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a concrete elevator, or otherwise.-Swenson v. kowski v. Nichols Copper Co., 137 N. Y. S.
$ 252 (N.Y.Sup.) The payment of a sum of
covery for injuries to the servant caused there-
8 265 (N.Y.Sup.) The burden is on an em-
negligent failure to guard a vat to prevent
of the injured employé is not to maintain a guard.-Bell v. Proctor & Gamble
8 265 (N.Y.Sup.) The doctrine of res ipsa
circumstances support a conclusion of vigilance
on the part of the master.–Pyne v. Marx &
Rawolle, 137 N. Y. S. 338.
8 265 (N.Y.Sup.) In an action for injuries to
bility of guards, or that there was no reason-
$ 270 (N.Y.Sup.) In an action for personal
a machine had been in operation about 142
$ 278 (N.Y.Sup.) In an action for injury to
-Kaminsky v. Benisch, 137 N. Y. S. 258.
A servant, knowing of a fellow servant's hab- a street railroad for the death of one operating
held not to establish negligence on the part of
the defendant.--Smith v. American Ice Co., 137
$ 236 (N.Y.Sup.) Where a flagman sent to $ 278 (N.Y.Sup.) In an action for injuries to
gent in not providing a hood over a cotton
a workman on a building, caused by falling of
a finding of negligence.--Ferguson v. Turner
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER
$ 81, providing that children under 16 should ferty of defendant B., a corporation, ran into not be permitted to run sucb machines, is prima plaintiff, and that defendant, its servants or facie evidence of negligence.-Bachmann v. Lit- ugents, so negligently drove the automobile that tle, 137 N. Y. S. 699.
plaintiff was struck thereby, is sufficient to ad$ 286 (N.Y.Sup.) Whether failure of an em
mit evidence that G. was the negligent servant,
8 286 (N.Y.Sup.) In an action for injuries to the contractors at work on the building, held
$ 332 (N.Y.Sup.) Evidence, in an action for
MEASURE OF DAMAGES. ed the risk held, under the evidence, a jury See Damages, $ 113. question.-Bell v. Proctor & Gamble Mfg. Co., 137 N. Y. S. 266. $ 288 (N.Y.Sup.) In an action for injuries to
MECHANICS' LIENS, an employé, caused by unguarded cogs in his See Judgment, $$ 490, 590. 614, employer's factory, whether the plaintiff assumed the risk of injury held, under the evidence, for the jury.--Schultis v. Waterbury
II. RIGHT TO LIEN. Co., 137 N. Y. S. 352.
(B) Services Rendered and Materials Fur$ 289 (N.Y.Sup.) In an action for the death
nished. of one operating a freight car, crushed between § 36 (N.Y.Sup.) An architect was not entitled the car and an ice wagon standing behind it, to a mechanic's lien for his services in drawing evidence held sufficient to go to the jury on the plans and specifications, separate from his work question of deceased's contributory negligence.- of supervision.-Spannhake v. Mountain Const. Smith v. American Ice Co., 137 N. Y. S. 290. Co., 137 N. Y. S. 900.
$ 289 (N.Y.Sup.) In an action for injuries from unguarded cogs, whether plaintiff was
(C) Agreement or Consent of Owner. guilty of contributory negligence held, under $ 64 (N.Y.Sup.) The fact that two corporathe evidence, for the jury.-Schultis v. Water- tions have certain officers and offices in combury Co., 137 N. Y. S. 352.
mon, and are each interested in the develop8 289 (N.Y.Sup.) In an action for injury to ment of a tract of land, does not make them an employé in a tunnel shaft, caused by a identical, so as to render a contract of sale by hoisting cage descending upon him without one of them, calling for the erection by the purwarning, whether he was guilty of contributory chaser of buildings on the land, a consent of negligence, held, under the evidence, a jury ques- the other, a subsequent purchaser, to the imtion.-Fogarty v. Pittsburg Contracting Co., 137 provement, which will subject its interest in N. Y. S. 589.
the land to a mechanic's lien for the improve
ment.-Fanning v. Belle Terre Estates, 137 N. IV. LIABILITIES FOR INJURIES TO Y. S. 595. THIRD PERSONS.
