11. By resolution of the electors of Gravesend in 1871, it was provided that the common lands should be let only at public auction on notice, and that no lot should be let at a time more than one year prior to the ex- piration of any existing lease thereof, nor more than ten years. By resolution in 1878 this was amended by adding that the Land Commissioners are authorized to renew any existing lease upon terms which they deem most advantageous to the town. Plaintiffs held leases which expired in 1882 and 1883. The Commissioners renewed them in 1880 and 1879 respectively. Held, That the limitation in the resolution of 1871 was not nullified by the resolution of 1878, and that the renewals were invalid.--Til- you v. The Town of Gravesend, 529.
See CORPORATION, 13; FRAUD, 2; NEGLI- GENCE, 20; RAILROADS, 1.
1. In an action upon a policy of life insurance which by its terms declares that the death of the insured by suicide is not a risk as- sumed by the insurance company, when, upon the cross-examination of one of the plaintiffs' witnesses, the proofs of death furnished to the company are introduced in evidence by it, and such proofs show that the insured was held to have committed suicide, at a coroner's inquest held upon his body, a prima facie defence is established, and the complaint will be dismissed, unless the plaintiff shows that death resulted from some other cause.-Goldschmidt et al. v. The Mutual Life Ins. Co., 95.
2. The acceptance by an insurance company of an application for insurance does not
complete the contract so as to bind the ap- plicant until he has an opportunity to exam- ine the policy and has assented to its terms. -King v. The U. S. Life Ins. Co., 203.
3. In an action to procure the restoration of policies and an accounting on the ground of fraud of defendants' officers in procuring plaintiffs to exchange said policies for new ones containing more onerous conditions, the Court found as facts that there was no fraud or misrepresentation, and that plain- tiffs secured advantages by the new policies at least equal to those surrendered by them, and had suffered no damage. Held, That in the absence of valid exceptions to rulings there was no question to review.-Hencken et al. v. The U. S. Life Ins. Co. et al.,412. 4. In view of the impossibility of placing a precise pecuniary value on the various pro- visions of the policies, and the wide differ- ence existing among experts in relation thereto, the question whether a policy holder will be damnified by an exchange is pecu- liarly a question for the parties interested to determine for themselves.-Id.
5. When the person insured by a policy of life insurance in an insolvent company dies during the process of the winding up of the affairs of said company, and within a very short time after the filing of such policy with the receiver for valuation, and before the actuary engaged in calculating the val- uations of the policies issued by said com- pany has made his report, and proofs of such death are furnished to the receiver before the making of said report, the policy should be valued as a death claim against the assets of the company and not as an existing and continuing insurance.- The People v. The Knickerbocker Life Ins. Co., 481.
6. Upon an application for a re-valuation of a policy it is in the discretion of the Court to make such order as may seem just and equitable.-Id.
1. In an action for money loaned, the Court found that the cause of action, if any, ac- crued more than seven years before action brought, and declined to find on plaintiff's request that it was a case of mutual accounts or reciprocal demands. Held, That the finding disposed of the case and that the action was barred by the statute of limita- tions.-Havemeyer et al. v. Quintard et al.,
2. When an action upon a contract is com- menced within the time limited therefor by the statute of limitations, a counterclaim arising out of the contract set forth in the complaint as the foundation of the plain- tiff's claim is not barred by the statute of limitations although the pleading contain- ing it is not served until after the expiration
of the time limited by said statute for the commencement of an independent action upon such counterclaim.-Herbert et al. v. Dey, 220.
3. A. died February 6, 1876, and in the same month B. was appointed administrator, but did nothing as such except draw from bank some money of A.'s. B. died May 18, 1880, having in his will nominated C. as his ex- ecutrix. Petitioner was, on September 22, 1880, appointed administrator de bonis non of A., and on December 14, 1881, filed with the Surrogate his petition, under § 2606, Code Civ. Pro., praying for judicial set- tlement of the account of B. as adminis- trator, and that C. as executrix show cause why she should not render such account, and deliver to petitioner any of such prop- erty which had come to her hands or was under her control. Held, That the petition is not barred by the statute of limitations. -In re petition of Clark v. Latz, 235.
