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MARRIAGE.

See "Divorce"; "Husband and Wife."
Evidence held to show a common-law mar-
riage. In re Schmidt (Sur.) 428.

MARRIED WOMEN.

See "Husband and Wife."

MARSHALS.

See "Sheriffs and Constables," § 2.

MASTER AND SERVANT.

1189

Liability of restaurant keeper for negligence
of servants, see "Innkeepers."

Production of books showing amounts paid em-
ployés in action for indemnity insurance, see
"Discovery," § 1.

Trade unions, see "Trade Unions."

§ 1. The relation.

Evidence in an action for salary for a period
after plaintiff's discharge held insufficient to
show a hiring for any definite time.-Lertora v.
Central Fruit Co. (Sup.) 425.

On conflicting evidence as to whether serv-
ant's discharge was without cause, and as to
whether contract of employment was termi-
nated by mutual consent, the case was for the
jury.-Webb v. Whitesell (Sup.) 454.

§ 2. Services and compensation.

Complaint by servant for wages held to state
a cause of action.-Gillespie v. Montgomery
(Sup.) 701.

Complaint in equitable action by manager of
brokerage business for his agreed compensation
held not demurrable for want of facts, though
the averments seeking equitable relief were in-
sufficient.-Gillespie v. Moutgomery (Sup.) 701.

Complaint by manager of brokerage business
the profits held not demurrable for want of
to recover agreed compensation of a share of
facts.-Gillespie v. Montgomery (Sup.) 701.

3. Master's liability for injuries to

servant.

In an action for negligent death of a serv-
ant, held, that the turning on of steam into a
tank, the sudden escape of steam from which
caused the death. was not the sole cause of the
accident.-Franck V. American Tartar Co.
(Sup.) 219.

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An employé, when killed by the unjointing
of a steam reservoir, held not a mere volunteer,
though he was not engaged in his regular em-
ployment.--Krueger v. Bartholomay Brewing
Co. (Sup.) 1054.

§ 4.

Tools, machinery, appliances,
and places for work.

A railroad company is liable for the death of
an employé from injuries caused by the de-
fective condition of cars in its use, but belong-
ing to another corporation.-Strauss v. New
York, N. H. & H. R. Co. (Sup.) 67.

There is no rule that a master, after dis-
covery of a defective place, is entitled to a rea-
sonable time to make repairs.-Franck v. Amer-
ican Tartar Co. (Sup.) 219.

In an action for the negligent death of a
servant, held, that the jury were warranted in
finding that the master should have known of
the defect which caused the accident some time
before the accident.-Franck v. American Tar-
tar Co. (Sup.) 219.

See "Work and Labor."
Admissions by employés, see "Evidence," § 3.
Where plaintiff's injuries were the proximate
Construction and operation of instructions in result of the contractor's failure to comply with
action for personal injuries, see "Trial," § 6. Laws 1897, p. 468, c. 415, § 20, as amended by
Employés of municipal corporations, see "Mu-Laws 1899, p. 351, c. 192, defendant was lia-
nicipal Corporations," § 1.

Examination of witnesses in action for personal
injuries, see "Witnesses," § 2.

ble therefor.-Holzman v. Katzman (Sup.) 478.
Employer, who directed servant not to adjust
guards in changing from one class of work to

and 121 New York State Reporter

another, held to have violated Laws 1897, p. [ her employment was legal.-Sitts v. Waiontha 480, c. 415, § 81.-Klein v. Garvey (Sup.) 998.

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Knitting Co. (Sup.) 911.

In an action for servant's injuries, evidence held insufficient to show that there was any de fect in the appliance which caused the accident. -Hoehn v. Lautz (Sup.) 921.

In an action for servant's injuries, evidence held to show that the cause of the accident was the carelessness of the servant in turning too much steam into the drum which he was cleansthe head of which was blown off.-Hoehn v. Lautz (Sup.) 921.

Where a master is negligent, the fact that an injury to a servant was partly due to the neg-ing, ligence of a fellow servant does not bar a recovery against the master.-Strauss v. New York, N. H. & H. R. Co. (Sup.) 67.

The negligence of a servant, intrusted by the master with the duty of inspection, is to be attributed to the master.-Franck v. American Tartar Co. (Sup.) 219.

§ 6.

