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tender is not kept good, which is only necessary
in case of a debt of the one making tender.
Smith v. Mould, 149 N. Y. S. 552.

$319 (N.Y.Sup.) Evidence in a foreclosure
action held insufficient to show a valid tender
and an intentional refusal.-Smith v. Mould,
149 N. Y. S. 552.

X. FORECLOSURE BY ACTION.
(I) Judgment or Decree and Execution.
$491 (N.Y.Sup.) Where a lessee had rights
under two leases, the later of which, for 15
years, depended on the validity of an alleged
sale of the property by a broker, the lessee's
executor was not required to submit to a trial of
that question in a suit to foreclose mortgages
on the property, on affidavits, and so a stipula-
tion that a sale of the property should not affect
her rights under the earlier lease was no an-
swer to her demand for an assignment of the
mortgages.-Glennon v. Spencer, 149 N. Y. S.

226.

A lessee may ordinarily demand the assign-
ment of a prior mortgage to protect his pos-
session.-Id.

(J) Sale.

§ 524 (N.Y.Sup.) A plaintiff who bids in the
property at foreclosure may be compelled to
complete his purchase by paying the referee's
fees and expenses and taking the deed.-Bright-
on Heights Development Co. v. Interboro Home
Builders' Co., 149 N. Y. S. 496.

(N) Fees and Costs.

§ 582 (N.Y.Sup.) On foreclosure sale the ref-
eree is entitled, under Code Civ. Proc. $$ 3297,
3307, only to the fees and commissions therein
specified, and not to a minimum fee of $50,
regardless of the amount of the bid.-Harburger
v. St. John's African M. E. Church, 149 N. Y.
S. 516.

extinguishing apparatus under Greater New
York Charter, § 762, is bound to exercise reason-
able discretion, and the reasonableness of an or-
der is reviewable first by surveyors and then
by certiorari.-People v. Kaye, 106 N. E. 122,
212 N. Y. 407.

V. OFFICERS, AGENTS, AND EM-
PLOYÉS.

(A) Municipal Officers in General.
$162 (N.Y.Mun.Ct.) Under Greater New
York Charter, § 15696, as added by Laws 1912,
c. 251, that city employé, who left the city for
several months without obtaining leave of ab-
sence, upon his return obtained leave of ab-
sence withhout pay, held not to entitle him to
compensation for his absence on the theory
that the leave granted was illegal.-Devlin v.
City of New York, 149 N. Y. S. 1061.
(B) Municipal Departments and

Thereof.

Officers

$185 (N.Y.Sup.) Where a detective accepted
money from a citizen, complaining of violations
of the law, as part of a plan to secure evidence,
and upon failure of the plan returned the
money, he did not receive money from citizens,
and, having acted in good faith, cannot be dis-
missed.-People ex rel. Cohen v. Waldo, 149
N. Y. S. 965.

$189 (N.Y.) The Three Platoon Law, §§ 1, 3,
held not to relieve a policeman, when not on his
tour or reserve duty, as there defined, of duty
to obey an order of his superior, as one to
drill, pursuant to a requirement of the depart-
ment for drill an hour seven times a year.-
People ex rel. MacNish v. Waldo, 106 N. E. 116,
212 N. Y. 348.

§ 191 (N.Y.Mun.Ct.) Under Greater New
York Charter, §§ 1181, 1543, 1548, inspector of
foods of department of health held not public of-
ficer, and even if he were he could not recover
compensation for an absence from duty without
obtaining leave.-Devlin v. City of New York,
149 N. Y. S. 1061.

(0) Operation and Effect.
$588 (N.Y.Sup.) Under the pleadings, held,
that a judgment foreclosing mortgages on the
interest of a cestui que trust was conclusive,
and barred the cestui from thereafter claiming
$192 (N.Y.Sup.) The chief inspector in charge
that the holder of the mortgage was acting as of the Brooklyn division of the old building or
mere colorable assignee for the trustee.-inspection bureau of the tenement house de-
Archer v. Archer, 149 N. Y. S. 426.

a

MOTIONS.