4. The word "return in section 401, Code Civ. Pro., containing exceptions to the limitation of actions, applies as well to a person coming from abroad, where he has resided, as to a citizen going abroad for a time and then returning. But the return, in order to set the statute running, must be so public and under such circumstances as to give the creditors an opportunity, by the use of ordinary diligence and due means, to prosecute the debtor.-Engel v. Fischer, 341.
5. In May, 1867, the wife of testator conveyed to S. property which was her separate estate, and in the transaction a part of the purchase price was paid the testator for the use and benefit of the wife. She did not demand the money in his lifetime. He died in May, 1874. Upon the accounting of the wife as executrix, Held, That the claim was barred by the statute of limita- tions. In re estate of Cole, 534.
6. A judgment was recovered in justice's court in 1873, and in 1880 was docketed in a county clerk's office. In 1884 a motion was made for leave to prosecute it in this court. Held, That the six years' limitation fixed by § 382, subdiv. 7, of the Code of Civ. Pro. applied, and that the action was barred.-Slocum v. Stoddard, 556.
See BANKS, 6, 7; FIRE INSURANCE, 13; FRAUD, 5, 21; GUARDIANS, 5; SURETYSHIP, 5.
MANDAMUS.
See APPEAL, 14; TAXES. 7. MARINE COLLISION. See EVIDENCE, 11. MARINE INSURANCE.
1. In every case of marine insurance there is an implied warranty of seaworthiness, and
if the vessel is not seaworthy the policy does not attach.-Van Wickle et al v. The Mechanics & Traders' Ins. Co., 143.
2. If it appears that the vessel shortly before sailing became leaky, unfit to perform the voyage, or sank without encountering any peril or storm, this is presumptive evidence of unseaworthiness.-Id.
3. A policy of marine insurance provided that its general language should be con- trolled by the indorsement of special risks; that the perils insured against were those of the seas and all other perils, &c., to said goods or any part thereof; that perishable articles or those damaged before shipment should be warranted free from average un- less general. Plaintiff was insured by in- dorsement on 1,650 bbls. of potatoes on canal boat, F. P. A. After 109 bbls. were delivered the boat sunk and the greater part of the cargo lost. Held, That it was the intention of the parties to exempt the in- surer from payment of any loss occurring to a portion only of the cargo, and that de- fendant's liability was terminated by the delivery of a material part of the cargo.- Chadsey v. Guion, 361.
1. A promise of marriage made on condition of illicit cohabitation is without considera- tion and void.-Lewis v. Goetschius, 140. 2. When a man and woman marry and the man has a wife living at that time, but that fact is not known to the woman, who in- tends to contract a valid relation, and it subsequently becomes known to her and she still continues to live with the man, and the former wife subsequently dies and information of her death is received by them, and they thereafter live together as man and wife, holding themselves out to the world as such, a new and legal marital relation will be presumed to have arisen, dating from the death of the former wife. -The Polar Star Mut. Ben. Ass'n. v. Boni- face et al., 522.
MARRIED WOMEN.
1. Plaintiff, a married woman, not carrying on a separate business, was injured. By the same accident her husband was injured, and he has an action pending therefor. The Court, after stating the ground upon which damages could be given plaintiff in this action, said, "for her discomfort in the past and for her discomfort in the future and for her inability to labor you may also compensate." Held, Error; because under this language damages might have been given the wife by the jury for loss of ser- vices, which latter were the property of the husband.-Houghkirk v. The D. & H. C. Co., 558.
1. If ordinary ingenuity has been exercised to the utmost to provide machinery and means for the endurance of the enormous strain imposed upon it by railroad use, and when the best practicable inventions are utilized and the best human foresight exer- cised, the master is not liable even though injuries are sustained by the servant. Dudley v. The N. Y., L. E. & W. RR. Co., 118.
2. The rule requiring masters to exercise due diligence to furnish safe and suitable ap- pliances, and keep them in a proper state of repair, applies to the premises where the employee is required to perform services as well as to the machinery.-Williams v. The Syracuse Iron Works, 188.
