Marketable title -power to mortgage, improperly exercised· what is
notice thereof, to a purchaser under the foreclosure of the mortgage — notice to a
lender of the misfeasance of a trustee.
Deed adjudged to be a mortgage — interest upon advances - offset of
expenditures against use and occupation — affirmative judgment for an excess of
expenditures denied — provision as to redemption.
Election — an unsuccessful action to set aside a contract, not a bar to the
foreclosure of a mortgage executed pursuant to such contract.
Judgment error in calculating damages
remedy is by motion.] 1. Where an error has been made in the calculation of
past damages resulting to an abutting owner from the operation of an ele-
vated railroad, a motion should be made to correct the judgment.
No appeal is necessary to correct such an error.
LOY v. METROPOLITAN ELEVATED RAILWAY CO.....
2. Remedy by motion to correct a judgment not following the decision.]
A motion to amend a judgment, which does not follow the decision made in
the action, is in accordance with proper practice, and the Appellate Division
may, upon an appeal from an order denying such a motion, grant the proper
relief. FOLEY . FOLEY.
Judgment by default — allegations as to misrepresentations by a corpora-
tion, without disclosing the agent who made them, are insufficient to justify open-
ing it.
See BUTTERICK PUBLISHING Co. v. KING.....
Bill of particulars as to the place of publication of a libel and the parties
to whom it was published — what must be shown on a motion for it.
Lis pendens - when an order canceling it may be made.
See FITZSIMONS . DROUGHT..
Motion to make an answer definite.
See PITTENGER . S. T. MASONIC RELIEF ASSN.
Change of place of trial.
MUNICIPAL CORPORATION - Cloud upon title. an assessment valid
upon its face, but invalid because beyond the jurisdiction of the commissioners
of assessment-statute, its clear meaning will not be changed by construc-
tion.] 1. In an action brought to remove an alleged cloud upon the
plaintiff's title created by an assessment for the cost of the West Side sewer,
it appeared that chapter 407 of the Laws of 1876, as amended by chapter 266
of the Laws of 1887, authorizing the trustees of the village of Canandaigua
to construct and maintain sewers, and prescribing the method of procedure,
provided that if the trustees were unable to obtain a conveyance of the
fands, commissioners should be appointed to appraise the benefits and dam-
ages, and that the commissioners should "assess the damages, expenses and
costs of construction upon the owners of property adjoining and along the
line of said sewer or drain and upon the owners of such other real property,
as the said commissioners may deem to be benefited by said sewer or drain,"
and should make a report containing their appraisements and assessments
for benefits. It was also provided that if "the trustees are able to acquire,
by agreement, all the real estate, rights and easements required for the
sewer, commissioners shall be appointed for the purposes of assessing
benefits."
The trustees of the village obtained, by deed, a right of way from
various parties through whose lands the West Side sewer was to be con-
structed, upon condition that, if the grantors paid their assessment for
another sewer which had been constructed opposite their premises, they
should not be assessed for benefits arising from the construction of the
West Side sewer here in question.
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MUNICIPAL CORPORATION—Continued.
The commissioners made a report in which they omitted from the prop-
erty assessed all the lots over which the owners thereof had granted to the
trustees a right of way.
Held, that the action could be maintained:
That as the statute plainly directed the commissioners to assess the bene-
fits upon the property "adjoining and along the line of" the sewer, there
was no room for a construction which would give no force to such
words;
That the commissioners were necessarily bound by the action of the trus
tees in obtaining the deeds of the right of way, as benefits could not be
assessed until the trustees had acquired a right of way;
That the commissioners having intentionally omitted from the assessment
a portion of the property designated by the Legislature as benefited, the
necessary effect of which was to increase the assessment against the plaintiff,
that assessment was absolutely void;
That a court of equity would take jurisdiction of the matter because the
act of which complaint was made was beyond the jurisdiction of the com-
missioners, and because the assessment was valid upon its face and extrinsic
evidence would be required to establish its invalidity.
MCKECHNIE BREWING CO. v. TRUSTEES..