Risks assumed by servant. A conductor on a street car, who has knowledge of the incompetency by reason of intemperance of the motorman on his car, assumes the risk of working with such motorman.-White v. Lewiston & Y. F. Ry. Co. (Sup.) 901.

Risks in operation of machinery, arising from failure to comply with Labor Law, Laws 1897, p. 480, c. 415, § 81, may be assumed by employé. -Sitts v. Waiontha Knitting Co. (Sup.) 911.

Girl, between 15 and 16 years of age, held qualified to assume the risk of injury from machine which she operated.-Sitts v. Waiontha Knitting Co. (Sup.) 911. § 7.

Contributory

servant.

negligence of

An employe held not charged with any duty of inspection, or with negligence in failing to discover dry rot in timber which broke.-Meehan v. Atlas Safe Moving & Machinery Truckage Co. (Sup.) 1031.

§ 8.

Actions.

In an action for negligent death of a servant, held, that the question as to the servant's culpability was for the jury.-Franck v. American Tartar Co. (Sup.) 219.

An operator of a corrugating machine held not entitled to recover for injuries sustained by the starting of the machine after he had relieved it from paper which had clogged therein, in the absence of proof that he shut off the power before attempting to clean the machine.Carley v. Gair (Sup.) 709.

In an action for servant's injuries, defendant may avail himself of the defense of assumption of risk, though he did not plead it, where plaintiff's own evidence shows that the risk was assumed.-White v. Lewiston & Y. F. Ry. Co. (Sup.) 901.

In action for injury to child between 14 and 16 years of age, employed in factory, burden of showing failure to comply with Labor Law, Laws 1897, p. 477, c. 415, § 70, held to be on plaintiff.-Sitts v. Waiontha Knitting Co. (Sup.)

911.

Action for injuries to child between 15 and 16 years of age, employed in factory, held to have been brought and tried on the theory that

To maintain an action under employers' liability act (Laws 1902, p. 1748, c. 600), it is necessary to show negligence on the part of the employer and absence of contributory negligence on the part of the servant.-Hoehn v. Lautz (Sup.) 921.

Under section 2 of Employers' Liability Act (Laws 1902, p. 1749, c. 600), notice of accident given by employé's administrator, within 120 days from accident, though after 60 days from appointment of administrator, held in time.Hoehn v. Lautz (Sup.) 921.

Whether servant assumed the risk of injury in operating planing machine without properly adjusting guard held a question for the jury.— Klein v. Garvey (Sup.) 998.

Contractor held liable, under Laws 1897, e. 415, § 18. for injury to employé from unsafe scaffolding.-Williams v. Roblin (Sup.) 1006.

Evidence in action for death of an employé from unjointing of a steam reservoir held sufficient to take to the jury the question of the employer's negligence.-Krueger v. Bartholomay Brewing Co. (Sup.) 1054.

Evidence in an action for death of an employé from the parting of a joint of a steam reservoir held insufficient to authorize a holding as matter of law that deceased assumed the risk.-Krueger v. Bartholomay Brewing Co. (Sup.) 1054.

Evidence in an action for death of an employé from the parting of a joint of steam reservoir held sufficient to authorize a jury to find that deceased was free from contributory negligence.-Krueger v. Bartholomay Brewing Co. (Sup) 1054.

§ 9.

Liabilities for injuries to third persons.

A truck driver's failure to discover that the driver of the preceding truck had left his seat and to use care to ascertain his whereabouts, heid negligence.-Steinacker v. Hills Bros. Co. (Sup.) 33.

Duty of shoring a building rests on the contractor, as against subcontractors, in the absence of proof to the contrary.-Nelson T. Young (Sup.) 69.

In order to hold contractor responsible for injury to workman on building, there must be an act of personal negligence causing the accident. -Nelson v. Young (Sup.) 69.

Statement to building contractor that building was unsafe held not inadmissible, on the ground that defendant had sublet all the work,

where there was no proof to that effect.-Nel-
son v. Young (Sup.) 69.

Certain evidence held admissible to show no-
tice to defendant building contractor of the un-
safe condition of the building.-Nelson v. Young
(Sup.) 69.

A charge as to duty to workmen, resting on
contractor under his contract with owner, held
objectionable as to the effect of the contract on
strangers.-Nelson v. Young (Sup.) 69.

