a concrete elevator, or otherwise.-Swenson v. | kowski v. Nichols Copper Co., 137 N. Y. S.
Charles T. Wills, 137 N. Y. S. 516.
586.

(E) Fellow Servants.

§ 162 (N.Y.Sup.) An operator of a copper
working plant, maintaining in the conduet of
his business small tracks supplied with flat cars
on which copper bars were transported about
the plant by means of hand power, was not
guilty of negligence for failing to employ a su-
perintendent to have charge of the men direct-
ed to move the cars.-Kwiatkowski' v. Nichols
Copper Co., 137 N. Y. S. 586.

$173 (N.Y.Sup.) The master, not knowing or
being advised of the habit, is not liable to an
injured servant because of the incompetency of
a fellow servant on account of his habit of

drinking.-Santiago v. John E. Walsh Steve-

dore Co., 137 N. Y. S. 611.

§ 176 (N.Y.Sup.) Any incompetency of a fel-
low servant of the injured employé is not
ground for recovery; he having nothing to do
with the management of the appliances in con-
nection with which the accident arose.-Santia-
go v. John E. Walsh Stevedore Co., 137 N. Y.

S. 611.

(F) Risks Assumed by Servant.
$217 (N.Y.Sup.) An employé held not to as-
sume the risk of dangers of which he did not
know, and could not have ascertained in the
exercise of reasonable care.-Schultis v. Wa-
terbury Co., 137 N. Y. S. 352.

$217 (N.Y.Sup.) A stevedore of eight years'
experience, acting as gangwayman in the load-
ing of a vessel, must have known of any dan-
ger, from the absence of lights, the fact that
there was only one skid on which to rest the
freight, after it was raised to the deck, before
being lowered into the hold, and the fact that
the foreman and winchman were drunk, all of
which was known to him, and so assumed the
risk. Santiago v. John E. Walsh Stevedore
Co., 137 N. Y. S. 611.

An employé, appreciating any danger from the
absence of an appliance, and going on with his
work when his demand for the supplying of the
appliance was refused, assumes the risk.-Id.

A servant, knowing of a fellow servant's hab-
it of drinking, and that he was drunk at the
time of the accident, assumed the risk of his
incompetency on that account.-Id.

(H) Actions.

$252 (N.Y.Sup.) The payment of a sum of
money equal to wages held not a recognition
of liability by an employer for an injury, so
as to waive notice required as condition to an
action by the employer's liability act.-
Schultis v. Waterbury Co., 137 N. Y. S. 352.
§ 252 (N.Y.Sup.) The negligent failure of a
master to provide a reasonably safe place for a
servant to work is a common-law ground of re-
covery for injuries to the servant caused there-
by, unaided by service of notice under the Em-
ployer's Liability Act.-Kwiatkowski v. Nichols
Copper Co., 137 N. Y. S. 586.

ployer, sued for injury resulting from alleged
§ 265 (N.Y.Sup.) The burden is on an em-
negligent failure to guard a vat to prevent
splashing, to show that it was impracticable
to maintain a guard.-Bell v. Proctor & Gamble
Mfg. Co., 137 N. Y. S. 266.

loquitur held not to be invoked to support an
§ 265 (N.Y.Sup.) The doctrine of res ipsa
action for injuries to a servant, where the
circumstances support a conclusion of vigilance
on the part of the master.-Pyne v. Marx &
Rawolle, 137 N. Y. S. 338.

§ 265 (N.Y.Sup.) In an action for injuries to
an employé, a showing of unguarded cogs held
to place the burden of proving the impractica-
bility of guards, or that there was no reason-

able ground to apprehend danger, on the de-
fendant.-Schultis v. Waterbury Co., 137 N. Y.

S. 352.

$270 (N.Y.Sup.) In an action for personal
injuries, the exclusion of evidence to show that
a machine had been in operation about 1/2
years without accident, and also that for more
than 20 years the defendant had been using
some 20 similar machines without accident, was
error.-Bachmann v. Little, 137 N. Y. S. 699.