See New Trial, § 157; Pleading, §§ 345-367.
MOVING PICTURES.

See Copyrights, § 47.

MUNICIPAL CORPORATIONS.

See Counties; Courts, §§ 188, 189; Criminal
Law, $ 217, 251; Dedication, § 35; Emi-
nent Domain, $$ 149, 152, 265; Gas, § 6;
Intoxicating Liquors, § 58; Judges, § 3
Health, § 3; Railroads, $$ 93, 95, 98, 113;
Street Railroads; Taxation, § 145; Towns;
Waters and Water Courses, §§ 188, 200.
II. GOVERNMENTAL POWERS AND
FUNCTIONS IN GENERAL.

§ 63 (N.Y.) The New York fire commission-
er, in ordering the installation of additional fire

partment is not within Greater New York Char-
ter, § 1543; and hence his summary removal
without a hearing is legal.-In re Garvey, 149
N. Y. S. 80.

§ 192 (N.Y.Sup.) One appointed chief inspec
tor of the old building bureau in the Brooklyn
division of the tenement house department held
not the head of a bureau established pursuant
to Greater New York Charter, §§ 1326-1344p,
and hence not protected from discharge without
filing of charges by section 1543.-In re Gar-
vey, 149 N. Y. S. 805.

IX. PUBLIC IMPROVEMENTS.
(B) Preliminary Proceedings and Ordi-
nances or Resolutions.

$ 304 (N.Y.Co.Ct.) That the petition for an
improvement in the city of Lockport called for
a "cement sidewalk," and the ordinance referred
to it as a "concrete walk," held not to invalidate
the assessment made against an abutting owner
for the expense of constructing a walk.-Ap-
peal of Ransom, 149 N. Y. S. 1056.

$323 (N.Y.Sup.) One assessed for an improvement has sufficient interest to maintain an action to enjoin the letting of a contract, on the ground that the council had no authority to provide for pavement of the kind specified, because it prevented competitive bidding. Whitmore, Rauber & Vicinus v. Edgerton, 149 N. Y. S. 508.

(C) Contracts.

$330 (N.Y.Sup.) That a street is directed to be paved with a patented article does not necessarily prevent competitive bidding.-Whitmore, Rauber & Vicinus v. Edgerton, 149 N.

Y. S. 50S.

The designation of a patented pavement in accordance with a city charter authorizing the property owners to select the kind desired held not to prevent competitive bidding.-Id.

$343 (N.Y.Sup.) Where a public contractor was entitled to rescind his bid for municipal work, notwithstanding the city's acceptance, he could maintain an action for money received to recover back a deposit made.-Joseph Balaban Co. v. City of New York, 149 N. Y. S. 954.

§ 346 (N.Y.Sup.) A contractor's bond to keep that portion of a highway lying within a village in repair held unenforceable because without consideration, where it was given after completion and acceptance of the work and on the state's refusal to pay therefor until the bond was given.-Village of Seneca Falls v. Botsch, 149 N. Y. S. 320.

§ 354 (N.Y.Sup.) Where, through the negligence of defendant's engineer, plaintiff received the wrong plans for a public improvement on which he bid, plaintiff could rescind the contract, though defendant city accepted it.Joseph Balaban Co. v. City of New York, 149

N. Y. S. 954.

§ 360 (N.Y.Sup.) A clause in the contract for city sewers, that no damages shall be allowed to the contractor because of the street not being in the condition contemplated, except an extension of time for the delay occasioned thereby, does not relieve the city from liability to the contractor for the increased cost of construction resulting from the acts of the city or its contractors in other work on the same street.Mechanics' Bank v. City of New York, 149 N.

Y. S. 784.

§ 370 (N.Y.Sup.) Where a contractor for a city sewer, after stopping work for some time because of delay in the payment of an installment due under the contract, thereafter accepted the payment of the principal of that installment, without reserving any right to recover interest, he waived his right to interest for the delay. Mechanics' Bank v. City of New York, 149 N. Y. S. 784.

