· Eminent domain — precision required in the description of the property
rights sought to be taken — allegation as to inability to agree with the owners as
to the price to be paid.
See METROPOLITAN RY. Co. v. DOMINICK..
Divorce-power of the court in reviewing the referee's report — right to
order a new trial at circuit.
See RYERSON v. RYERSON...
Administratrix of a deceased general guardian-may be called upon,
immediately on her appointment to account for the infant's estate-
Civil Procedure, § 2606.
Mortgage foreclosure — guardian ad litem for infant defendant appointed
nisi, without his consent thereto being acknowledged.
Attachment affidavits used in other applications may be used — amend-
ment of the writ of attachment by inserting a reference therein to such affidavits.
See HALLOCK v. VAN ČAMP..
Certiorari -returnable at the clerk's office instead of at Special Term —
what is a waiver of the objection.
See PEOPLE EX REL PADDOCK v. LEWIS..
A personal judgment is recoverable by the trustees of a Union Free School
District against a party assessed for a school tax objection on appeal not raised
on trial.
The finding of fraud merely as a conclusion of law (in the absence of a
finding of fact to that effect) will not sustain a judgment.
one hour after the time specified in the summons.
presumption, on appeal, as to his having waited
PRESUMPTION - Justice of the peace-presumption, on appeal, as to his
having waited one hour after the time specified in the summons.
As to injury arising to a proper party from not being brought into the
action-amendment nunc pro tunc
-subsequent promise to pay interest thereon, enforceable — deposit made
by an agent is recoverable by his principal.
See READ v. BANK OF ATTICA..
Bill of particulars, of the exact terms of an affirmative agreement as to
the compensation on a sale of real estate set up in the answer as having been sub-
stituted for the one sued upon.
Usury-exacted by an agent
knowledge thereof or assent thereto by the
principal must be shown to render the obligation void.
PRINCIPAL AND SURETY - Collector's bond-nature of the statutory
lien on lands of the collector and his sureties created thereby right of redemp
tion under a foreclosure of such lien — one surety converting the money primarily
liable
See CRISFIELD v. MURDOCK.......
PRIORITY—Among lienors
See LIEN.
Between mortgages.
See MORTGAGE,
PROCESS-Service of a summons by publication—death of the plaintiff pend
ing the publication, effect thereof.] In an action, brought for the foreclosure
of a mortgage, publication of the summons was commenced pursuant to the
order of the court, and when about half the time prescribed for such publi-
cation had expired the plaintiff in the action died. The publication was con-
tinued without regard to the plaintiff's death, and the action was subse-
quently revived in the name of his executrix, and the suit was prosecuted
to judgment and sale.
Held, that by the death of the plaintiff the publication of the summons
became ineffective, and its continuance after such death did not constitute a
sufficient service in the foreclosure action on the defendant, whom it was thus
sought to serve, and the court acquired no jurisdiction, as against such-
defendant, to enter judgment of foreclosure. REILLY . HART.
Attachment-levy upon a debt evidenced by negotiable bonds, how made -
service by publication on non-resident.
See VON HESSE v. MACKAYE
PROPRIETOR-Defined-insurance against accident — of an ice proprie-
tor-when a party delivering ice in person is covered thereby.
See NEAFIE v. MAN'FRS ACCIDENT INDEMNITY CO..
PUBLICATION - Service of process by
Trade-mark-in a figure, some of the peculiarities of which are used
in each of the frontispieces of each of a series of publications.
PUBLIC OFFICERS:
See OFFICERS.
See MUNICIPAL CORPORATIONS.
Sleuth" by a publisher - what a sufficient
adoption thereof — what constitutes an infringement thereof.
PUNISHMENT - By death by electricity — not a cruel and unusual punish-
ment under the Constitution of the State of New York-the application of the
English Bill of Rights and of the provisions of the United States Constitution to
the legislative department - considered.
See PEOPLE EX REL. KEMMLER 0. DURSTON..