2. When a party aggrieved is not confined to a remedy by appeal pro-
vided by the statute.] By section 3 of the act of 1887 it was provided that an
appeal may be taken by a person considering himself aggrieved to the County
Court, and that "upon such appeal the County Court may, by an order,.
affirm, alter, vacate or correct said report, which order shall be final."
Held, that the plaintiff's remedy in this case was not limited to the appeal
to the County Court prescribed by the statute. Id.
3. A street surface railroad company must procure the consent of the
local authorities before it can apply to the court for the use of the tracks of an
existing road.] Section 91 of the Railroad Law, as amended by chapter 545 of
the Laws of 1895, forbidding the extension or operation of a street surface
railroad or of its branches unless "the consent of the local authorities having
control of that portion of the street or highway upon which it is proposed
to build or operate such railroad shall have been first obtained," is to be
construed in connection with section 102 of the Railroad Law, as amended by
chapter 693 of the Laws of 1894, restraining a street railroad corporation
from constructing, extending or operating its road or tracks in that portion
of any street, avenue, road or highway in which a street surface railroad is
or shall be lawfully constructed, without first obtaining the consent of the
corporation owning and maintaining the same-except for a distance not
exceeding 1,000 feet, if the court, upon application, is satisfied that the
public convenience requires it.
The effect of these provisions is that before a street surface railroad can
have the right to operate its road through any street in a city it must procure
the consent of the local authorities, although another company is already
operating its road through such street, and that it must procure the right
to the use of such street as a part of its route before it can commence pro-
ceedings to secure the right to use the property of another company upon
and as a part of such route.
COLONIAL CITY T. Co. v. KINGSTON R. R. Co.......
4. New York city - how far bay windows and stoops may encroach on the
street line usage.] The question whether bay windows and a stoop which
project beyond the line of a city street are lawful structures is one which
can arise only between the municipal authorities and the owner of the
building.
The fact that many other similar encroachments exist upon city streets is
not material in determining whether any particular obstruction is a viola-
tion of law except so far as to show the assent, in those instances, of the
municipal authorities, and a situation from which legislation on the subject
may be assumed. BROADBELT . LOEW....
Jurisdiction of the park commissioners-power of the common
council.] Where a public park has been authorized by law, but has not
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been laid out nor its area defined, nor its boundaries settled, the fact that
the commissioners of public parks of the city of New York are invested
with full authority to allow the construction of bay windows on any street,
within 350 feet of the boundary line of any park or public place under their
jurisdiction, cannot be invoked by an owner of a house, situated upon a
street which may in the future be within 350 feet of the proposed park,
in order to justify the illegal projection of bay windows in such house.
It is within the power of the common council of the city of New York to
pass appropriate ordinances regulating the subject of the fronts of buildings
facing on public streets, and to grant permission to owners of buildings to
occupy a certain space beyond the building line, for certain purposes, pro-
vided that those constructions do not in reality interfere with the free use
of those parts of the public streets which are to be kept clear of obstructions
as public highways. Id.
6. ·Power of the common council.] In view of the powers given to the
common council of the city of New York by section 86 of chapter 410 of
the Laws of 1882, and of the ordinances of the common council of the city
of New York, enacted thereunder, an area space may extend five feet from
the house line, and a bay window may be constructed within the area space,
provided its construction does not encroach more than one foot beyond the
street line. Id.
7. Bay windows in area spaces.] The provisions of subdivision 4 of
said section 86, providing that the common council shall have no power
to authorize the placing or continuing of any encroachment or obstruction
upon any street or sidewalk, except the temporary occupation thereof during
the erection or repair of a building on a lot opposite the same, must be con-
strued with reference to subdivision 17 of the same section, authorizing the
common council to pass ordinances with respect, among other things, to
areas, and the provisions of subdivision 4 can be reasonably applied only to
that part of the highway which is used by the public-that is to say, the
carriageway and the sidewalk proper, outside of the stoop line. Id.
8. Discharge of a patrolman — found sitting down on a box, with a pail
of beer near him.] A member of the police force of New York city was found
by an inspector, during his tour of patrol duty, sitting on a box on a dock,
which was within his beat, with a pail of beer beside him, in company with
another patrolman, who was eating oysters.