§ 374 (N.Y.Sup.) Where a city failed to make a payment on account, as required by the contract for a sewer, the contractor could either repudiate the contract and recover the contract price for the work done, or could continue the work and sue for the past-due installment. Mechanics' Bank v. City of New York, 149 N. Y. S. 784.

Where a clause in the contract for a sewer authorized the borough president to suspend work, if deemed for the best interests of the city, without compensation to the contractor, except by such extension of time for the completion of the work as the president deemed necessary, the extension of time was the only relief to which the contractor would be entitled in case of such suspension.-Id.

(D) Damages.

assessor's

of

§ 402 (N.Y.Sup.) A board of damages from a change of street grade may not make an award on evidence disclosed by a view, but may take a view only to enable them to understand and apply the evidence presented by the parties.-Burrell v. City of New York, 149 N. Y. S. 812.

Where no assessment on a claim for damages to property by a change of street grade was made by the board of assessors, the duty devolved on their successors in office as a continuing duty to be performed by the board.-Id. Under Laws 1904, c. 460, authorizing an award of damages to property by change of street grade in connection with the construction of the East River bridge, an award without evidence or opportunity to offer it before the board of assessors would be a nullity.—Id.

Where a claim for damages for the change of a street grade was adjourned by the board of assessors before the hearing was completed, their successors in office could not make an award on the evidence taken before their predecessors

without giving complainant a further hearing.

-Id.

Action of board of assessors in making an award of damages to property by a change in street grade, under Laws 1904, c. 460, held judicial, and reviewable by certiorari.-Id.

$ 402 (N.Y.Sup.) The requirement of Laws 1895, c. 1006, § 5, that property owners claiming damages for the closing of a street shall present their claims to the comptroller, is not a condition precedent to proceedings by the comptroller, not under that section, but under the direction of the board of estimate and apportionment.-In re West 151st St. in City of New York, 149 N. Y. S. 972.

The proceeding prescribed by Laws 1895, c. 1006, § 5, is not exclusive, but such proceeding may be instituted under the direction of the board of estimate and apportionment, under Consolidation Act 1882, § 955, as amended by Laws 1884, c. 17, and Greater New York Charter (Laws 1897, c. 378) §§ 243, 442, as amended by Laws 1901, c. 466.---Id.

§ 404 (N.Y.Sup.) A suit in equity to set aside an award of damages by a board of assessors for change in street grade was not maintainable, because the record failed to show that certain exhibits were received in evidence, and hence that the board did not consider them in making the award.-Burrell v. City of New York, 149 N. Y. S. 812.

Where assessors of damages by change of street grade made an award without jurisdiction on the record of their predecessors, without affording complainant a further hearing, she had an adequate remedy by certiorari or

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

1166

mandamus, and was not entitled to equitable re-ings, structures, and inclosures, and not merely lief.-Id.

§ 404 (N.Y.Sup.) In action against contractor, who had completed paving of street, except the surfacing materials, when work was suspended for the winter, for injuries caused by falling in the space between street car tracks, about 10 inches above the surface, held, that instructions as to his duty to fill in this space did not properly submit the issue made by the pleadings and proof.-Beebe v. Schenectady Ry. Co., 149 N. Y. S. 836.

(E) Assessments for Benefits, and Special

Taxes.

§ 413 (N.Y.Co.Ct.) As used in Lockport City Charter, § 223, providing that one-half the cost of improving certain streets shall be paid from the general fund and one-half be assessed on the abutting properties, the term "streets" refers to the roadway set apart for vehicles, and does not include sidewalks, the entire expense of which may be assessed on abutting property.Appeal of Ransom, 149 N. Y. S. 1056.

$475 (N.Y.Sup.) Where a street railroad's assessment for street improvement was properly made, but was objectionable in so far as it required payment in one sum instead of in installments, such objection did not invalidate the assessment, or authorize the maintenance of the suit to vacate it.-Orange County Traction Co. v. City of Newburgh, 149 N. Y. S. 1.

