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LOCATION.

Liability of restaurant keeper for negligence

of servants, see "Innkeepers."
Of railroads, see “Railroads," $ 1.

Production of books showing amounts paid em-

ployés in action for indemnity insurance, see

*Discovery," $ 1.
LOTTERIES.

Trade unions, see “Trade Unions.”
§ 1. Criminal responsibility.

§ 1. The relation.
Prizes for closest estimates of number of

number of Evidence in an action for salary for a period
cigars on which tax will be paid in a certain after plaintiff's discharge held insufficient to
month held not a distribution by chance, within show a hiring for any definite time.-Lertora v.
Pen. Code, $ 323, defining lotteries.-People v. | Central Fruit Co. (Sup.) 425.
Lavin (Sup.) 776.

On conflicting evidence as to whether serv-

ant's discharge was without cause, and as to
MACHINERY.

whether contract of employment was termi-

nated by mutual consent, the case was for the
Liability of employer for defects, see "Master

jury.-Webb v. Whitesell (Sup.) 454.
and Servant," $ 4.

§ 2. Services and compensation.
Production and use of electricity, see "Elec-

Complaint by servant for wages held to state
tricity."

a cause of action.-Gillespie v. Montgomery

(Sup.) 701.
MAGISTRATES.

Complaint in equitable action by manager of

brokerage business for his agreed compensation
See "Judges," $ 1.

held not demurrable for want of facts, though

the averments seeking equitable relief were in-
MANDAMUS

sufficient.-Gillespie v. Montgomery (Sup.) 701.

Complaint by manager of brokerage business
§ 1. Subjects and purposes of relief.

to recover agreed compensation of a share of
Under Town Law, 8 162 (Laws 1890, p. 1233, the profits held not demurrable for want of
e. 569, as amended by Laws 1897, p. 619, c. | facts.-Gillespie v. Montgomery (Sup.) 701.
481), held, that those having claim against a
town were not entitled to mandamus to compels 3. Master's liability for injuries to
the town board to audit claim.-People v. Mat-

servant.
thies (Sup.) 196.

In an action for negligent death of a serv-

ant, held, that the turning on of steam into a
MANDATE.

tank, the sudden escape of steam from which

caused the death, was not the sole cause of the
See "Mandamus."

accident.-Franck v. American Tartar Co.

(Sup.) 219. .
MANSLAUGHTER.

An employé, when killed by the unjointing,

of a steam reservoir, held not a mere volunteer,
See "Homicide," $ 1.

though he was not engaged in his regular em-
ployment.--Krueger v. Bartholomay Brewing
Co. (Sup.) 1054.

$ 4. - Tools, machinery, appliances,
See “Divorce"; "Husband and Wife.”

and places for work.
Evidence held to show a common-law mar-

A railroad company is liable for the death of
riage.--In re Schmidt (Sur.) 428.

an employé from injuries caused by the de-
fective condition of cars in its use, but belong.

ing to another corporation.-Strauss V. New
MARRIED WOMEN.

York, N. H. & H. R. Co. (Sup.) 67.

There is no rule that a master, after dis-
See “Husband and Wife.”

covery of a defective place, is entitled to a rea-

sonable time to make repairs.-Franck v. Amer-
MARSHALS.

ican Tartar Co. (Sup.) 219.

In an action for the negligent death of a
See "Sheriffs and Constables,” 2.

servant, held, that the jury were warranted in
finding that the master should have known of

the defect which caused the accident some time
MASTER AND SERVANT.

before the accident.-Franck v. American Tar-
See “Work and Labor."

tar Co. (Sup.) 219.
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.

ble therefor.-Holzman v. Katzman (Sup.) 478.
Examination of witnesses in action for personal Employer, who directed servant not to adjust
injuries, see "Witnesses," $ 2.

guards in changing from one class of work to

MARRIAGE.

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. Knitting Co. (Sup.) 911.

