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