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cision is a provision of law within the
meaning of the section.-Id.

4. Partial payments made by one of two joint
debtors will not revive the debt as against
the other.-Dunning v. Powell, 187.

5. The intention of the Code is to apply a
uniform statutory rule of limitation to all
concurrent remedies relating to the same
subject-matter; and a legatee seeking pay-
ment of his legacy will not be barred by
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.

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
in 1880. Held, That defendant could not
plead the statute of limitations.-Bean v.
Tonnele, 322.

7. A promissory note is presumed to be paid
after the lapse of twenty years.— 1d.

8. Creditors cannot compel an accounting by
an executor until eighteen months after the
granting of letters, and proceedings to sell
real estate to pay debts cannot be instituted
until after such time as may be actually
consumed in compelling an accounting.—
Mead v. Jenkins et al., 364.

9. A claim was due in February, 1871; the
debtor died in March, 1871, and adminis-
trators were appointed in April, 1871, who
accounted in October, 1877. A proceeding
to sell the real estate to pay the claim was
begun in February, 1880. Held, That it
was not barred by the statute.-Id.

10. The provisions of the Code of Civ. Pro.
prescribing the limitations within which
actions and special proceedings may be
maintained apply to and define the time
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
§ 382, Code Civ. Pro., applies to and gov-
erns a special proceeding by mandamus to
compel the Police Commissioners of the
city of New York to pay to a policeman a
portion of his salary wrongfully withheld
by them, the right to institute which occurr-
ed before the taking effect of the said sec-
tion of the Code, but which was not
instituted until after such taking effect, and
410 of the Code of Civ. Pro. also applies
to such proceeding, and the said limitation,
therefore, commences to run from the time
the relator had 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,

and not from the time of the demand
itself.-Id.

12. Where some items on each side of a mu-
tual account accrued within six years prior
to commencement of suit thereon, the
statute of limitations is no bar.-Eno v.
Diefendorf, 477.

See ADVERSE POSSESSION, 3; BANKS, 4;
FRAUD, 12, 13; NEGOTIABLE PAPER, 4;
PARTNERSHIP, 6; TRUSTS, 5.

LIVERY STABLES.
See LIEN, 1.

LOTTERY.

1. One who purchases a lottery ticket with
the intent of informing against the seller is
not an accomplice.-The People v. Noelke
et al., 134.

2. The statute against lotteries is not un-
constitutional. - Id.

3. On the trial of an indictment for selling
lottery tickets the defendant on cross-
examination may properly be asked wheth-
er he has been engaged in that business
prior to the offence charged and whether he
has been convicted for sending matter in
relation to lotteries through the mail.—Id.

LUNATICS.

1. The mere fact that some of the defendants
in an action of partition were persons of un-
sound mind is not sufficient to release a
purchaser on a sale under the judgment in
such action.-Prentiss v. Cornell, 464.

2. Lunatics may be sued and the personal
service of the summons and complaint upon
them confers jurisdiction of their persons.-
Id.

MALICIOUS PROSECUTION.

See FALSE IMPRISONMENT, 1; PLEADING, 1, 4.

MANDAMUS.

1. Where an Illuminating Company has been
duly authorized by the municipal authori
ties to erect poles in the streets, and in pur-
suance thereof erects a pole without con-
sent of the owner of the adjacent premises
and without compensation to him. a man-
damus cannot be granted against the offi-
cers of the city to compel the removal of
such pole, but the remedy is by action.-
The People ex rel. McManus v. Thompson et
al., 572.

See JUSTICES OF THE PEACE, 3, 4; LIMITA-
TION, 11; Towns, 1.

MANSLAUGHTER.

See MURDER.

MARINE INSURANCE.

1. An independent voyage undertaken after a
vessel has left the port of her departure in
pursuit of the insured voyage without the
intention of returning causes a forfeiture of
the insurance.-Snyder et al. v. The Atlan-
tic Mut. Ins. Co., 446.

2. Preparations for the voyage from Bermu-
da to New York were begun June 30. On
July 2, and again on the 3d, after receiving
clearance papers, the tug insured towed ves-
sels to sea, and on the latter occasion she
did not return to her berth, but went to a
coaling station and thence proceeded on
her voyage and was lost. Held, That the
policy attached at the date preparations for
the voyage were begun, and that the trips
made July 2 and 3 were such deviations as
vitiated the insurance.-Id.