$278 (N.Y.Sup.) In an action for injury to
an employé, caused by a falling derrick, evi-
dence held to warrant a finding of negligence.
Kaminsky v. Benisch, 137 N. Y. S. 258.

§ 278 (N.Y.Sup.) Evidence in an action against
a street railroad for the death of one operating
a freight car, killed by being crushed between
the car and an ice wagon standing behind it,
held not to establish negligence on the part of
the defendant.-Smith v. American Ice Co., 137
N. Y. S. 290.

(G) Contributory Negligence of Servant.
§ 236 (N.Y.Sup.) Where a flagman sent to § 278 (N.Y.Sup.) In an action for injuries to
flag a train sat down on the end of a tie and an employé, evidence held to show that guards
fell asleep, there was no liability for his in- over cogs were necessary, and not impractica-
jury by being struck by the train, in the ab-ble.-Schultis v. Waterbury Co., 137 N. Ỷ. S. 352.
sence of negligence of the engineer after see-
ing him in peril.-Bragg v. Central New Eng-
land Ry. Co., 137 N. Y. S. 273.

§ 236 (N.Y.Sup.) An employé held not bound
to be mindful of surrounding dangers at all
times and under all circumstances, even though
aware of their existence.-Schultis v. Water-
bury Co., 137 N. Y. S. 352.

§ 278 (N.Y.Sup.) Evidence held insufficient
to justify a verdict that defendant was negli-
gent in not providing a hood over a cotton
cleaning machine, into which plaintiff's hand
was thrust and injured.-Gombcos v. Union
Mills, 137 N. Y. S. 408.

§ 278 (N.Y.Sup.) In an action for death of
a workman on a building, caused by falling of
a timber, evidence held insufficient to warrant
on a finding of negligence.-Ferguson v. Turner
Const. Co., 137 N. Y. S. 449.

§ 238 (N.Y.Sup.) An employé, injured while
assisting in moving by hand power cars
small tracks in a copper working plant, held
not entitled to recover, either at common law $278 (N.Y.Sup.) To permit an infant to run
or under the Employer's Liability Act.-Kwiat-' a dangerous machine, in violation of Labor Law,

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

§ 81, providing that children under 16 should not be permitted to run such machines, is prima facie evidence of negligence.-Bachmann v. Little, 137 N. Y. S. 699.

$286 (N.Y.Sup.) Whether failure of an employer to guard a vat to prevent splashing of an injurious liquid upon a workman was negligent, in view of the requirement, under Labor Law, 81, that vats be guarded, held, under the evidence, a jury question.-Bell v. Proctor & Gamble Mfg. Co., 137 N. Y. S. 266.

§ 286 (N.Y.Sup.) In an action for injuries to a servant evidence held to require submission to the jury of the questions of defendant's negligence in failing to provide plaintiff with a safe place to work and in failing to give him proper instructions.-Tellock v. International Paper Co., 137 N. Y. S. 357.

$286 (N.Y.Sup.) Whether an embossing machine was a dangerous one, within Labor Law, $ 81, providing that "children under 16 years of age shall not be permitted to operate or assist in operating dangerous machines of any kind," was properly submitted to the jury. Bachmann v. Little, 137 N. Y. S. 699.

erty of defendant B., a corporation, ran into plaintiff, and that defendant, its servants or agents, so negligently drove the automobile that plaintiff was struck thereby, is sufficient to admit evidence that G. was the negligent servant, and was at the time engaged in the business of defendant B.-Pangburn v. Buick Motor Co., 137 N. Y. S. 37.

§ 330 (N.Y.Sup.) In an action for injuries to one on whom a block of wood fell from a building in course of construction, defendant, one of the contractors at work on the building, held not to have been subjected to the burden of explaining the accident by a mere allegation of the complaint that his negligence caused the injury. Strnad v. William Messer Co., 137 N. Y. S. 914.

