrogation, and this
he had no right to do; that the grantee
stood in the quasi relation of principal
debtor cnly to the extent of the value of the
land and the extension of time operated to
discharge the mortgagor only to the extent
of that value.- Murray et al. v. Marshall,


act does not prove negligence in a case
where not acting is consistent with knowl-
edge and ordinary prudence.--Cain v. The

City of Syracuse, 521.
6. Plaintiff's intestate was killed by the fall of

a wall adjoining private premises in which
he was temporarily. No complaint had
been made to the city that the wall was
dangerous and it appeared that on examina-
tion a prudent man might have deemed it
safe. No resolution ordering its removal
was passed by the Common Council al-
though it had power to do so. Held, That
while, under the circumstances, the omission
to act might indicate an error of judgment,
it did not show a negligent omission ; that
whether a resolution should be passed rested
in the discretion of the council and that

the corporation was not liable.--Id.
See ConstiTUTIONAL LAW, 4; Costs, 14;

16; RAILROADS, 6-8.

See Costs, 20; DEEDS, 2, 10, 11; EJECTMENT,

2, 3; ESTOPPEL, 2; FRAUD, 8, 9; INTER-


1. A complaint in an action against the alder-

men of a city for a violation of duty al-
leged that plaintiff was the lowest bidder
for a contract for lighting the streets and
was ready to comply with the requirement
as to security, but ihat defendants, in vio-
lation of their duty, awarded the contract
to another party. Held, That it failed to
set forth facts constituting a cause of action;
that as, in coming to a conclusion, even as
to whether plaintiff was the lowest bidder,
defendants were obliged to act in a quasi
judicial capacity their conduct comes within
ihe general rule of irresponsibility. - The

East River Gaslight Co. v. Donnelly et al., 71.
2. The duty imposed upon defendants by the

statute is a public duty to the city or to the
people at large, and not for the benefit of
individuals or the promotion of any private

3. In an action to recover damages for inju-

ries caused by the negligence of defendant,
which injuries were occasioned by the fall.
ing of a tree growing on a sidewalk in a
public street, and which after its fall was

1. In a prosecution for murder in the second

degree, when it appears from the evidence
that the prisoner and others, while under
the influence of liquor, for some unexplained
reason, became involved in a drunken brawl
with deceased, during which deceased was
struck with a stone and cut with knives,
but in such a way as not to inflict any
serious wounds, and that his death was
caused by meningitis, which might have
been produced by a blow on the head or a
fall, it is the duty of the court to direct the
jury that there was no proof of an intent to
kill, and that, therefore, the prisoner could
not be convicted of murder in the second
degree but only of manslaughter. Daly v.

The People, 488.
2. Where the death of another was caused by

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