MARRIAGE.

1. In a case where cohabitation was illicitly
commenced, and had been meretriciously
continued for a long time, but is alleged by
one of the parties to have been subsequently
changed into a lawful marriage, and an ac-
tion for divorce is brought by such party
on the ground of the adultery of the other
party in marrying a third person, while
evidence tending to show by presumption
or inference that a contract of marriage has
in fact been made will not be excluded, the
court will be very cautious in making such
deductions or inferences where the party
alleging the making of the contract fails to
establish it by his or her direct testimony;
and in such a case the court may refuse to
find that such contract has been made,
although if the rights of third parties or the
legitimacy of children born to plaintiff and
defendant during their cohabitation had
been involved a marriage would have been
found from the evidence of an inferential
nature produced. — Harbeck v. Harbeck,
525.

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
the contract of marriage that it was in fact
made.-ld.

MARRIED WOMEN.

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
woman; her promise to repay; her prom-
issory note given therefor, charging her
separate estate; the endorsements thercon ;
ownership by plaintiff, protest and notice.
Held, That a demurrer on the ground that
the complaint did not state facts sufficient
to constitute a cause of action was frivo-
lous.-Id.

See CONTRACT, 3.

MASTER AND SERVANT.

1. In an action for false imprisonment when
it appears that the wrongful imprisonment
complained of was caused by one of the
defendants' servants on suspicion that the
plaintiff had stolen articles from defendants'
store, the defendants are not liable unless
such act of their servant was authorized by
them; and the question as to whether such
servant was so authorized, there being a cou-
flict of testimony on that point, is one for
the determination of the jury.- Wallach v.
Ridley et al., 16.

Its

2. Defendant, by agreement with a railroad
company, had the use of a side-track which
connected its mill with the main line.
roadway and equipment were furnished in
part by each. Held, That defendant was
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
of the railroad company were not co-
employees.-Roach v. The Fort Orange
Paper Co., 124.

3. No one saw the deceased killed, and the
circumstances were such that he might
have been struck by defendant's train or
by that of the railroad company.
That the question was for the jury.—Id.

Held,

4. Defendants instructed their employees not
to show styles or give prices to persons who
came from other stores to look at styles or
obtain prices. Defendants' floorwalker,
judging plaintiff to be such a person, or-
dered the sales woman to take from plain-
tiff's person a cloak which she was trying
on and this was done. Held, That this was
an assault for which defendants were lia-
ble.-Geraty v. Stern et al., 187.

5. An employer is liable in case he fails to
observe reasonable care in protecting the
persons employed by him from the risks of
injury. Berg v. The Tilly Foster Mining
Co., 343.

6. The master is not responsible for the mere
negligence of one employee whereby an-
other employee is injured, and the grade of
the negligent employee is not material.-
Newbauer v. The N. Y., L. E. & W. RR.
Co., 402.

See ANIMALS; EVIDENCE, 14, 15; NEGLI-
GENCE, 1; RAILROADS, 17, 18; SERVICES,
2; USURY, 6, 7.

MECHANICS' LIENS.

1. Under the Onondaga act, a lien may be
foreclosed by the assignee of the claim
Brown v. Gregory et al., 45.

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-

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 the 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
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
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.
Barney, 367.

MINISTERS.

See TAXATION, 7.

MISTAKE.

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.

See LIFE INSURANCE, 3, 4.

MORTGAGE.

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-

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-
ners, 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 cur-
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-
ness.-Id.

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-

nally liable, executed mortgages to a trustee
in pursuance of an agreement or declaration
of trust whereby it was agreed that each
should pay one-third of the amount of such
notes as the company should fail to pay,
and that if either party should pay more
than his share he should recover from the
one failing to pay an amount equal to his
aliquot part, and that the trustee, on request
of the party so paying, should foreclose the
mortgage made by the party in default and
reimburse the party who had paid. Held,
That the holders of the notes had no in-
terest in the mortgages and they could not
be enforced for their benefit.-Seward et
al. v. Huntington, 222.