See NEGLIGENCE, 7, 30.
1. Lessees of premises mortgaged their inter- est to appellants. The labor upon which the lien is claimed was performed at the mortgagors' request while they were in possession of the premises, before any de- fault under the mortgage, and without ap- pellants' knowledge. Appellants purchased the mortgagors' interest in the premises be- fore notice of lien was filed, and had no knowledge of the claim until after such notice was filed. Held, That appellants' interest is not subject to the lien.-Broman v. Young et al., impld., 517.
2. The Mechanics' Lien law of 1875, applica- ble solely to the city of New York, was not repealed, either expressly or by implica- tion, by the general law of 1880 on the same subject, and both of said statutes stand together and are applicable to the city of New York, and proceedings in said city may be taken under either of them, and, if such proceedings conform to either of said statutes as to the filing of the lien, the lien is valid.-Cockerill v. Loonan, 545.
1. On a re-sale on foreclosure the premises were sold subject to the rights of children who were not made parties to a former par- tition suit. There was nothing in the decree or the notice of sale referring to such a restriction. Held. That as the purchaser bought with notice, paying a less amount on account thereof, he should be required to complete his purchase and that no amend- ment of the decree was necessary.-Crom- well v. Hull et al., 53.
2. The N. Y. City and Northern RR. Co. mortgaged its road, franchises, etc., to the
Central Trust Co., of N. Y. to secure the payment of the principal of its bonds and the interest upon them due semi-annually. The railroad company was entitled by the terms of the mortgage to remain in posses- sion of the mortgaged property until some default should be made in the payment of the principal or interest on its bonds, or some part thereof; and, by a separate pro- viso, the trustee was given the right to enter upon and operate the road and apply the proceeds to the payment of the principal and interest of the bonds or to exercise a power of sale with respect to the entire property covered by the mortgage in case of a default in payment of principal or of interest continuing for twelve months; and it was also provided after a twelvemonths' default in the payment of interest the prin cipal should fall due. The company defaulted in the payment of a semi-annual instalment of interest, and after the expira- tion of about three months the trustee brought an action to foreclose the mort- gage, asking for a sale of the whole prop- erty, and for the payment of the principal of the debt. Upon demurrer, Held, That such an action could be maintained.-The Central Trust Company v. The New York City & Northern RR. Co., 96.
3. B. owned a mortgage on certain real estate which he assigned to R., guaranteeing its payment. R. subsequently foreclosed the mortgage and the property was purchased at the foreclosure sale for a sum greater than the mortgage debt. The purchaser, however, refused to complete his purchase, and upon an application to compel him to do so, he was so ordered, or in default it was ordered that the property be re-sold and the purchaser charged with the deficiency arising under such re-sale. Under this order R. re-sold the property and a large deficiency arose upon such sale, from the payment of which the original purchaser was relieved on account of irregularities in the second sale. Held, That B. was not liable for such deficiency.-Riggs et al. v. Boucicault et al., 184.
4. A. and B., brothers, owned certain prem- ises subject to the dower of C., their mother; D. bought the premises, giving a mortgage back in which A. was named as second party. The mortgage provided for pay- ment of interest to the mother, and on her death a portion of the principal to A. and the rest to be distributed to B.'s children as they respectively came of age. Ulti- mately the principal was paid to Ă. and he discharged the mortgage. Held, That pay- ment to A. of the money belonging to B.'s children was unlawful, and A.'s discharge of the mortgage was inoperative. - Water- man et al v. Webster et al., 231.
5. Plaintiff executed a release of one of two parcels of land covered by a mortgage which he held, and sent the same to a third
party to deliver to the mortgagor, provided his said mortgage was a first lien on the remaining parcel. The mortgagor knew of the condition. By mistake of the facts the agent delivered the release, and the mort- gage proved not to be first lien, as pro- vided. Held, That the delivery did not bind plaintiff as against the mortgagor.- Rose v. Rose, 334.