$ 73 (N.Y.Sup.) Under Lien Law, $ 3, held,
that work done by a contractor for a lessee was (B) Work of Independent Contractor.
not done with the owner's consent so as to $ 316 (N.Y.Sup.) A teamster employed by de- render him liable for the cost thereof.-McNulty fendant to bring back with his team on his Bros. v. Offerman, 137 N. Y. S. 27. return from a trip to town a load of freight, Held, that certain work done under contract without any direction or control by defendant with a lessee was with the consent of the own. as to method of loading or otherwise, was an in- er, and that certain other work was not with dependent contractor, and not a servant of de his consent within the Lien Law, $ 3.-Id. fendant; so that it was not liable for injury to another from his negligence in loading-Hop- contractor to enforce a mechanics' lien on cer
$75 (N.Y.Sup.) It is sufficient to enable & kins v. Empire Engineering Co., 137 N. Y. S. tain property, that the owner had knowledge 478.
of and consented to the furnishing of the ma(C) Actions.
terials and the performing of the labor, though $ 329 (N.Y.Sup.) The complaint, alleging that she was not personally liable for the debt.defendant G., driving an automobile, the prop-1 Pierce v. Kinney, 137 N. Y. S. 475.
(D) Persons Entitled in General.
MEETINGS. $93 (N.Y.Sup.) A lien claimant, beginning See Corporations, & 201. work with the consent of the owners, held not to have substantially performed its contract so
MEMBERS. as to establish a lien as against the owners.McNulty Bros. v. Offerman, 137 N. Y. S. 27. See Trade Unions.
A lien claimant, seeking to enforce his claim against an owner, who had consented to the
MEMORANDA. doing of the work, must prove that the work has been substantially performed, or that the Sss Wills, $ 487. owner himself has prevented compliance with the contract.-Id.
MERGER III. PROCEEDINGS TO PERFECT. See Contracts, 8 245.
$ 122 (N.Y.Sup.) A notice of a lien for materials under Laws 1897, C. 418, which does
METERS. not state the agreed price for the materials, See Gas. but only states the amount unpaid as the agreed price, is defective.-Fanning v. Belle Terre Es
MINES AND MINERALS. tates, 137 N. Y. S. 595.
A notice of a lien for labor and materials un- See Joint Adventures, $ 5.
See Infants. $ 124 (N.Y.Sup.) A defect in a notice of lien
See False Pretenses; Fraud.
MISTAKE. erty is a necessary party in an action to fore See Municipal Corporations, $ 358. close a mechanic's lien; and, the action being by a subcontractor, the contractor is a proper
MODIFICATION, party, and for preserving right of personal judg. ment against him, in case of failure to estab- See Contracts, & 237. lish the lien, a necessary party.--George W. Maltby & Sons Co. v. Charles P. Boland Co.,
MONEY LENT. 137 N. Y. S. 470. $ 277 (N.Y.Sup.) The principal contractor,
$7 (N.Y.Sup.) A plaintiff, suing for money made a defendant in an action by a subcon- loaned, who introduced in evidence his check, tractor for foreclosure of his lien, held entitled payable to the order of defendant and collected under its answer to a trial of the issues, in- by him, and who testified that the check was volving equities and the determination of rights given as a loan on funds standing to bis credit between all parties, of the work and material in the bank, and that the loan had not been reof subcontractors having been in accordance paid, established a prima facie case.-Siebrecht with the principal contract, and the refusal to v. Siebrecht, 137 N. Y. S. 1073. accept the same, and to issue the certificate of Evidence held not to sustain a verdict for the architect being unwarranted, and this plaintiff.--Id. though an action by the principal contractor A plaintiff, suing to recover for money loanagainst the owner is pending.-George W. Malt- ed, has the burden of establishing the loan by by & Sons Co. v. Charles P. Boland Co., 137 a fair preponderance of the evidence.-Id. N. Y. S. 470. $ 280 (N.Y.Sup.) In action to enforce a lien
MONOPOLIES. for materials, exclusion of evidence on the part of the claimant as to the purposes for whichi See Injunction, $ 136. the materials were used held error.--McNulty Bros. v. Offerman, 137 N. Y. S. 27.
II. TRUSTS AND OTHER COMBINA$ 290 (N.Y.Sup.) Findings in a proceeding to
TIONS IN RESTRAINT enforce a mechanic's lien held inconsistent with
OF TRADE. a judgment dismissing the claim, so as to en. $ 12 (N.Y.Sup.) A combination designed to title the claimant to urge such inconsistency as promote the interest of a particular trade, dia ground of reversal.- McNulty Bros. v. Offer- minish waste, give better service, extend the man, 137 N, Y. S. 27.
business, and secure better prices is not necesFor cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER
sarily violative of the law, and an averment | sume a mortgage.- Newton v. Evers, 137 N. Y.
shaling of securities.-Hubbard v. Lydecker, 137
POWER OF SALE, ing a difference in the grades on parts of the $ 372 (N.Y.Sup.) Where the purchaser at an two lines.-Delavan v. New York, N. H, & H. invalid foreclosure of a second mortgage reR. Co., 137 N. Y. S. 207.