Where defendants' foreman directed workmen
to erect a scaffold for use of independent con-
tractors in installing machinery, without direc-
tions as to method, defendants did not furnish
the scaffold, within Labor Law, Laws 1897, p.
467, c. 415, § 18.-Wingert v. Krakauer (Sup.)
261.

Defendants held under no obligation to erect
scaffold for use by independent contractors, em-
ployed to install machinery for piano factory.-
Wingert v. Krakauer (Sup.) 261.

In an action for injuries by being struck by
a wagon driven by defendants' servant, the
rate of speed of the wagon is a matter of evi-
dence, and need not be pleaded.-Lachenbruch
V. Cushman (Sup.) 476.

In an action against a master for trespass
committed by a servant, evidence held to show
that the trespass was committed by the servant
while acting within the general scope of his
authority, rendering the master liable therefor.
-Reed v. New York & R. Gas Co. (Sup.) 810.

MATERIALITY.

Of evidence in civil actions, see "Evidence,"
§ 2.

MEASURE OF DAMAGES.

See "Damages," § 3.

MECHANICS' LIENS.

Effect of bankruptcy proceedings, see "Bank-
ruptcy," § 2.

Statutory discovery, see "Discovery," § 1.
§ 1. Right to lien.

Where contractor failed to complete building,
mechanics' liens held to attach only to sum due
after deducting expense of completing it from
original contract price.-New Jersey Steel &
Iron Co. v. Robinson (Sup.) 151.

Lien Law, Laws 1897, p. 517, c. 418, § 7,
held to forbid only collusive advance payments.
-Wolf v. Mendelsohn (Sup.) 465.

A subcontractor held to have no greater right
of lien because of false statements of the own
er and contractor as to the amount due; she
having suffered no loss by relying thereon.-
Wolf v. Mendelsohn (Sup.) 465.

2. Enforcement.

Evidence held insufficient to support a finding
as to the amount of work not done when a sub-
contractor abandoned the work.-Miller v. Nor-
cross (Sup.) 56.

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By corporations, see "Corporations," §§ 3, 4.
Of personal property, see "Chattel Mortgages."
Transfer of interest in, as payment, see "Pay-
ment," § 1.

Scope and extent of review in foreclosure case,
see "Appeal," § 5.

§ 1. Requisites and validity.

Parties may execute a conveyance with the
intention that title shall become absolute and
right of redemption determined on default after
expiration of time for payment.-Luesenhop v.
Einsfeld (Sup.) 268.

In determining whether conveyance consti-
tutes merely mortgage, the determining consid-
eration is the intent of the parties.-Luesenhop
v. Einsfeld (Sup.) 268.

Where grantee had come into possession and
paid for improvements, etc., held, that the gran-
tor could not claim that the instrument was

and 121 New York State Reporter

merely a mortgage.-Luesenhop v. Einsfeld | Opening or setting aside default judgment, see (Sup.) 268.

§ 2. Construction and operation. Mortgages on a leasehold can have no duration beyond the term of the lease, and mortgagees in possession thereunder can acquire no greater rights by virtue of their possession than the lessees.-Miller v. Warren (Sup.) 1011. § 3. Assignment of mortgage or debt. A bond and mortgage may be transferred by mere delivery without a technical assignment, provided there is an intention so to transfer accompanying the delivery. John H. Mahnken Co. v. Pelletreau (Sup.) 737.

§ 4. Foreclosure by action.

"Judgment," § 1.

Relating to pleadings, see "Pleading,” § 6.

Under Gen. Prac. Rule 37, the court is not bound to grant unlawful relief; but it is incumbent on the opposite party, on receiving notice of a motion, to advise the court that the relief prayed was unlawful.-People v. Miller (Sup.) 341.

MUNICIPAL CORPORATIONS.

See "Towns."

Mandamus, see "Mandamus," § 1.
Municipal courts, see "Courts," § 3.
Ordinances relating to intoxicating liquors, see
"Intoxicating Liquors."

Street railroads, see "Street Railroads."
§ 1. Officers, agents, and employés.

Though, on the reversal of an order overruling the answer in an action to foreclose, and directing judgment, the judgment for plaintiff, entered prior thereto, must be vacated, effect of On certiorari to review a determination of the the sale thereunder need not be determined.-police commissioner dismissing relator from the Hidden v. Van Dyke (Sup.) 14. police department, evidence held to sustain such decision.-People v. Partridge (Sup.) 19.