The policeman testified that he sat down because he felt the effects of a
wound received in the discharge of his duty. There was no evidence that he
sat there for any length of time or drank the beer.
Held, that such facts did not justify a finding of neglect of duty or his
removal from the force. PEOPLE EX REL. HOWARD v. ROOSEVELT ....
An action against a city, brought by a husband for the loss of his wife's
services it is one for damages for personal injuries,” within Laws 1886, chap.
572, § 1-- it must be brought within a year, and notice of an intention to sue
must be given.
Action against a municipal corporation for personal injuries
filing of a notice of intent to sue is a condition precedent · the fact of such
filing must be alleged — liability of a city for the negligence of an independent
contractor-proximate cause.
See WHITE . MAYOR....
City of Brooklyn · assessors cannot, on objections being made to an
assessment, increase it — proper items of debit and credit in fixing the assess-
ment of a corporation — value of patent rights deducted · - all objections must be
first made to the assessors.
See PEOPLE EX REL. N. Y. & N. J. TEL. Co. v. NEFF....
Retention of money to indemnify a city against a claim that a contrac-
tor has been negligent· it is not a trust fund to be paid to the claimant — the
contractor is entitled to a trial by jury.
MUNICIPAL CORPORATION - Continued.
Damage by an elevated railroad — an abutter, not showing depreciation,
must show that his property has not shared in the general increase of value —
not that the railroad has changed the character of the street.
See STACEY V. METROPOLITAN ELEVATED R. Co.
Negligence no recovery for an act of negligence not pleaded — charge
as to what is a public highway. a mistake in the treatment of an injured per-
son is not a defense.
See CAVEN v. CITY OF TROY...
Negligence of village trustees in allowing wagons to stand by the side of
a street they are not objects likely to frighten gentle horses.
See STUDEOR v. VILLAGE OF GOUVERNEUR..........
Injuries resulting from a fall upon an icy sidewalk
cross it without contributory negligence.
See STONE. CITY OF POUGHKEEPSIE..
Builder-failure of, to furnish a statement to the building depart-
ment of New York city — not a defense to a mechanic's lien.
NEGLIGENCE- Use of a belt on a rag pulley, not a risk of the employment —
negligence of a co-servant, contributing to the result - evidence of an expert as
to the probability of one being caught in a rag pulley, and as to the cost of a
proper pulley.] 1. In an action where negligence was charged against the
defendants, it appeared that the defendants conducted a factory where the
plaintiff, who was about fifteen years of age, and worked as a general helper,
was directed to grind some needles, for which work power was furnished to
the grindstone by a belt which ran upon a shaft about six feet from the
floor, on which was a rag pulley wound upon the shaft. Loose ends of
rags hung down for a distance of from four to eight inches from the pulley,
which had no belt shifter. Underneath the shaft there was about two
feet of coal in a coal bin. While the plaintiff was at work the belt broke,
and he, as he had been directed, asked Krum, who was the assistant engineer,
to fix it. Krum told the plaintiff to get up on the coal bin and put the belt
over the shaft and to hold the belt while it was being fixed. While the
plaintiff was thus holding the belt the loose ends of the pulley caught
his shirt sleeve and his arm was pulled over the shaft, and he was injured.
Held, that the questions of negligence and of contributory negligence were
for the jury;
That it could not be said, as matter of law, that the accident was so
unlikely to happen as to relieve the defendants from liability, or the
danger so obvious that the plaintiff was chargeable with the risk, he being
inexperienced in the use of such machinery;
That, if Krum's negligence in telling the plaintiff to stand upon the coal
in the bin and hold the belt, contributed to the result, this would not
relieve the defendants;
That the general rule was that it was the duty of the master to keep a
machine in order, and that he could not delegate the duty so as to escape
liability.
Semble, that in this case Krum, in repairing the belt, was not acting as a
fellow servant of the plaintiff;
That it was not improper to ask an expert machinist the question:
"What do you say as to the probability of one being caught by a pulley
wheel being improvised of rags ?"
