cause whether such advice was sought in
good faith.-Morton v. The Metropolitan
Life Ins. Co., 54.
5. In an action for malicious prosecution
the Court charged the jury that if they
should find that the prosecution of plain-
tiff was authorized by the corporation
and that it had failed, they should then
consider the question of probable cause;
that upon this branch of the case they
were to determine whether the charge of
embezzlement was true; if it was, then
there was an end of the case and the ver-
dict would be for defendant. If true in
part only, then plaintiff was not necessa-
rily to have a verdict; they were then to
consider whether defendant had probable
cause to believe the charge true, and if it
had, then the verdict was to be for de-
fendant. Held, No error.-Id.
6. A complaint for malicious prosecution
need not allege that the accusation was
false or falsely made.—Avery v. Blair,
178.
7. Evidence to show that defendant em-
ployed counsel to try the indictment
against plaintiff is proper.-Id.
8. Where the plaintiff simply shows that
defendant was a witness against him be-
fore the Grand Jury, evidence tending to
show what he testified to before the Grand
Jury is inadmissible.-Id.
9. Where the facts relied upon to make out
a want of probable or reasonable cause
are in dispute, it is the duty of the court
to submit that question to the jury.—Id.
See CORPORATIONS, 1, 2; PLEADING, 1.
1. A mandamus cannot be granted to com-
pel the issuing of a permit to the trustees
of the Brooklyn Bridge to enter upon
certain streets to lay foundations for the
approaches to the bridge where the effect
thereof will be to allow the trustees to
place pillars or columns in such streets.
The People ex rel. Stranahan v. Thomp-
son, 2.
2. Chap. 399, Laws of 1867, probibits the in-
terposition of any obstacle to the free and
uninterrupted use of the streets, and con-
fers no authority which authorizes the
exercise of any discretion in determining
the character of the obstruction.-Id.
3. While the records in the office of a
county clerk or register are public and
every person has a right to examine and
copy them at reasonable times, yet the
clerk or register has the right to decide
as to the manner in which such right
shall be exercised and to say how many
persons may be sent to work at the office
at one time by a title guaranty company,
and a mandamus to compel the clerk or
register to allow the employees of such
company to make searches and copy rec-
ords is not allowable or proper.-The
People ex rel. The German Am. L. & T.
Co. v. Richards, 366.
MARINE COLLISION.
1. Defendant was owner of a steam yacht
licensed to proceed from port to port in
the United States and by sea to any for-
eign ports. The yacht was coming up
the Hudson river at 9 P. M. under steam,
with sails furled, showing, under rule 3
of S 4233, U. S. R. S. at the fore-mast
head a bright white light, on the star-
board side a green light, and on the port
side a red light. She collided with a
steamboat belonging to plaintiff's testator.
In an action by the latter for damages,
Held, That the lights shown were correct
and that the yacht was not required also
to show a central range of two white
lights, specified in rule 7 of said section.
-Chase et al. v. Belden, 99.
MARINE INSURANCE.
1. A clause in a policy of insurance on a
canal boat, providing for a termination
of the risk if the voyage cannot be fin-
ished the same season in consequence of
ice or the closing of navigation, does not
become operative by reason of a tempo-
rary stoppage of the boat by ice and clo-
sing of navigation, which was afterwards
reopened so that the voyage was resumed.
-Delahunt et al. v. The Etna Ins. Co.,
2. The persons named in the policy as the
assured, being in possession of the same,
are the proper parties in interest and en-
titled to maintain the action.-Id.
3. Where an open policy contained a clause
of forfeiture upon assignment and loss
before notice to the company, but the
certificates issued thereunder were made
payable to the assured or order, Held,
That an assignment of the certificate,
without notice, did not come within the
provision.-Id.
1. A statute of the State of New Hampshire
in force in 1862 declared absolutely void
a marriage where either party has a for-
mer wife or husband living, knowing
such wife or husband to be alive. Held,
That the word "former" as used in this
connection means a continuing relation,
and that the husband or wife must be
such when the second marriage is solem-
nized, and accordingly where one divorced
for adultery in Massachusetts went over
into New Hampshire and married that
this marriage not prohibited in New
Hampshire was valid everywhere.-Rob-
erts v. The O. & L. C. RR. Co., 63.