$ 332 (N.Y.Sup.) Evidence, in an action for being run into by an automobile driven by an employé of its owner, held sufficient to go to the jury on the question of his having been engaged in running it in the business of the master at the time of the accident.-Pangburn v. Buick Motor Co., 137 N. Y. S. 37.

MEASURE OF DAMAGES.

$288 (N.Y.Sup.) Whether a workman assumed the risk held, under the evidence, a jury See Damages, § 113. question.-Bell v. Proctor & Gamble Mfg. Co., 137 N. Y. S. 266.

MECHANICS' LIENS.

§ 288 (N.Y.Sup.) In an action for injuries to 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 Co., 137 N. Y. S. 352.

$289 (N.Y.Sup.) In an action for the death of one operating a freight car, crushed between the car and an ice wagon standing behind it, evidence held sufficient to go to the jury on the question of deceased's contributory negligence.Smith v. American Ice Co., 137 N. Y. S. 290.

§ 289 (N.Y.Sup.) In an action for injuries from unguarded cogs, whether plaintiff was guilty of contributory negligence held, under the evidence, for the jury.-Schultis v. Waterbury Co., 137 N. Y. S. 352.

§ 289 (N.Y.Sup.) In an action for injury to an employé in a tunnel shaft, caused by a hoisting cage descending upon him without warning, whether he was guilty of contributory negligence, held, under the evidence, a jury question.-Fogarty v. Pittsburg Contracting Co., 137

N. Y. S. 589.

II. RIGHT TO LIEN.

(B) Services Rendered and Materials Fur

nished.

§ 36 (N.Y.Sup.) An architect was not entitled to a mechanic's lien for his services in drawing plans and specifications, separate from his work of supervision.-Spannhake v. Mountain Const. Co., 137 N. Y. S. 900.

(C) Agreement or Consent of Owner. § 64 (N.Y.Sup.) The fact that two corporations have certain officers and offices in common, and are each interested in the development of a tract of land, does not make them identical, so as to render a contract of sale by one of them, calling for the erection by the purchaser of buildings on the land, a consent of the other, a subsequent purchaser, to the improvement, which will subject its interest in the land to a mechanic's lien for the improvement.-Fanning v. Belle Terre Estates, 137 N.

IV. LIABILITIES FOR INJURIES TO Y. S. 595.
THIRD PERSONS.

(B) Work of Independent Contractor. 8316 (N.Y.Sup.) A teamster employed by defendant to bring back with his team on his return from a trip to town a load of freight, without any direction or control by defendant as to method of loading or otherwise, was an independent contractor, and not a servant of defendant; so that it was not liable for injury to another from his negligence in loading.-Hopkins v. Empire Engineering Co., 137 N. Y. S.

478.

(C) Actions.

$329 (N.Y.Sup.) The complaint, alleging that defendant G., driving an automobile, the prop

§ 73 (N.Y.Sup.) Under Lien Law, § 3, held, that work done by a contractor for a lessee was not done with the owner's consent so as to render him liable for the cost thereof.-McNulty Bros. v. Offerman, 137 N. Y. S. 27.

Held, that certain work done under contract with a lessee was with the consent of the owner, and that certain other work was not with his consent within the Lien Law, § 3.-Id.

contractor to enforce a mechanics' lien on cer$75 (N.Y.Sup.) It is sufficient to enable a tain property, that the owner had knowledge of and consented to the furnishing of the materials and the performing of the labor, though she was not personally liable for the debt.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 as to establish a lien as against the owners.

MEMBERS.

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
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.

III. PROCEEDINGS TO PERFECT.

MEMORANDA.

MERGER.

See Contracts, § 245.

METERS.

§ 122 (N.Y.Sup.) A notice of a lien for materials under Laws 1897, c. 418, which does 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 Estates, 137 N. Y. S. 595.

MINES AND MINERALS.