Facts held to authorize a finding that an In an action for servant's injuries, evidence employer, whose servant was killed by the held insufficient to show that there was ans de breaking of a timber used in the work, was fect in the appliance which caused the accident. negligent in not making a proper inspection -Hoehn v. Lautz (Sup.) 921. for dry rot.-Meehan v. Atlas Safe Moving &

In an action for servant's injuries, evidence Machinery Truckage Co. (Sup.) 1031.

held to show that the cause of the accident was $ 5. Fellow servants.

the carelessness of the servant in turning too Where a master is negligent, the fact that an

much steam into the drum which he was cleansinjury to a servant was partly due to the neg-1

ing, the head of which was blown off.-Hoehn ligence of a fellow servant does not bar a re

v. Lautz (Sup.) 921. covery against the master.-Strauss V. New To maintain an action under employers' liaYork, x. H. & H. R. Co. (Sup.) 67.

bility act (Laws 1902, p. 1748, c. 600), it is The negligence of a servant, intrusted by the

necessary to show negligence on the part of the master with the duty of inspection, is to be at

employer and absence of contributory negligence tributed to the master.-Franck v. American

on the part of the servant.-Hoehn v. Lautz Tartar Co. (Sup.) 219.

(Sup.) 921.

Under section 2 of Employers' Liability Act $ 6. Risks assumed by servant.

(Laws 1902, p. 1749, c. 600), notice of accident A conductor on a street car, who has knowl- | given by employé's administrator, within 120 edge of the incompetency by reason of intemper days from accident, though after 60 days from ance of the motorman on his car, assumes the appointment of administrator, held in time.risk of working with such motorman.-White v. Hoehn v. Lautz (Sup.) 921. Lewiston & Y. F. Ry. Co. (Sup.) 901.

Whether servant assumed the risk of injury in Risks in operation of machinery, arising from operating planing machine without properly adfailure to comply with Labor Law, Laws 1897, | justing guard held a question for the jury.p. 480, c. 415, § 81, may be assumed by employé. Klein v. Garvey (Sup.) 998. --Sitts v. Waiontha Knitting Co. (Sup.) 911.

Contractor held liable, under Laws 1897, e. Girl, between 15 and 16 years of age, held 415. $ 18, for injury to employé from unsafe qualified to assume the risk of injury from ma

scaffolding.-Williams v. Roblin (Sup.) 1006. chine which she operated.--Sitts V. Waiontha Knitting Co. (Sup.) 911.

Evidence in action for death of an employé

| from unjointing of a steam reservoir held suf$ 7. - Contributory negligence of ficient to take to the jury the question of servant.

the employer's negligence.-Krueger 1. BartholAn employe held not charged with any duty omay Brewing Co. (Sup.) 1054. of inspection, or with negligence in failing to discover dry rot in timber which broke.-Mee Evidence in an action for death of an emhan v. Atlas Safe Moving & Machinery Truck ployé from the parting of a joint of a steam age Co. (Sup.) 1031.

reservoir held insufficient to authorize a holding

as matter of law that deceased assumed the § 8. - Actions,

risk.-Krueger v. Bartholomay Brewing Co. In an action for negligent death of a servant, (Sup.) 1054. held, that the question as to the servant's culpa

Evidence in an action for death of an embility was for the jury.-Franck v. American

" ployé from the parting of a joint of steam Tartar Co. (Sup.) 219.

reservoir held sufficient to authorize a jury to An operator of a corrugating machine held find that deceased was free from contributory not entitled to recover for injuries sustained by negligence.-Krueger V. Bartholomay Brewing the starting of the machine after he had re- Co. (Sup:) 1054. lieved it from paper which had clogged therein, in the absence of proof that he shut off the $ 9. Liabilities for injuries to third power before atternpting to clean the machine.

persons. Carley v. Gair (Sup.) 709.