6. A stockholder is not a necessary party to an action for the foreclosure of a mortgage against the property of the corporation ; and if he is included in the class of persons who are to be made parties under § 452 of the Code, he must show a defence.-Smith et al. v. The Smith Moquette Loom Co., 342.
7. An objection that the property sold on fore- closure was not sufficiently described in the mortgage or foreclosure proceedings is sufficiently met by an affidavit of a surveyor that there is no difficulty in identifying the property in question from the description given in the judgment.—Abbott v. Curran, 344.
8. An objection that the bond and mortgage were not produced before the referee is sufficiently met by proof that the same had been duly executed and delivered, that no part of the debt had been paid, and by proof of the loss of the original papers, in the absence of any evidence to the con- trary.-Id.
9. An objection that the sale was not made by the sheriff cannot obtain where the sale was regular in all other respects, and a sale made by a referee appointed on the written consent of all the parties who have ap- peared presents no irregularity.-Id.
10. The fact that the notice of the sale was published sometimes only in the second edition of a newspaper affords no objection to the title.-Id.
11. The words in the grant, by the State, of the lands in suit, "for commercial purposes only," are too vague on which to base an objection.-Id.
12. In a suit to foreclose a mortgage executed by the husband alone, the wife was made a party, and the judgment roll contained evi- dence of due service of the summons upon her, but was in fact served upon her bus- band only; upon a motion to set aside or modify the judgment, the husband being living, Held, That her right to present relief was in the discretion of the Court, and was properly refused.-Smith v. Askin, 394. 13. Testator devised his real and personal estate to his wife during widowhood, and upon her death or re-marriage to his chil- dren, to be divided between them in equal proportions. She was authorized to make such advances out of the estate to the chil- dren as she should in her discretion deem
best for their maintenance and support, the amount of which to be charged to and deducted from their shares upon the final distribution. The widow was appointed sole executrix and guardian, and authorized as executrix to mortgage, lease, sell and convey the whole or any part of the estate as she should in her discretion deem best for the purpose of carrying into effect the provisions of the will. Upon her re-mar- riage she executed a mortgage of the real estate. Held, That her power to do so ceased upon her re marriage.-The Mutual Life Ins. Co. v. Shipman et al., 442.
14. Only such persons are required to be parties to a foreclosure suit as have acquired rights or interests, or claim to have done so, subsequent to the mortgage. Any inter- est acquired prior thereto cannot be consid- ered or determined in such an action.-Bram v. Bram et al., 519.
15. In an action tried before the Court it is not necessary for the Court to find as facts and state in its decision matters admitted by the pleadings.-Id.
16. F. and wife joined in a mortgage to plain- tiff of lands of F. to secure an obligation of F. Afterward F. made a general assign- ment, and his assignee conveyed to defend- ant the mortgaged lands. The mortgage becoming due, defendant tendered plaintiff the amount due and demanded an assign- ment to himself of the mortgage, which plaintiff refused, and proceeded to foreclose. Held, Defendant was entitled to the assign- ment, and the wife of F. had no superior equities forbidding it.-Platt v. Brick, 554. 17. In an action by a grantee of lands to re- strain the enforcement of a prior mortgage by the assignee thereof, who took it in good faith and for value, and praying for the cancellation of said mortgage and assign- ment and their discharge of record, on the ground that the grantor fraudulently repre- sented that the property was unencumber- ed, and induced plaintiff to forego an ex- amination of the records, and that said mortgage was without consideration, etc. Held, That the declarations of the assignor made while he was the owner and holder of the mortgage, that the mortgage was given without any consideration for the purpose of keeping off the creditors of the mortgagor, and had not been delivered prior to the conveyance to plaintiff, are inadmis- sible against the assignee.-Briggs v. Lang- ford et al., 563.
See CORPORATIONS, 1-3; DEEDS, 1, 2, 11, 12, 15; EXECUTORS, 3; FIRE INSURANCE. 5; PARTNERSHIP, 8, 9.
MUNICIPAL CORPORATIONS.