A notice of a lien for labor and materials un- See Joint Adventures, § 5. der Laws 1897, c. 418, which fails to describe the labor or materials, and which merely states the amount claimed for materials and the amount claimed for labor, is defective.-Id.

See Infants.

§ 124 (N.Y.Sup.) A defect in a notice of lien under Laws 1897, c. 418, arising from the failure to give the agreed price for the materials See Appeal, § 657. or to describe the labor or materials, is not cured by the fact that the owner knew what the

MINORS.

MINUTES.

MISAPPROPRIATION.

work was and what materials were furnished. See Attorney and Client, § 44.
-Fanning v. Belle Terre Estates, 137 N. Y.
S. 595.

VII. ENFORCEMENT.

MISREPRESENTATION.

See False Pretenses; Fraud.
MISTAKE.

$263 (N.Y.Sup.) Notwithstanding Lien Law, 44, under section 43, the owner of the property 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 party, and for preserving right of personal judg

MODIFICATION.

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.,
137 N. Y. S. 470.

§ 277 (N.Y.Sup.) The principal contractor, made a defendant in an action by a subcontractor for foreclosure of his lien, held entitled under its answer to a trial of the issues, involving equities and the determination of rights between all parties, of the work and material of subcontractors having been in accordance with the principal contract, and the refusal to accept the same, and to issue the certificate of the architect being unwarranted, and this though an action by the principal contractor against the owner is pending.-George W. Maltby & Sons Co. v. Charles P. Boland Co., 137 N. Y. S. 470.

§ 280 (N.Y.Sup.) In action to enforce a lien for materials, exclusion of evidence on the part of the claimant as to the purposes for which the materials were used held error.-McNulty Bros. v. Offerman, 137 N. Y. S. 27.

§ 290 (N.Y.Sup.) Findings in a proceeding to enforce a mechanic's lien held inconsistent with a judgment dismissing the claim, so as to en title the claimant to urge such inconsistency as a ground of reversal.-McNulty Bros. v. Offerman, 137 N. Y. S. 27.

MONEY LENT.

§7 (N.Y.Sup.) A plaintiff, suing for money loaned, who introduced in evidence his check, payable to the order of defendant and collected by him, and who testified that the check was given as a loan on funds standing to his credit in the bank, and that the loan had not been repaid, established a prima facie case.-Siebrecht v. Siebrecht, 137 N. Y. S. 1073.

Evidence held not to sustain a verdict for plaintiff.-Id.

A plaintiff, suing to recover for money loaned, has the burden of establishing the loan by a fair preponderance of the evidence.-Id.

MONOPOLIES.

See Injunction, § 136.

II. TRUSTS AND OTHER COMBINA-
TIONS IN RESTRAINT
OF TRADE.

§ 12 (N.Y.Sup.) A combination designed to promote the interest of a particular trade, diminish waste, give better service, extend the business, and secure better prices is not neces

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

sarily violative of the law, and an averment | sume a mortgage.-Newton v. Evers, 137 N. Y. that negotiations between corporations engaged S. 507. in the same business, resulting in a contract transferring the business to one corporation, is a conspiracy, does not justify an inference of unlawful purpose ar act.-New York Motion Picture Co. v. Universal Film Mfg. Co., 137 N. Y. S. 278.

time to sue on the evidence of the debt had not expired.-Id.

$ 561 (N.Y.Sup.) The 20-year statute of limitations, and not laches, will bar suit to enforce a deficiency on mortgage foreclosure against a former owner, who assumed the debt. -Newton v. Evers, 137 N. Y. S. 507.

(L) Disposition of Proceeds and Surplus. § 564 (N.Y.Sup.) A mortgagee having two lots as security will be compelled to satisfy his claim out of the proceeds of one of them, if they are sufficient for that purpose, as against another mortgagee who holds only the other lot as security for his debt.-Hubbard v. Lydecker, 137 N. Y. S. 714.