A truck driver's failure to discover that the In an action for servant's injuries, defendant driver of the preceding truck had left his seat. may avail himself of the defense of assumption

and to use care to ascertain his whereabouts, of risk, though he did not plead it, where plain

heid negligence.-Steinacker v. Hills Bros. Co. tiff's own evidence shows that the risk was as

(Sup.) 33. sumed.-White v. Lewiston & Y. F. Ry.. Co. Duty of shoring a building rests on the con(Sup.) 901.

tractor, as against subcontractors, in the abIn action for injury to child between 14 and

sence of proof to the contrary.-Nelson T. 16 years of age, employed in factory, burden of

Young (Sup.) 69. showing failure to comply with Labor Law, In order to hold contractor responsible for inLaws 1897, p. 477, c. 415, $ 70, held to be on jury to workman on building, there must be an plaintiff.-Sitts v. Waiontha Knitting Co. (Sup.) act of personal negligence causing the accident. 911.

-Nelson v. Young (Sup.) 69. Action for injuries to child between 15 and Statement to building contractor that build16 years of age, employed in factory, held to ing was unsafe held not inadmissible, on the have been brought and tried on the theory that ground that defendant had sublet all the work,

MINORS.

where there was no proof to that effect.-Nel-

MEETINGS.
son v. Young (Sup.) 69.

Certain evidence held admissible to show no- of stockholders, see "Corporations," 8 2.
tice to defendant building contractor of the un-
safe condition of the building.---Nelson v. Young
(Sup.) 69.

MEMORANDA.
A charge as to duty to workmen, resting, on 0! judge as part of judgment, see "Judgment,"
contractor under his contract with owner, held| 8 2.
objectionable as to the effect of the contract on
strangers.-Nelson v. Young (Sup.) 69.

MERGER.
Where defendants' foreman directed workmen
to erect a scaffold for use of independent con-

Of cause of action in judgment, see "Judg-

+ direnm ent." $ 4.
tractors in installing machinery, without direc-
tions as to method, defendants did not furnish

Of contract, see "Contracts,” 8 3.
the scaffold, within Labor Law, Laws 1897, p.
467, c. 415, 8 18.–Wingert v. Krakauer (Sup.)
261.

See “Infants."
Defendants held under no obligation to erect
scaffold for use by independent contractors, em-
ployed to install machinery for piano factory.-

MISREPRESENTATION.
Wingert v. Krakauer (Sup.) 261.

See "Fraud.”
In an action for injuries by being struck by Affecting validity of contract, see “Contracts,"
a wagon driven by defendants' servant, the 81.
rate of speed of the wagon is a matter of evi- | By insured. see "Insurance," $ 5.
dence, and need not be pleaded.-Lachenbruch
v. Cushman (Sup.) 476.
In an action against a master for trespass

MODIFICATION.
committed by a servant, evidence held to show

Of contract, see "Contracts," $ 3.
that the trespass was committed by the servant of
while acting within the general scope of his

of his of judgment or order on appeal, see "Appeal,"
authority, rendering the master liable therefor. |
-Reed v. New York & R. Gas Co. (Sup.) 810.

MONEY RECEIVED.
Recovery of payment in general, see “Pay-

ment," $ 3.
Of evidence in civil actions, see “Evidence,”
§ 2.

MONOPOLIES.
MEASURE OF DAMAGES. § 1. Trusts and other combinations in

restraint of trade.
See “Damages,” $ 3.

Contract for payment of percentages on

freight held not in violation of Rev. St. U. S.
MECHANICS' LIENS.

1890, prohibiting contracts in restraint of trade.

--Ceballos v. Munson S. S. Line (Sup.) 811.
Effect of bankruptcy proceedings, see "Bank-

ruptcy," $ 2.
Statutory discovery, see “Discovery,” s 1.

MORTGAGES.
8 1. Right to lien.