PURCHASE - Of personal property.
See SALES.
Of real property.
See VENDOR AND PURCHASER.
QUANTUM MERUIT- Recovery on, for services
RAILROADS - Repaving of Genesee street in Utica - obligation of the horse
railroad to pay therefor—1870, chap. 28.] 1. The common council of the city
of Utica, on October 24, 1862, gave permission to the Utica City Railroad
Company to construct a horse railroad, with a double or single track, along or
near the center of Genesee street, in that city, upon condition that the railroad
would replace and keep in good repair the pavement between and at least
two feet in width on each outer side of the tracks. In December, 1886,
the Utica City Railroad was leased to the Utica Belt Line Street Railroad Com-
pany, and the lessee undertook to pay, bear and discharge all taxes and-
assessments, ordinary and extraordinary, of every description, lawfully
assessed, imposed, levied and accruing upon the said street surface railroads,
etc.; to do any and all paving required by law, on the streets upon which
the said street surface railroads thereby leased were or might be operated, as
might be legally imposed during such lease.
By chapter 28 of the Laws of 1870 it was provided that "the common
council is hereby authorized to require all railroad companies operating street
railroads in any of the streets of the city to repave between their tracks, and
at least two feet in width on each side thereof, whenever the common council
shall deem such repavement necessary."
Subsequently, and in March, 1888, the common council determined to
repave Genesee street and entered into a contract for the work, and thereafter the
expense thereof was by the city authorities assessed one-third thereof upon
the city at large and two-thirds thereof upon the adjacent property.
In an action, brought by a taxpayer and an owner, so assessed upon property
upon Genesee street, to have said assessment declared void:
Held, that when the common council determined that the repavement was
necessary it became the imperative duty of the street railway to repave
between its tracks, and at least two feet in width on each side thereof.
That the provision of the statute was mandatory, and that it was the duty
of the common council to enforce compliance therewith on the part of the street
railway.
That a taxpayer at large had a right to have that provision of the law
enforced, and as an adjacent owner he was also entitled to have the common
council exact a performance thereof from the street railway.
That the provision in chapter 426 of 1887, that "the common council shall
then determine the expense of the whole work," applied only to the work
on that part of the street not occupied by the railroad company.
GILMORE v. CITY OF UTICA...
2. Train dispatcher-negligence of, causing injury to a co-employee·
company not liable.] In an action, brought to recover damages for an injury sus-
tained by reason of a collision between two freight trains on the defendant's
railroad, it appeared that the plaintiff was a fireman in the employment of the
defendant upon one of the trains. The company had established a system of
rules for the guidance of its servants in the performance of their duties, and
the collision resulted from the neglect, on the part of a train dispatcher in
the defendant's employment, to observe such rules.
Held, that the train dispatcher was not, by virtue of his employment as such,
and without regard to the extent of the discretion committed to him, and irre-
spective of the rules prescribed for his government, in such a position that his
negligence was the negligence of his employer, nor was he divested of the
character of a fellow servant of the plaintiff.
HANKINS . N. Y. L. E. AND W. R. R. Co..............
3. Its duty as to making rules, etc.] Where the master has exercised due
care in the selection of the servants employed, and has prescribed adequate,
specific and intelligible rules for their instruction and government, with a
degree of care proportionate to the difficulty and importance of the duties
which the servants in question are called upon to perform, the duty of the
master to its servants is performed. Id.
4. Injury to a cow escaping on to a railroad track — a fence originally four
feet in height, broken down to two feet eight inches, evidence of negligence on
the part of the railroad company.] In an action brought to recover the value
of a cow which was killed on the defendant's railroad, it appeared that the
plaintiff's premises, upon which the cow was kept, were separated from the
railroad property by a fence which had been constructed by the company,
and which was originally four feet and upwards in height; that it had been
allowed to remain broken down, in places to the height of two feet and
eight inches, to the knowledge of the agents of the railroad company, and
that through this fence the plaintiff's cow had escaped on to the railroad
lands where it had been killed by a passing engine.