2. A husband cannot allege, as a ground
for annulling his marriage, that his wife
made false representations to him where-
by he was induced to marry her when he
otherwise would not have done so, when,
during cohabitation, he discovered the
falsity of such representation but yet con-
tinued to cohabit with her for two years
after such discovery.-Muller v. Muller,
287.
3. The provision of the statute of frauds re-
quiring contracts which by their terms
are not to be performed within one year
from the making thereof to be in writing
and signed by the parties has no applica-
tion to mutual promises to marry.-Brick
v. Garnar, 545.
See CONTRACT, 13; EVIDENCE, 5, 6.
MASTER AND SERVANT.
1. Intestate was in the employ of defendant
engaged in repairing the track. The con-
struction train on which he was riding
ran off the track at a crossing where mud
had been thrown on the track by passing
wheels and had frozen, filling up the rails,
and was killed One T., who was in
charge of the train, was also general fore-
man of repairs and charged with the duty
of seeing that crossings were properly
cleaned and in safe condition, and this he
had attempted to do. Held, That intestate
in performing these services must be as-
sumed to have understood the condition
of the road and subjected himself to
greater risks than he would have incurred
under ordinary circumstances, and that
T., in the duties he was performing at the
time, was only a fellow-servant for whose
negligence defendant was not liable.-
Brick v. The Roch., N. Y. & Pa. RR. Co,
14.
2. M. was foreman of a pit in defendant's
mine, and as such had power to hire and
discharge men in that pit. A hole in the
pit had been charged with rendrock and
powder and fired, and upon examination
it was supposed that the charge had ex-
ploded. M. ordered plaintiff to drill the
hole deeper, in doing which the charge
exploded and plaintiff was injured. M.
was not shown incompetent, and plain-
tiff was a skilled workman Held, That
plaintiff could not recover; the business
was a dangerous one, and plaintiff took
the risks of the employment; the negli-
gence, if any, of M. was that of a co-
servant.-Turner v. The Chateaugay Ore
Co., 40.
3. As long as the master keeps the places
where the servant is employed, or where
he is likely to go in the course of that em-
ployment, safe, he discharges his whole
duty in that regard. Accordingly, where
an employee, at the instance of another
employee and not in the course of his em-
ployment, went to a part of a vessel where
he had no business or employment and
was there injured by falling down an
open hatchway, Held, that the master
was not liable.-Belford v. The Camden
Shipping Co., 131.
4. A master is not obliged to furnish his
workmen with best known or best con-
ceivable appliances, but those which are
reasonably safe and suitable for the work;
such as the master, as a prudent man,
would furnish if his own life were ex-
posed to the dangers of the work -Burke
v. Witherbee et al., 423.
5. The risk of injury from a defect in dan-
gerous machinery, which defect adds to
the danger and is negligently permitted
by the employer to exist, is not such a
risk as the servant is presumed to have
assumed when he took the employment.
-Shaw v. Sheldon et al., 489.
6. In an action by the employee for wages,
where the master pleads as a set-off that
the employee misconducted himself in
his employment by negligently and care-
lessly doing a specified thing, thereby ex-
posing the master to liability, such de-
fense cannot be sustained where it ap-
pears that an action is pending against
the master for his employee's said act in
which he has denied his liability there-
for, and which action is not yet decided.
-Merlett v. The North & East River
SS. Co., 495.
7. The inspection of the roof of a chamber
in an iron mine in which men are at work
is the duty of the master, and he must
employ persons for such inspection who
are faithful and competent. And where
a portion of the roof fell and killed an
employee, although defendants regarded
the inspection made sufficient, it is still
a question for the jury whether it was so.
-McCall v. Witherbee et al., 530.
See NEGLIGENCE, 10, 21.
MECHANICS' LIENS.
1. A statement in a notice of lien that "60
days have not elapsed since the work was
performed and materials furnished" is a
sufficient compliance with the require-
ment of the Onondaga act that it shall
state the date from which the lien is
claimed to have commenced, and espe-
cially so as against the owner, the con-
tractor or his general assignee.-Ryan v.
Klock et al., 406.
See COMMON CARRIERS, 5: MORTGAGE, 10.
1 One B., who was owing plaintiff and de-
fendants, delivered to the former goods
under an agreement that the avails should
be applied to plaintiff's claim and after-
wards to defendants', and plaintiff paid
to defendants the balance due them under
the agreement. Thereafter one C.
claimed and took away a portion of the
goods. Held. That plaintiff could not re-
cover from defendants for the portion
so taken away without showing that it
belonged to C. and that the title acquired
from B. had failed.-Snell v. Newell et al,
218.