By corporations, see "Corporations," $83, 4.
Where contractor failed to complete building. Of personal property, see "Chattel Mortgages."
mechanics' liens held to attach only to sum due | Transfer of interest in, as payment, see "Pay-
after deducting expense of completing it from

ment," $ 1.
original contract price.-New Jersey Steel & Scope and extent of review in foreclosure case,
Iron Co. v. Robinson (Sup.) 151.

see "Appeal,” $ 5.
Lien Law, Laws 1897, p. 517, c. 418, § 7, 8 1. Requisites and validity.
held to forbid only collusive advance payments. Parties may execute a conveyance with the
-Wolf v. Mendelsohn (Sup.) 465.

intention that title shall become absolute and
A subcontractor held to have no greater right

right of redemption determined on default after
of lien because of false statements of the own-

expiration of time for payment.-Luesenhop v.
er and contractor as to the amount due; she

Einsfeld (Sup.) 268.
having suffered no loss by relying thereon. In determining whether conveyance consti-
Wolf v. Mendelsohn (Sup.) 465.

tutes merely mortgage, the determining consid-
$ 2. Enforcement.

eration is the intent of the parties.-Luesenhop
dence held insufficient to support a finding | v. Einsfeld (Sup.) 268.
as to the amount of work not done when a sub- Where grantee had come into possession and
contractor abandoned the work.-Miller v. Nor- paid for improvements, etc., held, that the gran-
cross (Sup.) 56.

tor could not claim that the instrument was

MATERIALITY.

and 121 New York State Reporter merely a mortgage.-Luesenhop v. Einsfeld, Opening or setting aside default judgment, see (Sup.) 268.

"Judgment," $ 1.

Relating to pleadings, see “Pleading,” $ 6. § 2. Construction and operation.

Mortgages ou a leasehold can have no dura Under Gen. Prac, Rule 37, the court is not tion beyond the term of the lease, and mort bound to grant unlawful relief; but it is incumgagees in possession thereunder can acquire bent on the opposite party, on receiving notice no greater rights by virtue of their possession of a motion, to advise the court that the relief than the lessees.-Miller v. Warren (Sup.) 1011. prayed was unlawful.-People v. Miller (Sup.)

341. 8 3. Assignment of mortgage or debt.

A bond and mortgage may be transferred by MUNICIPAL CORPORATIONS. mere delivery without a technical assignment, provided there is an intention so to transfer See “Towns." accompanying the delivery.-John H. Mahpken

Mandamus, see "Mandamus," $ 1. Co. v. Pelletreau (Sup.) 737.

Municipal courts, see "Courts," $ 3. $ 4. Foreclosure by action.

Ordinances relating to intoxicating liquors, see Though, on the reversal of an order overrul

"Intoxicating Liquors." ing the answer in an action to foreclose, and

| Street railroads, see "Street Railroads." directing judgment, the judgment for plaintiff, § 1. Offlcers, agents, and employés. 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 On the reversal of an order overruling the an- decision.-People v. Partridge (Sup.) 19. swer on foreclosure, and directing judgment, | Greater New York Charter, Laws 1901, pp. appellant held absolutely entitled to the vacation | 109, 111, c. 466. $$ 255, 256. held not to authorof the judgment entered prior thereto.-Hidden ize the corporation counsel to appear for and v. Van Dyke (Sup.) 14.

defend a policeman in an action for willful as In mortgage foreclosure, held, that plaintiff sault on a person arrested by him.-Donahue r. was not entitled to elect a forfeiture for non Keeshan (Sup.) 144. payment of installments of interest.--Schieck v. Rule 445 of police department held to rest in Donohue (Sup.) 206.

police captains a discretion in determining wbat A purchaser of real estate under mortgage are "suspicious places," which must be exerforeclosure will not be compelled to perform cised in regard to evidence.-People v. Greene his contract, where the title depends on ques- (Sup.) 172. tions of fact which must be proved by parol

On certiorari to reriew relator's dismissal evidence.-Huber v. Case (Sup.) 663.