Held, that the fact that the fence had been permitted to be broken down to
a little more than one-half of its original height was evidence tending to show
that the fence was insufficient, and that the case was not one which required the
evidence of expert witnesses to justify the jury in finding that this barrier of
two feet and eight inches was not sufficient in height to turn away peaceful
cattle. LEYDEN v. N. Y. C. AND H. R. R. R. Co..
Police powers-right of the legislature to prescribe the method of heating
-the acts relating thereto cover railroads of fifty miles, although having less
than that number in this State.
Sce PEOPLE v. N. Y., N. H. AND H. R. R. Co.....
Eminent domain-precision required in the description of the property
rights sought to be taken ― allegation as to inability to agree with the owners as to
the price to be paid.
See METROPOLITAN RY. Co. v. DOMINICK..
business may be shown—costs.
Eminent domain-the special suitableness of property to a particular
See MATTER OF UNION ELEVATED R. R. Co.....
Eminent domain — easements in a street sought to be acquired after the
completion of an elevated railroad — measure of damages.
See KENKELE v. MANHATTAN RY. Co.....
Measure of damages in proceedings to condemn rights, in a street, of
abutting owners who do not own the fee of the street.
See MATTER OF BROOKLYN ELEVATED R. R. Co......
Negligence-driver of a street railroad car - injury done to a workman
in an excavation adjoining the tracks.
See SCHMIDT v. STEINWAY AND H. P. R. R. Co.....
Defective brake-rod on a railroad
-the opinion of a witness in respect to
what would put it out of order is improper.
See BAILEY . R., W. AND O. R. R. Co.................
REAL PROPERTY-Annuities charged upon an estate-
does not prevent a sale, free therefrom, of the real estate.
Devise of a farm, subject to a provision for the support of the testator's
widow out of the proceeds and avails thereof, gives the widow a lien upon the crops.
See WALKER v. DOWNER.
Conveyance to husband and wife as joint-tenants" prevents their taking
as tenants by the entirety.
REAL PROPERTY - Continued.
Proof required to show that a deed was not intended as a mortgage·
replevin in the cepit — not maintainable against one in possession of the land.
See SHATTUCK v. BASCOM......
Bill of particulars—of the exact terms of an affirmative agreement as
to the compensation on a sale of real estate set up in the answer as having been
substituted for the one sued upon.
Collector's bond-nature of the statutory lien on lands of the collector
and his sureties created thereby — right of redemption under a foreclosure of such
lien — one surety converting the money is primarily liable.
See CRISFIELD v. MURDOCK..
Mortgage given upon exempt homestead property — how far ineffectual
under section 14 of the Code of Civil Procedure.
See PECK v. ORMSBY..
Landlord and tenant — injury occasioned by a defective hoisting appa
ratus attached to the building by a former tenant - liability of the landlord.
See HUNGERFORD v. BENT.....
Agreement to work land on shares, and occupation thereunder for two
years, does not create a tenancy — remedy of a party wrongfully dispossessed.
See UNGLISH v. MARVIN ..
Injury to a tenant from defects in a roof used for drying clothes-
liability of the landlord.
See ALPERIN v. EARLE......
Eminent domain — precision required in the description of the property
rights sought to be taken ― allegation as to inability to agree with the owners as
to the price to be paid.
See METROPOLITAN RY. Co. v. DOMINICK
Unrecorded mortgage-notice thereof arising from an occupation of a
part of the mortgaged premises by the mortgagee.
See BASSETT v. WOOD
Fixtures as between landlord and tenant.
RECEIVER — Titie to negotiable paper sent to a bank for collection — right
of its owner to recover the proceeds of the note from a receiver of the bank collect
ing it.
Collector's bond - nature of the statutory lien on lands of
the collector and his sureties created thereby right of redemption under a fore-
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