1. A party claiming the benefit of the po-
sition of a purchaser in good faith and for
a valuable consideration is bound to allege
and prove that fact -Seymour v. McKin-
stry et al., 77.
2. Plaintiff sold certain premises to one S.
under agreement by which he was to be
paid the proceeds of a $5,000 mortgage to
be given on the premises, and a second
mortgage of $3,000 should be given to his
wife. McK, with knowledge of this ar-
rangement, took a $5,000) mortgage, as-
signed it and paid part of the proceeds to
S retaining the balance to apply to
claims against S Plaintiff refused to re-
ceive the check for the part offered, de-
manded the whole $5,000 of McK., which
was refused, and afterward plaintiff drew
the money on the check. In an action to
declare the balance a prior lien on the
premises, Held, That plaintiff was not
estopped; that neither the receipt of the
check by plaintiff, under the circum-
stances, nor the receipt of the second
mortgage by his wife was a ratification
of the transaction -Id.
3. When a mortgage describes the property
mortgaged as being situated easterly of a
certain point when in fact it is situated
westerly of said point, but also contains
a further description of said property by
a certain lot number on a map filed in the
Register's office by which said property is
accurately located, a purchaser at the sale
on the foreclosure of the said mortgage
acquires title to the property.-Wagner
v. Hodge et al., 125.
4. When a mortgagor has, subsequent to
the execution of the mortgage, made an
assignment for the benefit of his credit-
ors, and his assignee, who has no other
interest in the property than that derived
under the assignment, is made a party to
an action to foreclose the mortgage, in-
dividually and not as assignee, the judg-
ment in such action will have the effect
of cutting off his interest as assignee.-
-Id.
5. An assignee in bankruptcy of a mortga-
gor appointed under the late bankrupt
laws subsequent to the commencement
of an action for the foreclosure of the
mortgage and the filing of a notice of the
pendency of such action is a subsequent
purchaser or incumbrancer and is not a
necessary party to the action — Id.
6. The complaint alleged that plaintiff al-
lowed defendant P. to take notes belong-
to her, to be secured by a mortgage given
to him by the other defendants; that P.
delivered them to the other defendants,
who destroyed them, and asked to be ad-
judged owner of the mortgage to the
extent of the notes. The referee al-
lowed the complaint to be amended by
striking out the allegation as to the de-
struction of the notes, they being pro-
duced. Held, No error; that the amend-
ment did not affect the issue or bring in
a new cause of action.-Price v. Price et
al., 194.
7. One of these notes was payable to plain-
tiff, and admissions of P. were shown to
the effect that he received it from plaint-
iff to give to the other defendants.
Held, That the legal and equitable title
was shown to be in plaintiff, and that the
mortgage was impressed with a trust in
favor of plaintiff for the amount due her.
-Id.
8. An objection that the property sold on
foreclosure was not sufficiently described
in the mortgage is not tenable when it
appears that the premises could be defi-
nitely located by any competent person
going upon the ground with the descrip-
tion.-Abbott v Curran et al., 231.
9. The summons was addressed to the heirs
at law, etc., and their wives or husbands,
it any. Held, That the words "if any" as
used would not invalidate a summons
otherwise perfect.—Id.
10. The mortgagor conveyed the premises
to the mortgagee, the deed expressly de-
claring that it should not operate to merge
the mortgage, but only to grant the equity
of redemption. Held, That the intention
that the deed should not operate as a
merger should have effect.-Id.
11. A referee to sell was appointed by con-
sent of all the parties who had appeared,
who were all the parties but one, who was
an absentee. Held, That if this was an
error under Chap. 439, Laws of 1876, it did
not render the appointment illegal or the
sale void. Id.
12. Letters of administration are conclusive
evidence of the administrator's authority
until revoked —Id.
13. A recital in a deed that it was made
"for commercial purposes only" imposes
no restriction on the absolute title.-Id.
14. A mortgage conditioned for the pay-
ment of an annuity to the mortgagee
during his lifetime, and also for the pay-
ment to him or the general guardian of
the children of the mortgagor, for their
benefit, a specified sum annually during
their minority, creates a trust in favor of
the children and constitutes the mort-
gagee a trustee of the mortgagor's chil-
dren to the extent of their beneficial inter-
est-McPherson v. Rollins et al., 254.