from police force, evidence held insufficient to Where land subject to a life estate was sold show that a house not reported by relator as a under a mortgage which was a first lien there- "suspicious place” was such a place.-People T. on, the purchaser held to have acquired a title | Greene (Sup.) 172. superior to the claims of the life tenant and

On certiorari to review relator's dismissal his creditors, who were made parties to the

from the police force, evidence held insufficient suit, under Code Civ. Proc. $ 1632.--Marshall

to show that a house which relator permitted v. United States Trust Co. (Sup.) 747.

to exist in his district was a house of prostito$ 5. Redemption.

tion.--People v. Greene (Sup.) 172. Agreement between mortgagee and mort Under Code Civ. Proc. § 2140, it is duty of gagor to regard release given by latter as ex- | Appellate Division. on certiorari. to determine tinguishing mortgagor's rights held valid. whether there is any competent evidence in sup Luesenhop v. Einsfeld (Sup.) 268.

I port of determination. and. if so, whether da Release by mortgagor to mortgagee held broad termination is against weight of evidence.-Ped enough to include release of equity.-Luesen- | ple v. Greene (Sup.) 172. hop v. Einsfeld (Sup.) 268.

Proceedings on charges against a police ofThe payment by a mortgagee to a mortgagor ficer for violation of rules held illegal.- People of a sum of money, and asking for a release | v. Partridge (Sup.) 680. from all claims, was not an acquiescence in Under Laws 1888, p. 1042, c. 583. tit. 15, $ the mortgagor's claim to the equity of redemp 2, and New York City Charter, $$ 1536. 1543, tion.-Luesenhop v. Einsfeld (Sup.) 268.

1615, the office of water registrar of the city of Brooklyn held to have been abolished.-People

v. Oakley (Sup.) 856. MOTIONS.

Under New York Charter 1897, § 458, water Arrest of judgment in criminal prosecutions,

registrar for the city of Brooklyn held not the see "Criminal Law," $ 5.

head of a bureau within New York City CharChange of venue in civil actions, see “Venue,"

he in civil actions see “Venue "ter, § 1543.-People v. Oakley (Sup.) $56. $ 1.

Charges filed against a police captain held to Dismissal of action before trial, see "Dismissal justify the admission of evidence that he had and Nonsuit," $ 2.

detailed a patrolman to do certain work on Dismissal or nonsuit on trial, see "Trial," $ 5. houses owned by accused.-People . Greene New trial in civil actions, see "New Trial,” Š 3. 1 (Sup.) 1017.

Under Greater New York Charter, Laws 1901, \ damages, interest should also be charged against . 129, c. 466, § 302, an objection that a judg the owner for the unpaid benefits.-In re City ient of dismissal, rendered against a police of of New York (Sup.) 123. cer properly convicted of willful neglect of

A demand on the city by a landowner for uty, imposed excessive punishment, held not

not damages assessed in street opening proceedings ubject to review by the courts. People v.

held insufficient to continue interest after the freene (Sup.) 1017.

expiration of six months, under Greater New Facts held to establish that a police captain | York Charter, Laws 1901, p. 426, c. 466, $ 1001. ad been guilty of a flagrant neglect of duty. -In re City of New York (Sup.) 123. 'eople v. Greene (Sup.) 1017.

A report of commissioners appointed in street Municipal employé, who without protest ac- opening proceeding, which was void for excess epted reduced salary after first year, could not of the commissioners' jurisdiction, could not, e heard to claim compensation as fixed for | on objection, be recommitted for correction. rst year.-Grieb v. City of Syracuse (Sup.) | In re Locust' Ave. (Sup.) 798; Theall v. Village 083.

of Port Chester, Id. Where board of estimate created municipal | Under Laws 1868, pp. 1869–1877, 1879-1882, ffice and included salary for one year in budget, c. 818, tit. 5, 88 1-14, 22-28, commissioners I could in subsequent year reduce such salary appointed to assess benefits for the opening of y appropriating smaller sum in budget.-Grieb a street in the city of Port Chester held with· City of Syracuse (Sup.) 1083.

out jurisdiction to assess benefits for grading Officer of municipality, whose salary is fixed

the same.-In re Locust Ave. (Sup.) 798; Theall y law, cannot be deprived of that salary so

v. Village of Port Chester, Id. ing as he holds the office.-Grieb v. City of $ 5. Police power and regulations. Syracuse (Sup.) 1083.