XI. REDEMPTION.

$594 (N.Y.Sup.) Where a mortgagor averred in his affidavit that payments on the price of the mortgaged premises and interest on deferred payments were paid with his pension money, and the holder of the judgment of foreclosure averred that she desired to hold it as an investment, and the property, if subject to a judgment creditor's lien, was sufficient to satisfy it and the mortgage, the judgment creditor was not entitled to an order directing the holder of the judgment of foreclosure to transfer it to him. Danvers v. Sly, 137 N. Y. S. 302.

MOTIONS.

See Adoption, § 16; Attorney and Client, 190; Costs, § 153; Depositions; Indictment and Information, § 140; Justices of the Peace, $$ 73, 74; Pleading, §§ 350-364.

$42 (N.Y.Sup.) The granting of a second motion made before another justice, after a motion had been previously made and denied and leave for renewal not obtained held improper. -American Hosiery Co. v. Himler, 137 N. Y. S. 702.

$59 (N.Y.Sup.) While there is no sanction for a motion before one judge at Special Term to review or declare void the order of another judge at Special Term, the proper practice being to move for a rehearing or appeal to the Appellate Division, yet, where the judge making the order is dead, such a motion may be considered on the merits. In re Soules Hospital and Training School for Nurses, 137 N. Y. S. 504.

MOTOR VEHICLES.

See Highways.

MOVING PICTURES.

See Indictment and Information, § 63; Injunction, 136; Licenses, § 39; Theaters and

Shows.

under Greater New York Charter (Laws 1897, § 186 (N.Y.Sup.) A police matron, appointed c. 378) §§ 372-381, as added by Laws 1899, c. 674, to receive the salary of doorman under section 299 of the charter, held not entitled to the salary of a patrolman under Laws 1912, c. 449.-Priess v. Waldo, 137 N. Y. S. 815.

$ 205 (N.Y.Sup.) Under the Village Law the board of water commissioners of a village has the power to fix water rates and collect water rents.-Village of Liberty v. Newkirk, 137 N. Y. S. 494.

(C) Agents and Employés.

$217 (N.Y.Sup.) Under Civil Service Law, §§ could not be transferred from the position of 14, 16, 22, an honorably discharged soldier pumping engineer at the water plant of a city to the position of fireman at a new station established by the city, unless he by competitive examination demonstrated his fitness for the new position.-In re Owens, 137 N. Y. S. 308.

IX. PUBLIC IMPROVEMENTS. (A) Power to Make Improvements or Grant Aid Therefor.

§ 280 (N.Y.Sup.) The grade of a street held to have been established, so as to preclude any change, except on petition of the owners of a major part of the abutting property.-Scott v. McClung, 137 N. Y. S. 661.

If the proposed levels of the street which is to be paved will tend to make it generally higher or generally lower than it is at present or has been in the past, the paving will amount to a change in grade.-Id.

§ 288 (N.Y.Sup.) Greater New York Charter (Laws 1901, c. 466) § 1541, held not to apply to an excavation contract at a fixed rate per yard for work, the cost of which was not ascertainable until measurement after completion; such contracts being provided for by section 149.-R. G. Packard Co. v. City of New York, 137 N. Y. S. 9.

(C) Contracts.

$352 (N.Y.Sup.) Contract with a city for the excavation of a bulkhead line construed, and held to necessitate and contemplate compensation to the contractor for work done within 45-degree lines from the junctions between loose rock and ledge rock determined after the blasting work had begun.-R. G. Packard Co. v. City of New York, 137 N. Y. S. 9.

MUNICIPAL CORPORATIONS. See Certiorari; Constitutional Law, § 92; Contempt, § 55; Counties; Courts, §§ 188, 189; Eminent Domain, §§ 2, 85, 101, 174, 237, 238, 240, 245; Estoppel, §§ 93, 96; Injunction, §§ 38, 113; Justices of the Peace, § 81; For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

§ 358 (N.Y.Sup.) The certificate of a city engineer as to the amount of excavation work done under a contract is disputable for mistake