That it was not error to ask the cost of such pulleys of a witness who had
already stated in regard to pulleys of iron or wood of a suitable character,
"you can get them any size; they are not very expensive." DODD . BELL.. 258
2. Explosion of gas in a cellar from a cause not shown — presence of a
workman in the cellar with a candle. In an action where negligence was
charged against a gas light corporation, it appeared that the plaintiff was
standing on the ground floor of a building when an employee of the defendant
came into the house for some purposes connected with its gas pipes, went
down into the cellar, came upstairs and asked for a pair of pliers, went back to
the cellar, came up again, asked for a candle, and went into the cellar with
it, after which hammering was heard in the cellar, and shortly thereafter
there was a smell of escaping gas. It was then discovered that the employee
was unconscious in the cellar.
Persons who went down to rescue him at first could not see him, went to the
front of the cellar, and were about to pick him up when, as one of them
testified, "a big flash of fire came around us and scattered us all over the
floor."
There was no evidence to show that the employee of the defendant had
lighted the candle, or that he had any other light with him, nor any to show
the cause of the explosion by which the plaintiff was injured.
Held, that as there was no evidence that the workman lighted the candle,
or was in any manner the cause of the explosion, the defendant was not
liable for injuries sustained by the plaintiff therefrom:
That, in delivering gas, a gas company was not an insurer, but was simply
bound to that degree of care which the nature of the article dealt in, and the
consequences to be apprehended from an accident, reasonably called for, and
that within this definition of its liability the plaintiff could not recover.
SCHAUM . EQUITABLE GAS LIGHT CO..
Failure of a foreman to tell a servant that there is dynamite in a
hole which he directs the servant to clean out —the master is not liable.] The
liability of the master when the negligence in question is not his personal
act or omission, but is the immediate act or omission of a servant, turns
upon the character of the act or omission of which complaint is made.
If the co-servant whose act or omission caused the injury, is, at the time,
representing the master in doing the master's duty, the master is liable; if,
on the other hand, he is simply performing the work of a servant in his
character as a servant or employee merely, the master is not liable; and, in
the latter case, the fact that the person whose negligence causes the injury
is a servant of a higher grade than the servant injured, or that the latter is
subject to the direction or control of the former, and is engaged in execut-
ing the orders of the former, does not make the master liable.
Where the master has provided a competent foreman and proper and
necessary tools and instruments for blasting purposes, and has given his
foreman power to employ and discharge men, and has left the details of
the work and the method to be employed entirely to the foreman, the
master is not liable for injuries sustained by a servant, ignorant of the
use of dynamite, who is ordered by the foreman to clean out a hole, in
rock, loaded with dynamite below and powder above, and who has not been
told by the foreman that there is dynamite in the hole. VITTO . KEOGAN.. 329
4. Retention of money to indemnify a city against a claim that a con-
tractor has been negligent — it is not a trust fund to be paid to the claimant -
the contractor is entitled to a trial by jury.] A city contract contained a pro-
vision that, to cover any claim which might be made for injury or damage
arising out of the contractor's negligence, sufficient money might be retained
by the city until the claim was settled. The contractor having brought a
suit against the city to recover money withheld by the city under this pro-
vision of the contract, the claimant applied to be made, and was made, a
party defendant, between whom and the contractor, by an amended com-
plaint and answer, issues were raised as to the validity of the claim. The
case came on to be heard at Special Term, whereupon the contractor moved
that it be stricken from the calendar on the ground that it was not an action
in equity, but one at law, triable at a Trial Term, which motion was denied,
and judgment was rendered against the contractor and also against the city.
Held, that no cause of action was shown as against the city;
That the claimant had no right to intervene in the controversy between the
city and the contractor, as the promise of the contractor to the city was
merely an indemnity to it, and did not create a fund which was to be appro-
priated to the payment of any claim which arose out of the negligence of
the contractor;
That it was erroneous to refuse the contractor a trial by jury of the claim
made against him for injuries sustained because of the contractor's alleged
negligence. MANSFIELD . MAYOR.....
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