15. And when no power of revocation is re-
served to the creator of the trust or con-
ferred upon any other person, the mort-
gagee cannot, even with the consent of
the mortgagor, give a valid discharge or
certificate of satisfaction of the mort-
gage; and especially so in the absence
of a consideration.-Id.
16. The record of such a mortgage is con-
structive notice of its provisions sufficient
to put a purchaser upon inquiry, and of
the want of power of such mortgagee to
discharge the mortgage.—Id.
17. When an injunction pending foreclosure
of a mortgage forbidding the mortgagor
to collect the rents but allowing his
agents to do so and retain them subject
to the order of the court is vacated, the
parties stand in the same position as
though no injunction had been granted
and the rents collected by the agents be-
long to the mortgagor.-Wyckoff v. Sco-
field et al., 262.
18. The court has no power to order rents
already collected and in possession of the
mortgagor to be paid over and applied on
the mortgage debt.-Id.
19. In an action of interpleader it appeared
that plaintiff executed a mortgage to L.
C., who was executrix of Z. C. L. C.
having died, B. and S. were appointed
administrators in her place and have pos-
session of the mortgage, and claim that
the consideration was derived from assets
of the estate of Z. C. The mortgage was
to L. C. individually. Held, That only
the representative of L. C. could enforce
the mortgage, and that the question
whether she was guilty of a devastavit
could not be determined in this action.
The admission or denial of parts of the
complaint "at" or between" certain
folios does not conform to the spirit of
22 of the Code.-Calkins v. Bolton et
al., 333.
20. Under the facts appearing in the opin-
ion, Held, That defendant is mortgagee
in possession, and his rights are unaf-
fected by foreclosure of subsequent mort-
gage.-Wing v. Field, 351.
21. A. gave a bond to his father, conditioned
to pay him interest on a certain sum for
his life, and then to his widow for her
life, and at her death to pay the principal
to the father's executor. The father hav-
ing died, the obligor gave a mortgage to
secure performance of the bond, and the
obligee's wife died when a part of the in-
terest due her was unpaid. Held, That
the widow's administrator had a right to
look to the mortgage for the unpaid in-
terest, and the obligee's executor having
declined to enforce the security, the ad-
ministrator had a right to bring suit on
the mortgage and join the executor as de-
fendant. So far as the executor had paid
the liens upon the mortgaged premises
which it was the mortgagor's duty to pay,
he was entitled to repayment out of the
proceeds of the mortgage sale; but he
was not entitled to such reimbursement
for taxes paid on the whole premises,
whereas the mortgage covered only an
undivided half thereof.-Weed v. Hornby
et al., 355.
22. A mortgage for $2,500 being in process
of foreclosure, defendant applied to plain-
tiff's testator for a loan to pay it off. Tes-
tator paid the amount of the mortgage
and costs and a sum to defendant, mak-
ing $3,000 in all, and took a mortgage for
that amount and also an assignment of
the prior mortgage. On foreclosure of
the $3,000 mortgage it was declared void
for usury. On foreclosure of the prior
mortgage, Held, That the court was justi-
fied in holding that the assignment was
valid; that no payment of said mortgage
is shown and that no usury having been
pleaded it was not available as a defense.
-Allison et al. v. Schmitz, 365.
23. A mortgage upon a leasehold estate
which, by its terms, covers
"the edifices,
buildings. rights, members, privileges,
and appurtenances thereunto belonging
or in any wise appertaining; and also all
the estate, right, title, interest, term of
years yet to come and unexpired, prop-
erty, possession, claim and demand what-
soever, as well in law as in equity of the
mortgagor, of, in, and to the demised
premises and every part and parcel there-
of with the appurtenances; and also the
indenture of lease and every clause, arti-
cle and condition therein expressed and
contained," is a lien upon a right reserved
in the lease to a renewal of the term for a
further period of time, or, in default
thereof, to payment from the owners of
the property of the value of the buildings
standing upon the property at the time of
the expiration of the lease; and a suit to
foreclose it can, therefore, be maintained
after the expiration of the lease; and such
effect is not defeated by a subsequent
clause declaring that the mortgagee
should have and hold the indenture of
lease and the other premises granted, for
and during all the rest, residue, and re
mainder of the term of years then to come
and unexpired.-Moller et al. v. Duryee
et al., 458.