7. A usurious mortgage which includes the
amount of a prior valid mortgage which
was assigned to the holder of the usurious
mortgage cannot be used as a defense to an
action upon such valid mortgage.-Allison
v. Schmitz et al., 265.

8. One J. owned a farm, situated partly in
this State and partly in New Jersey, subject
to mortgage. He conveyed five acres there-
of in this State, and subsequently, but be-
fore 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, re-
spondent, who owned the five acres, ten-
dered 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.- Wel-
ling v. Ryerson, 302.

9. All the land in this State, except such five
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 expen-
ses. Held, That respondent was entitled to
have his land released.-Id.

10. When a mortgagee enters into a stipula-
tion with the mortgagor that the former
should enter into possession of the mort-
gaged 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 con-
tinue until the mortgage debt should be re-
duced to a certain sum, and the mortgagee
enters into possession under such stipula-
tion, 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 pro-
ceed and foreclose the mortgage.-The
Union Dime Savings Bk. v. Quinn, 304.
11. A mortgagor who conveys the mort-

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gaged premises to a grantee who assumes
the payment of the mortgage becomes
thereby a surety only for the payment of
the debt, and the receipt by the mortgagee
of a new bond from such grantee, without
the knowledge or assent of the original
mortgagor, extending the time of payment
and changing the period on the occurrence
of which a default in the payment of the
interest would render the principal sum
due, discharges his liability as sucli surety,
provided the mortgagee, at the time of re-
ceiving such bond, had notice or understood
that the original mortgagor had become, by
force of his deed, a surety only for the pay-
ment of the debt, and the recording of such
deed is not sufficient notice of such fact.-
The Star Fire Ins. Co. v. Waddington, 307.
12. It is not necessary to make the husband
a party to a foreclosure of a mortgage ex-
cuted by the husband and wife upon prop-
erty the title to which was in the wife at
the time of executing such mortgage, to
make a valid title.-The Trustees of Jones
Fund v. Roth, 459.

13. A debtor is not obliged, when no place of
payment is mentioned in the obligation, to
follow his creditor out of the State to make
a valid tender, for willingness and readi-
ness to pay under such circumstances with-
in the State is equivalent to payment for
the purpose of avoiding a forfeiture.-Olm-
stead et al. v. Wehle et al., 486.

14. A mortgagee will not be permitted to take
an unconscionable advantage of the mort-
gagor who is ready and willing to pay the
mortgage debt, and the creditor who se-
cures his debtor's default will not be per-
mitted to take advantage of such default
for the purpose of enforcing a forfeiture.-
Id.

15. Plaintiff purchased of defendants a bond
and mortgage and took a guaranty of pay
ment. Thereafter she purchased the de-
cree on foreclosure of a concurrent mort-
gage and bid in the property on a sale there-
under for a nominal price and took a deed
thereof. Defendants were not parties to
the foreclosure action. Held, That plain-
tiff by her acts extinguished the guaranteed
mortgage; that as the guaranty was one of
payment and not of collection plaintiff was
not bound to foreclose unless required to do
so by the guarantors and was not at liberty
to do any affirmative act which would im-
pair the security or deprive defendants of
any benefits therefrom on payment of the
guaranty.-Humphrey v Hayes et al., 541.

16. The assignment contained a covenant that
the mortgage was a first lien. One of
the defendants had formerly owned a mort-
gage that was a concurrent lien. It did
not appear that the other defendant knew
of the other mortgage or that plaintiff
was ignorant of it. Held, That the facts
were not sufficient to sustain a finding of

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 his 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-
gage. 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 not as-
sume. 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 only 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,
550.

See Costs, 20; Deeds, 2, 10, 11; EJECTMENT,
2, 3; ESTOPPEL, 2; FRAUD, 8, 9; INTER-
PLEADER; LEASE, 1; RECEIVERS, 9, 10;
RECORD; SUBROGATION; USURY, 2.

MUNICIPAL CORPORATIONS.

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 that 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
the 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
interest. Id.

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

found to be rotten from its roots up to a
dangerous degree, the evidence being con-
flicting as to whether there 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 had
notice for a 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
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;
ESTOPPEL, 5; MANDAMUS; NEGLIGENCE,
16; RAILROADS, 6-8.

MURDER.

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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