A payment for a permit to construct a vault Under city charter, in order to constitute sub- under a sidewalk held not made under duress, rdinate, appointed by commissioner of public but voluntary, and not recoverable.-Wolff v. forks, a municipal "officer," there must have City of New York (Sup.) 214. een an intent on the part of board of estimate

& 6. Use and regulation of public pland apportionment to create permanent office.frieb v. City of Syracuse (Sup.) 1083.

ces, property, and works.

In suit against city to restrain interference 2. Property.

with a lease of a city pier, held no defense that A conveyance by a city to a hospital, incor- it was used as a dump; there being no covenant orated under Laws 1848, p. 447, c. 319, and in the lease forbidding such use. -New York mendments, held not supported by a consider- Contracting & Trucking Co. v. City of New tion by the fact that the land will be sub-York (Sup.) 100. ect to taxation in the hands of a purchaser Power of dock board of the city of New York rom the corporation.-Mt. Sinai Hospital V. | over pier and bulkhead lines at the foot of Iyman (Sup.) 276.

West Seventy-Ninth street, held governed by A grant by a city, under Laws 1898, p. 770, Laws 1873, p. 507, c. 335, $ 88, so that the plan • 257, and Laws 1900, p. 372, c. 166, of a adopted by such board on May 17, 1901, was ract of land to a corporation organized under without authority.--New York Contracting &

aws 1848, p. 477, c. 319, and amendments, to Trucking Co. v. Čity of New York (Sup.) 100: naintain a hospital for a particular nationali

Hotel company hold entitled to injunction rey and creed, held in violation of Const, art. &

straining use of street as public hack stand.10.-Mt. Sinai Hospital v. Hyman (Sup.) 276.

Odell v. Bretney (Sup.) 635. Under Const, art. 8, 88 11, 14, a city held pro A municipal corporation has no power to ibited from granting land to a corporation or

grant rights in the streets, except as such powanized under Laws 1848, p. 447, c. 319, and

er has been delegated to the municipality by mendments, to maintain a hospital for a par

the Legislature.-Rhinehart v. Redfield (Sup.) icular nationality and creed.-Mt. Sinai Hosital v. Hyman (Sup.) 276.

Where a city ordinance granting a franchise 3. Contracts in general.

was void, as beyond the powers of the muRevised New York Charter, LawS 1901, p.

hat the grantees had com42. c. 466, § 1554, forbidding advertisement plied therewith, etc., held no ground for comor and purchase of patented articles, except pelling the city to perform.-Rhinehart v. Rednder such circumstances that there can be

field (Sup.) 789. ompetition, held violated by advertisements for

Laws 1888, p. 958, c. 583, tit. 2, § 12, held Tater meters, so framed as to call for patented

not to authorize the city of Brooklyn to grant rticles.-Kay v. Monroe (Sup.) 831.

to certain individuals an exclusive franchise 4. Public improvements.

to use the streets for the purpose of laying Laws 1903, p. 1396, c. 610, relative to the lia- conduits for the conveyance of ammonia gas ility of a town for a change in the grade of a used for refrigeration.-Rhinehart v. Redfield treet, held not to have retroactive operation. (Sup.) 789. n re Anderson (Sup.) 24.

Under New York City Charter, Laws 1901, pp. Where a landowner was entitled to damages | 346, 375, c. 466, 88 817, 825, as amended by nd liable for benefits in street opening proceed- | Laws 1902, p. 1777, c. 609, held, the commisags, and the city was liable for interest on the sioner of docks has no authority to lease a por

789.

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