$516 (N.Y.Co.Ct.) A determination by the council of Lockport, under City Charter, § 220, that the entire cost of an improvement shall be defrayed by the property benefited, unless void, is conclusive as against collateral attack, where no appeal is taken under section 246.-Appeal of Ransom, 149 N. Y. S. 1056.

§ 522 (N.Y.Sup.) Where a city's charter provided for street railroad assessments for pay: ing to be paid in installments, the city could assess the whole cost of paving the railroad's portion, but could only require payment in installments.-Orange County Traction Co. v. City of Newburgh, 149 N. Y. S. 1.

X. POLICE POWER AND REGULATIONS.

those mentioned in section 762 (Laws 1897, c. 378), be provided with fire alarm systems.-Id. (B) Violations and Enforcement of Regu

lations.

§ 630 (N.Y.) Where accused was ordered by the New York fire commissioner to install an a particular automatic sprinkler system in building, which order the commissioner was authorized to make by Greater New York Charter, $775, added by Laws 1911, accused's omission was punishable under section 773.-People v. Kaye, 106 N. E. 122, 212 N. Y. 407.

§ 642 (N.Y.Gen. Sess.) That the appellate court may disbelieve the evidence on which a magistrate found a defendant guilty of violating a city ordinance will not authorize a reversal. People v. Milne, 149 N. Y. S. 283.

XI. USE AND REGULATION OF PUB-
LIC PLACES, PROPERTY,
AND WORKS.

(A) Streets and Other Public Ways. $657 (N.Y.Sup.) In proceedings under Laws 1895, c. 1006, § 3, the requirement of section 2 of that act, that the street shall not be closed until some other street bounding the blocks damaged has been physically opened, does not apply. In re West 151st St. in City of New York, 149 N. Y. S. 972.

§ 706 (N.Y.Sup.) In an action against a city for the death of a child run down by a city cart. the question whether the child's mother was guilty of contributory negligence held for the jury.-Tolchinsky v. City of New York, 149 N. Y. S. 1016.

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in Obstructions and Other Public Ways. of $806 (N.Y.Sup.) Failure along a sidewalk at night to see a cable stretched across it two or three inches above its surface is not contributory negligence.-Whitehill v. Hartman Const. Co., 149 N. Y. S. 518.

§ 808 (N.Y.Sup.) For a landowner to permit (A) Delegation, Extent, and Exercise of ice to form on the sidewalk in front of his

Power.

§ 591 (N.Y.) An order granted by a New York fire commissioner under Greater New York Charter, § 762, requiring defendant to install a separate system of automatic sprinklers, held not void as an exercise of nondelegable legislative power.-People v. Kaye, 106 N. E. 122, 212 N. Y. 407.

$603 (N.Y.) Greater New York Charter, c. 15, tit. 3, § 762, authorizing the fire commissioner to order the installation of other means of preventing and extinguishing fires than those particularly specified in the section, held to authorize the commissioner to compel the installation of a separate and distinct system of automatic sprinklers, where the surrounding circumstances rendered such order reasonable.People v. Kaye, 106 N. E. 122, 212 N. Y. 407. Greater New York Charter, § 775, subd. 3, added by Laws 1911, c. 899, was only effective to empower the city to require that all build

premises, without effort to remove the accumu lation, is not actionable wrongdoing, for which he is liable.-Eldred v. Keenan, 149 N. Y. S.

376, 1079.

§ 808 (N.Y.Sup.) The abutting owner is not liable for injury to a pedestrian from a cable of a donkey engine left stretched across the sidewalk at night by a contractor for mason work on the abutting lot.-Whitehill v. Hartman Const. Co., 149 N. Y. S. 518.

§ 808 (N.Y.Sup.) In an action for damages from the collapse of a sidewalk, held that plaintiff, who did not show that defendants, the abutting owners, had made the vault into which he fell or knew of its existence, could not recover.-Gottlieb v. City of New York, 149 N. Y. S. 589.

The primary liability for damage occasioned by neglect to keep sidewalks in repair rests upon the municipality, and not upon the abutting property owners.-Id.

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NEWSPAPERS.