24. Payments upon the mortgage debt made
by the executor of the deceased mort-
gagor after the assignment of the mort-
gaged lease will keep the debt alive and
authorize a foreclosure of the mortgage
as against such assignee after the time
when the debt would have been barred
by the statute of limitations if it had not
been for such payments.-Id.
25. A purchaser of a leasehold interest in
real property at a foreclosure sale thereof
is entitled to have allowed him as cash
upon such purchase the amount due for
taxes, etc., upon such property when, by
the terms of the lease purchased, such
taxes were to be paid by the tenant.-
Moller et al v. Duryee et al., 459.
26. The probability that an obligation upon
the tenant to pay the taxes, etc., upon the
property leased would accompany a lease
for twenty-eight years is so strong as to
require only formal evidence to sustain it
as a fact in support of a motion based
upon it.-Id.
27. Although the lease itself was not pro-
duced in the court below upon the argu-
ment of a motion based upon it, but its
terms were proved by affidavit merely,
still the court at General Term may re-
ceive and act upon the lease.—Id.
28. It is not waste for a tenant of nursery
grounds, entering subsequent to a mort-
gage, to remove and sell in good faith
and in the usual course of business grow-
ing nursery stock, if done before fore-
closure is begun and not in apprehension
of foreclosure and for the purpose of in-
juring the freehold and security.-Ham-
ilton v. Austin et al., 500.
29. Neither the receiver appointed in fore-
foreclosure, nor the mortgagee in a sub-
sequent action at law, can recover such
stock or its value.-Id.
30. A mortgage not accompanied by a bond,
and which contains no covenant of pay-
ment is not usurious, even if it appear
that it was drawn for a greater sum than
the mortgagee intended to advance under
it. Under such a mortgage the recovery
will be limited to the advances proven.-
The First Nat'l B'k of Whitehall v. Gris-
wold et al., 516.
31. Nor does it establish or affect the ques-
tion of usury that the complaint claims
for the whole sum secured by the mort-
gage.-Id.
32. Where, upon partition. the widow,
whose dower had not been admeasured.
released her dower and received therefor
a bond and mortgage on a portion of the
lands in suit in ignorance of a prior judg-
ment against one of the mortgagors, Held,
That her equities were the same as if she
had conveyed lands and taken back a pur-
chase-money mortgage, and that the
mortgage was prior in lien to that of the
judgment.-Pope v. Mead, 540.
33. Plaintiff's assignor held a mortgage on
village lots 13, 14, 15 and 16. Defendant
D. held three prior mortgages, the first
two on lots 13, 14 and 15 and the third on
lots 13, 14, 15 and 16. D. agreed with A.
S., the owner of the equity of redemp.
tion, that she would foreclose the second
of her mortgages and bid on the sale the
amount due on all her mortgages, and A
S. agreed that she would pay the costs of
foreclosure and redeem lots 13, 14 and 15
within a certain time. D. carried out her
agreement and A. S. paid the costs, but
failed to redeem. Plaintiff's assignor was
a party to the foreclosure. Held, That by
this arrangement the mortgage of plain-
tiff's assignor became a first lien on lot 16.
-Griswold v. Davey et al., 556.
34. By the payment of the costs by A. S.
there was a small surplus on the sale re-
sulting from D.'s bid. Held, That plain-
tiff was entitled to the benefit of this sur-
plus.-Id.
See AGENCY, 4; BANKS, 13; COUNTY TREAS-
URER; DEEDS, 11, 12; DURESS, 1, 4; FRAUD,
3, 4; PLEADING, 16; RECEIVERS. 3, 5, 6.
MUNICIPAL CORPORATIONS.
1. A power to regulate the ringing of bells
and the crying of goods or other com-
modities for sale at auction, or other-
wise, relates solely to the manner of ad-
vertising a sale by public outcry, and au-
thorizes the Common Council to regulate
that custom or manner of advertising,
but confers no authority to regulate or
prohibit a sale of goods at auction within
the store or building of the seller. There-
fore, an ordinance prohibiting the sale of
jewelers' goods at auction after sunset,
under a penalty, is unauthorized and .
void. The City of Rochester v. Close, 109.
2. While negligence cannot be assigned
against a municipal corporation for the
design or plan of an improvement, yet
where it has constructed a street upon a
high embankment without guards to pro-
tect its sides it is liable for injuries occa-
sioned by the want of such protection
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