On the reversal of an order overruling the answer on foreclosure, and directing judgment, appellant held absolutely entitled to the vacation of the judgment entered prior thereto.-Hidden v. Van Dyke (Sup.) 14.

In mortgage foreclosure, held, that plaintiff was not entitled to elect a forfeiture for nonpayment of installments of interest.-Schieck v. Donohue (Sup.) 206.

A purchaser of real estate under mortgage foreclosure will not be compelled to perform his contract, where the title depends on questions of fact which must be proved by parol evidence.-Huber v. Case (Sup.) 663.

Where land subject to a life estate was sold under a mortgage which was a first lien thereon, the purchaser held to have acquired a title superior to the claims of the life tenant and his creditors, who were made parties to the suit, under Code Civ. Proc. § 1632.-Marshall v. United States Trust Co. (Sup.) 747.

§ 5. Redemption.

Agreement between mortgagee and mortgagor to regard release given by latter as extinguishing mortgagor's rights held valid.Luesenhop v. Einsfeld (Sup.) 268.

Release by mortgagor to mortgagee held broad enough to include release of equity.-Luesenhop v. Einsfeld (Sup.) 268.

The payment by a mortgagee to a mortgagor of a sum of money, and asking for a release from all claims, was not an acquiescence in the mortgagor's claim to the equity of redemption.-Luesenhop v. Einsfeld (Sup.) 268.

MOTIONS.

Arrest of judgment in criminal prosecutions, see "Criminal Law," § 5. Change of venue in civil actions, see "Venue," $ 1.

Dismissal of action before trial, see "Dismissal and Nonsuit," § 2.

Dismissal or nonsuit on trial, see "Trial." § 5. New trial in civil actions, see "New Trial," § 3.

Greater New York Charter, Laws 1901, pp. 109, 111, c. 466, §§ 255, 256, held not to authorize the corporation counsel to appear for and defend a policeman in an action for willful assault on a person arrested by him.-Donahue v. Keeshan (Sup.) 144.

Rule 44b of police department held to vest in police captains a discretion in determining what are "suspicious places," which must be exercised in regard to evidence.-People v. Greene (Sup.) 172.

On certiorari to review relator's dismissal from police force, evidence held insufficient to show that a house not reported by relator as a "suspicious place" was such a place.-People v. Greene (Sup.) 172.

On certiorari to review relator's dismissal from the police force, evidence held insufficient to show that a house which relator permitted to exist in his district was a house of prostitution.-People v. Greene (Sup.) 172.

Under Code Civ. Proc. § 2140, it is duty of Appellate Division, on certiorari, to determine whether there is any competent evidence in support of determination, and, if so, whether_determination is against weight of evidence.-People v. Greene (Sup.) 172.

Proceedings on charges against a police officer for violation of rules held illegal.-People v. Partridge (Sup.) 680.

Under Laws 1888, p. 1042, c. 583, tit. 15. § 2, and New York City Charter, §§ 1536, 1543, 1615, the office of water registrar of the city of Brooklyn held to have been abolished.-People v. Oakley (Sup.) 856.

Under New York Charter 1897, § 458, water registrar for the city of Brooklyn held not the head of a bureau within New York City Charter, § 1543.-People v. Oakley (Sup.) 856.

Charges filed against a police captain held to justify the admission of evidence that he had detailed a patrolman to do certain work on houses owned by accused.-People v. Greene (Sup.) 1017.

Under Greater New York Charter, Laws 1901, p. 129, c. 466, § 302, an objection that a judgment of dismissal, rendered against a police officer properly convicted of willful neglect of duty, imposed excessive punishment, held not subject to review by the courts.-People v. Greene (Sup.) 1017.

Facts held to establish that a police captain had been guilty of a flagrant neglect of duty. People v. Greene (Sup.) 1017.

Municipal employé, who without protest accepted reduced salary after first year, could not be heard to claim compensation as fixed for first year.-Grieb v. City of Syracuse (Sup.) 1083.

Where board of estimate created municipal office and included salary for one year in budget, it could in subsequent year reduce such salary by appropriating smaller sum in budget.-Grieb v. City of Syracuse (Sup.) 1083.

Officer of municipality, whose salary is fixed by law, cannot be deprived of that salary so long as he holds the office.-Grieb v. City of Syracuse (Sup.) 1083.