1. A statute authorizing the mayor and com- mon council of a city to appoint commis- sioners for a public park, and giving them
the control over the park and the approaches thereto, and imposing upon them the duty of keeping them in good repair, does not relieve the city from the duty imposed by its charter to keep all the streets in repair, and therefore does not absolve it from lia- bility for damages resulting from defects existing in a street within the jurisdiction of the commissioners. Such commissioners are agents or officers of the corporation en trusted with the performance of a corporate duty for the benefit of the inhabitants, and the city therefore is liable for their neglect, acts or omissions respecting such duties.- Polley v. The City of Buffalo, 163.
2. A memorandum kept in the office of a city engineer that a permit to excavate a street for a sewer had been issued is competent evidence of the fact and to charge the city with notice of the existence of a defect arising from the filling of the excavation.— Id.
3. In an action ex delicto against a city it is not necessary to allege in the complaint that the claim has been presented to the common council for audit, as required by the city charter.-Nagle v. The City of Buf falo, 214.
4. Where the charter of a municipal corpora- tion imposes upon it the duty of directing the manner and superintending the making and repairing of sidewalks in its streets, its assent to an unauthorized alteration of a sidewalk by an adjacent owner can only be shown by formal corporate action. Neither knowledge of individual members of the common council that a change has been made, nor an omission of that body to ob- ject, can take its place and secure immunity to the corporation from claims for injuries caused thereby.-Urquhart v. The City of Ogdensburgh, 360.
5. While a municipal corporation may have the right to use or suffer wood to be used in the covering of water boxes in a sidewalk, it is its duty to see that they are kept safe and the sidewalk in a proper condition for the use of travellers.-Campbell v. The City of Syracuse, 449.
6. In order to establish the defense on the part of a municipal corporation in an action for negligence that for the purpose of re- moving snow and ice from the sidewalk it was without means or the ability to procure same, it must affirmatively appear that de- fendant had no funds from which to repair its streets and also that it had no power to procure funds.- La Duke v. The Village of Fulton, 453.
See CORPORATIONS, 5; HIGHWAYS, 2, 3; IN-
1. A defendant's wife is a competent witness
against him in a murder trial.-The People v. Petmecky, 107.
2. Evidence of defendant's proposal to a fel- low prisoner of a plan to overcome the sheriff and escape is competent.--ld.
3. Letters from defendant to his wife are competent evidence against him.—ld.
4. It is not error for the trial judge in his charge to define the degrees of murder in the inverse order of their enumeration in the statute, referring finally to the first degree of the crime, and then discussing evidence tending to show that defendant was guilty of murder in the first degree.-Id.
5. It is not error to charge that if the jury should find that defendant had knowingly testified falsely in respect to a material fact, then his testimony is entitled to credit only so far as the jury shall find it to be consist- ent with the established facts, or corrobo- rated by the testimony of others.-Id.
6. It is not error to charge: "If the prisoner at the bar is to be found guilty of murder in the second degree or of any less offence, it is because you find that there is a reason- able doubt that he committed this act from a deliberate and premeditated design, and also that there is a reasonable doubt that he committed it while engaged in the commis- sion of the crime of grand larceny in the second degree."—Id.
7. Where the accused, knowing the location of the deceased, drew a pistol with some difficulty from his pocket, and in spite of remonstrances discharged it towards the deceased, inflicting a mortal wound, Held, That it was competent for the jury to find from the circumstances that the accused had a purpose, formed after more or less deliberation, to kill the deceased.-The People v. Conroy, 242.
8. A charge to the jury that there is no op- portunity to compromise in any respect, but it is a conviction of murder in the first degree or an absolute acquittal; and that is they believe a certain witness, that alone is sufficient to enable them to find a verdict of guilty, has the effect to mislead and prejudice the jury, and to take away from them the right and power to ascertain and determine, from the facts and circum- stances, the existence of the intent, delib- eration and premeditation, the necessary elements of the crime charged, and is there- fore a material error.-The People v. Kelly, 395.
9. Where the prosecution gave evidence to show that a man of the prisoner's appear- ance and description was seen about a cer- tain hour in the early morn in the vicinity of the crime, and shortly after its commis- sion, going towards the city; and the de- fence showed that he was at several places
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