conveyed to the holder of the mortgage, the Stockholders of one railroad company can
mortgagee continued to hold the mortgage as if sue in equity in a state court to enjoin à par no foreclosure had occurred; and a subsequent allel and competing railroad company from ac- conveyance to a third person operated, in eqquiring a controlling interest in the former uity, as an assignment of the mortgage.road, in violation of the Sherman Anti-Trust Ketcham v. Deutsch, 137 N. Y. S. 402. Act; but the stockholders have no standing to complain of any acts other than the transfer invalid mortgage foreclosure sale conveyed the
Where one claiming under a purchaser at an of the coptrol of the road.-Id.
premises to a third person, who paid a part
of the price in cash, the third person was eq. MONUMENTS.
uitably interested in the premises in the proSee Waters and Water Courses, § 93.
portion his payment bore to the mortgage in.
debtedness, subject to deductions for independMORTGAGES.
ent loans obtained by him from his vendor.
-Id. See Guaranty, $ 36; Insurance, § 238; Lis
Pendens, $ 24; Payment, $ 21; Pleading, $8 X. FORECLOSURE BY ACTION. 126, 359; Subrogation; Usury, § 128; Ven
(D) Limitations and Laches. dor and Purchaser, $ 305.
8 425 (N.Y.Sup.) Laches of a mortgagee in III. CONSTRUCTION AND OPERA foreclosing will be set off against laches of a TION.
former owner, who assumed the mortgage, in
failing to protect himself against accumulation (B) Parties and Debts or Liabilities Se
of interest by taking an assignment of the cured.
mortgage and foreclosing.–Newton v. Evers, $115 (N.Y.Sup.) On substitution of mortgage 137 N. Y. S. 507. security, the mortgage in suit held to have become a purchase-money mortgage.-Hubbard v.
(J) Sale. Lydecker, 137 N. Y. S. 714.
$ 521 (N.Y.Sup.) Right of adjoining property
owner to an easement over certain of the mort. (C) Property Mortgaged, and Estates of gaged property held a defect in the title, auParties Therein.
thorizing the purchaser under foreclosure de. $ 132 (N.Y.Sup.) On substitution of mortgage cree to refuse to comply with his bid.—Ridley security, the new mortgage held to be primarily v. Walters, 137 N. Y. S. 1030. a lien on the land covered by the original mortgage; a lot given as additional security stand
(K) Deficiency and Personal Liability. ing in the position of a guarantor of collection. -Hubbard v. Lydecker, 137 N. Y, S. 714.
$ 556 (N.Y.Sup.) A former owner of land held
not entitled to avoid liability for a deficiency (D) Lien and Priority.
on mortgage foreclosure, on theory that there § 151 (N.Y.Sup.) Under Laws 1897, c. 418, Evers, 137 N. Y. S. 507.
was no title to support mortgage.--Newton V. $ 3, liens for work and materials in the erection of buildings held not superior to a pur- judgment of foreclosure and sale of real estate
$ 559 (N.Y.Sup.) Where interlocutory chase-money mortgage on the premises.-Fanning v. Belle Terre Estates, 137 N. Y. S. 595. provided that, if any deficiency should result
the plaintiff should be entitled to a personal VI. TRANSFER OF PROPERTY MORT. judgment against the obligor upon the bond, but GAGED OR OF EQUITY OF
no sale was in fact made, because the property REDEMPTION.
was sold under the foreclosure of a prior mort
gage, which resulted in a deficiency the plaintiff $ 275 (N.Y.Sup.) A grantee of land held es was 'entitled to enter a personal judgment for topped to claim title against a mortgage given the undisputed deficiency:-Davies v. Freund, under a chain of title originating with an in- 137 N. Y. S. 735. sane person's committee's unauthorized convey. The mere delay in entering a deficiency judg. ance. -Newton v. Evers, 137 N. Y. S. 507.
ment on foreclosure of a mortgage, in the ab$ 280 (N.Y.Sup.) A deed, reciting that it sence of prejudice to the defendant or any should be subject to possession of an actual change in the situation of the parties, will not occupant, made the occupant's possession that constitute such laches as to deprive plaintiff of of the grantee, supporting his promise to as that right to such relief, especially where the
time to sue on the evidence of the debt had not Landlord and Tenant, & 186; Limitation of expired.--Id.