See Partition, § 34; States, § 191; Vendor and See Contracts, § 215; Frauds, Statute of, § 49. Purchaser, §§ 49, 112.

NECESSARIES.

See Parent and Child, § 3.

NECESSITY.

See Easements, § 18.

NEGLIGENCE.

NEW TRIAL.

See Criminal Law. §§ 912-959, 1186; Divorce, §§ 221, 228.

II. GROUNDS.

(H) Newly Discovered Evidence. $99 (N.Y.Sup.) An application for a new trial for newly discovered evidence must show See Carriers, § 131, 149, 383; Evidence, that it could not with reasonable diligence have 265; Master and Servant, §§ 114-329; Mu- been obtained on the trial and that it is matenicipal Corporations, §§ 706, 806, 808; Rail-rial, is not cumulative, and will probably change roads, $$ 278, 305, 337; Street Railroads. §§

98-100, 117.

III. CONTRIBUTORY NEGLIGENCE. (C) Imputed Negligence.

§ 89 (N.Y.Sup.) Negligence of a mother held to preclude recovery for the death of her child from being struck by a train at a crossing.Kieley v. New York Cent. & H. R. R. Co., 149 N. Y. S. 299.

IV. ACTIONS.

(B) Evidence.

$134 (N.Y.Sup.) That the broken link of a hoisting chain showed internal crystallization, and that to restore their strength such chains should be annealed after six months' constant use, is insufficient to show negligence; there being no evidence of how long the chain had been used, and plaintiff's evidence showing such crystallization might take place in four months. -Doyle v. Atlantic Stevedoring Co., 149 N. Y. S. 802.

(C) Trial, Judgment, and Review.

136 (N.Y.Sup.) It is not negligence as a matter of law for a parent to permit a child non sui juris to be unattended in a public street. -Kieley v. New York Cent. & H. R. R. Co., 149 N. Y. S. 299.

§ 136 (N.Y.Sup.) Contributory negligence is a question for the court only where it clearly ap

For cases in Dec. Dig. & Am. Dig. Key No. Series

the result.-Marks v. Magid, 149 N. Y. S. 942.

§ 101 (N.Y.Sup.) Evidence of testimony given by plaintiff in supplementary proceedings brought against him is not newly discovered evidence warranting a new trial to defendant, where defendant was examined in the same proceeding and discussed with the attorney for the judgment creditor the testimony of plaintiff.-Grafton v. Ball, 149 N. Y. S. 447.

§ 102 (N.Y.Sup.) A defendant, who knew that a public record contained evidence in his favor, cannot be granted a new trial on the ground of newly discovered evidence contained in the record, where any sort of diligence would have enabled him to have produced it at the trial.Grafton v. Ball, 149 N. Y. S. 447.

§ 104 (N.Y.Sup.) Newly discovered evidence tending only to corroborate the evidence at trial is no ground for new trial.-Grafton v. Ball, 149 N. Y. S. 447.

§ 108 (N.Y.Sup.) A new trial will not be granted on the ground of newly discovered evidence, where it is not likely that such evidence would produce a different result.-Grafton v. Ball, 149 N. Y. S. 447.

Certain newly discovered evidence held not in conflict with the claims of plaintiff, and not to authorize a new trial.-Id.

§ 108 (N.Y.Sup.) Where there have been two trials of the case, a new trial should not be granted for newly discovered evidence, unless there is a probability of a different result Townsend v. Perry, 149 N. Y. S. 494.

& Indexes see same topic and section (§) NUMBER

-

III. PROCEEDINGS TO PROCURE NEW TRIAL.

§ 133 (N.Y.Sup.) An order granting a new trial for newly discovered evidence was erroneous, where the minutes of the trial were not before the court.-Marks v. Magid, 149 N. Y. S. 942.

$157 (N.Y.Sup.) Where a motion for a new trial for newly discovered evidence was based upon affidavits and the records on former ap; peals, all the papers should be considered, and an order, based on a consideration of the affidavits only, will be reversed.-Townsend v. Perry, 149 N. Y. S. 494.

NOTES.