Under city charter, in order to constitute subordinate, appointed by commissioner of public works, a municipal "officer," there must have been an intent on the part of board of estimate and apportionment to create permanent office.Grieb v. City of Syracuse (Sup.) 1083.

2. Property.

A conveyance by a city to a hospital, incorporated under Laws 1848, p. 447, c. 319, and amendments, held not supported by a consideration by the fact that the land will be subject to taxation in the hands of a purchaser from the corporation.-Mt. Sinai Hospital v. Hyman (Sup.) 276.

A grant by a city, under Laws 1898, p. 770, c. 257, and Laws 1900, p. 372, c. 166, of a tract of land to a corporation organized under Laws 1848, p. 477, c. 319, and amendments, to maintain a hospital for a particular nationality and creed, held in violation of Const. art. & § 10.-Mt. Sinai Hospital v. Hyman (Sup.) 276. Under Const. art. 8, §§ 11, 14, a city held prohibited from granting land to a corporation organized under Laws 1848, p. 447, c. 319, and amendments, to maintain a hospital for a particular nationality and creed.-Mt. Sinai Hospital v. Hyman (Šup.) 276.

3. Contracts in general.

Revised New York Charter, Laws 1901, P. 642, c. 466, § 1554, forbidding advertisement for and purchase of patented articles, except under such circumstances that there can be competition, held violated by advertisements for water meters, so framed as to call for patented articles.-Kay v. Monroe (Sup.) 831.

§ 4. Public improvements.

Laws 1903, p. 1396, c. 610, relative to the liability of a town for a change in the grade of a street, held not to have retroactive operation. In re Anderson (Sup.) 24.

Where a landowner was entitled to damages and liable for benefits in street opening proceedings, and the city was liable for interest on the

damages, interest should also be charged against the owner for the unpaid benefits.-In re City of New York (Sup.) 123.

damages assessed in street opening proceedings A demand on the city by a landowner for held insufficient to continue interest after the expiration of six months, under Greater New York Charter, Laws 1901, p. 426, c. 466, § 1001. In re City of New York (Sup.) 123.

A report of commissioners appointed in street opening proceeding, which was void for excess of the commissioners' jurisdiction, could not, on objection, be recommitted for correction.In re Locust Ave. (Sup.) 798; Theall v. Village of Port Chester, Id.

Under Laws 1868, pp. 1869-1877, 1879-1882, c. 818, tit. 5, §§ 1-14, 22-28, commissioners appointed to assess benefits for the opening of a street in the city of Port Chester held without jurisdiction to assess benefits for grading the same.-In re Locust Ave. (Sup.) 798; Theall v. Village of Port Chester, Id.

5. Police power and regulations. A payment for a permit to construct a vault under a sidewalk held not made under duress, but voluntary, and not recoverable.-Wolff v. City of New York (Sup.) 214.

6. Use and regulation of public pla

ces, property, and works.

In suit against city to restrain interference with a lease of a city pier, held no defense that it was used as a dump; there being no covenant in the lease forbidding such use.-New York Contracting & Trucking Co. v. City of New York (Sup.) 100.

Power of dock board of the city of New York over pier and bulkhead lines at the foot of West Seventy-Ninth street, held governed by Laws 1873, p. 507, c. 335, § 88, so that the plan adopted by such board on May 17, 1901, was without authority.-New York Contracting & Trucking Co. v. Čity of New York (Sup.) 100:

Hotel company hold entitled to injunction restraining use of street as public hack stand.— Odell v. Bretney (Sup.) 655.

A municipal corporation has no power to grant rights in the streets, except as such power has been delegated to the municipality by the Legislature.-Rhinehart v. Redfield (Sup.)

789.

Where a city ordinance granting a franchise was void, as beyond the powers of the municipality, the fact that the grantees had complied therewith, etc., held no ground for compelling the city to perform.-Rhinehart v. Redfield (Sup.) 789.

not to authorize the city of Brooklyn to grant Laws 1888, p. 958, c. 583, tit. 2, § 12, held

to certain individuals an exclusive franchise to use the streets for the purpose of laying conduits for the conveyance of ammonia gas used for refrigeration.-Rhinehart v. Redfield (Sup.) 789.

Under New York City Charter, Laws 1901, pp. 346, 355, c. 466, §§ 817, 825, as amended by Laws 1902, p. 1777, c. 609, held, the commissioner of docks has no authority to lease a por

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