Actions, $ 120; Mandamus, § 187; Naviga8 561 (N.Y.Sup.) The 20-year statute of lim ble Waters, 36; Sales, 88 405, 418; Schools itations, and not laches, will bar suit to en and School Districts; Street Railroads; Taxforce a deficiency on mortgage foreclosure ation, $ 876; Theaters and Shows; Trover against a former owner, who assumed the debt. and Conversion, $ 33; Waters and Water -Newton v. Evers, 137 N. Y. S. 507.
Courses, $ 203. (L) Disposition of Proceeds and Surplas. V. OFFICERS, AGENTS, AND EM$ 564 (N.Y.Sup.) A mortgagee having two lots
PLOYÉS. as security will be compelled to satisfy his claim (B) Municipal Departments and Officers out of the proceeds of one of them, if they are
Thereof. sufficient for that purpose, as against another mortgagee who holds only the other lot as se under Greater New York Charter (Laws 1897,
$ 186 (N.Y.Sup.) A_police matron, appointed curity for his debt.-Hubbard v. Lydecker, 137
c. 378) 88 372–381, as added by Laws 1899, c. N. Y. S. 714.
674, to receive the salary of doorman under XI. REDEMPTION.
section 299 of the charter, held not entitled to
the salary of a patrolman under Laws 1912, c. $ 594 (N.Y.Sup.) Where a mortgagor averred 449.-Priess v. Waldo, 137 N. Y. S. 815. in his affidavit that payments on the price of $ 205 (N.Y.Sup.) Under the Village Law the the mortgaged premises and interest on defer- board of water commissioners of a village has red payments were paid with his pension money, the power to fix water rates and collect water and the holder of the judgment of foreclosure rents.-Village of Liberty 5. Newkirk, 137 N. averred that she desired to hold it as an invest. Y. S. 494. ment, and the property, if subject to a judg. ment creditor's lien, was sufficient to satisfy
(C) Agents and Employés. it and the mortgage, the judgment creditor was not entitled to an order directing the holder 14, 16, 22, an honorably discharged soldier
§ 217 (N.Y.Sup.) Under Civil Service Law, $$ of the judgment of foreclosure to transfer it could not be transferred from the position of to him.-Danvers v. Sly, 137 N. Y. S. 302.
pumping engineer at the water plant of a city
to the position of fireman at a new station esMOTIONS.
tablished by the city, unless he by competitive See Adoption, & 16; Attorney and Client, 8 examination demonstrated his fitness for the 190; Costs, $ 153, Depositions; Indictment | new position.-In re Owens, 137 N. Y. S. 308. and Information, $ 140; Justices of the
IX. PUBLIC IMPROVEMENTS. Peace, 88 73, 74; Pleading, 88 350-364.
Make Improvements $ 42 (N.Y.Sup.) The granting of a second mo
Grant Aid Therefor.
$ 280 (N.Y.Sup.) The grade of a street held leave for renewal not obtained held improper. to have been established, so as to preclude any -American Hosiery Co. v. Himler, 137 N. Y. change, except on petition of the owners of a S. 702.
major part of the abutting property.-Scott v. $ 59 (N.Y.Sup.) While there is no sanction McClung, 137 N. Y. $. 661.
If the proposed levels of the street which is for a motion before one judge at Special Term to be paved will tend to make it generally to review or declare void the order of another higher or generally lower than it is at present judge at Special Term, the proper practice being to move for a rehearing or appeal to the amount to a change in grade.-Id.
or has been in the past, the paving will Appellate Division, yet, where the judge making the order is dead, such a motion may be
8 288 (N.Y.Sup.) Greater New York Charter considered on the merits.-In re Soules Hospi- (Laws 1901, c. 466) $ 1541, held not to apply tal and Training School for Nurses, 137 N. Y. to an excavation contract at a fixed rate per S. 504.
yard for work, the cost of which was not as
certainable until measurement after completion; MOTOR VEHICLES.
such contracts being provided for by section
149.-R. G. Packard Co. v. City of New York, See Highways.
137 N. Y. S. 9. MOVING PICTURES.
(C) Contracts. See Indictment and Information, $ 63; Injunc
$ 352 (N.Y.Sup.) Contract with a city for tion, $ 136; Licenses, g 39;' Theaters and the excavation of a bulkhead line construed, Shows.
and held to necessitate and contemplate com
pensation to the contractor for work done withMUNICIPAL CORPORATIONS.
in 45-degree lines from the junctions between
loose rock and ledge rock determined after the See Certiorari; Constitutional Law, $ 92 ; Con- blasting work had begun.-R. G. Packard Co.
tempt, $ 55; Counties; Courts, $$ 188, 189; v. City of New York, 137 N. Y. S. 9.