See Bills and Notes.

NOTICE.

See Bills and Notes, § 346; Easements, § 8; Executors and Administrators, § 149; Food, $8; Judgment, § 840; Jury, § 25; Landlord and Tenant, § 90; Master and Servant, § 252; Mechanics' Liens, § 139; Principal and Agent, §§ 153, 170; Trial, § 89.

was not against the weight of the evidence.People ex rel. Lenahan v. Grifenhagen, 149 N. Y. S. 636.

876 (N.Y.Sup.) The expression "separated from the service," as used in rule 16 of the Civil Service Commission, which, by Civil Service Law, § 6, has the force of law must be given the same meaning as it has in Civil Service Law, § 19, and, thus construed, does not apply to one who was granted an indefinite leave of absence.-People ex rel. Davie v. Lynch, 149 N. Y. S. 895.

indefinite leave of absence, is not separated from A state factory inspector, who is granted an the service, within rule 16 of the Civil Service Commission.-Id.

II. TITLE TO AND POSSESSION OF OFFICE.

§ 83 (N.Y.) Equity has no jurisdiction over contests for office, even if the election is claimed to be void, but the parties aggrieved must assert their rights in proceedings provided by statute or in actions at law.-Schieffelin v. Komfort, 106 N. E. 675, 212 N. Y. 520.

OLEOMARGARINE.

OPEN AND CLOSE.

$5 (N.Y.Co.Ct.) By "constructive notice" is See Food, § 8. ordinarily meant that a person should be held to have knowledge of a constructive fact, because he knows other facts from which it is concluded that he either did in fact know, or ought See Appeal, § 969; Trial, § 25. to have known, the fact in question.-Boyd v. Buffalo Steam Roller Co., 149 N. Y. S. 1050.

NUISANCE.

See Railroads, § 113.

OBLIGATION OF CONTRACTS.

See Constitutional Law, § 121.

OFFICERS.

See Banks and Banking, § 71; Bribery; Corporations, $$ 294, 305, 310, 319, 320, 414, 639; Counties, §§ 133, 1532, 196; Justices of the Peace; Mandamus, § 172; Municipal Corporations, §§ 162-268; States, §§ 52, 1682. I. APPOINTMENT, QUALIFICATION,

AND TENURE.

(D) De Facto Officers.

§ 40 (N.Y.Sup.) There can be no de facto officer where there is no office to fill.-People ex rel. Gross v. Hayes, 149 N. Y. S. 115.

(F) Term of Office, Vacancies, and Holding Over.

$55 (N.Y.) As a general rule, when a law establishing an office takes effect, a vacancy in the office at once exists, unless the language of the law imports futurity of selection.-People ex rel. Snyder v. Hylan, 106 N. E. 89.

OPINION EVIDENCE.

See Evidence, § 568.

ORDERS.

See Appeal; Forcible Entry and Detainer, § 21.

ORDINANCES.

See Municipal Corporations, §§ 591-642.

PARDON.

§ 4 (N.Y.Sup.) Under Const. art. 4, §§ 5. 6. upon impeachment of Governor by Assembly, powers and duties held to devolve upon the Lieutenant Governor, and the Governor's attempt thereafter to exercise the pardoning power was not valid as an act of a de facto Governor.-People ex rel. Robin v. Hayes, 149 N. Y. S. 250.

PARENT AND CHILD.

See Bastards; Guardian and Ward; Infants. $1.(N.Y.Sur.) A "parent" is one who has generated a child; is a father or a mother.In re Tombo, 149 N. Y. S. 219.

§3 (N.Y.Sup.) The parent cannot be held as for necessaries where, unauthorized by him, his child goes to a strange dentist and has his teeth filled, on a representation that his father will pay.-Sullivan v. Liggins, 149 N. Y. S. 517.

PAROL EVIDENCE.

(G) Resignation, Suspension, or Removal.
§ 72 (N.Y.Sup.) In a proceeding to review the
dismissal of a Spanish War veteran, held, that
a finding that he had been guilty of misconduct See Evidence, § 404.

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