also, "Counties"; "Schools and School Dis-
ts"; "Street Railroads"; "Towns."
1 option election, see "Intoxicating Liquors."
lamus, see "Mandamus," § 1.
ider Laws 1870, c. 291, as amended by
s 1879, c. 59, a second election to deter-
incorporation is based on the order of
judge and the statutory notice.-People v.
lecker (Sup.) 768.
left without any power or duty on January 1,
1898.-People v. Feitnor (Sup.) 1094.
Greater New York Charter, § 419, requiring
competitive bids for supplies, does not apply to
contracts for furnishing water to the munici-
pality.-Gleason v. Dalton (Sup.) 337.
§ 4. Contracts in general.
Statutes requiring contracts for municipal sup-
plies to be founded on sealed bids held not to
apply where the subject-matter is such that
competitive proposals are unavailing to effect the
desired result.-Gleason v. Dalton (Sup.) 337.
§ 5. Public improvements.
ader Laws 1892, c. 194, a certificate of the
ity clerk as to the manner of calling an
tion to determine as to the incorporation
village held conclusive as to everything ex-
jurisdictional defects.-People v. Snedeck-ing a street effective, the same formalities must
Sup.) 768.
. Officers, agents, and employés.
proceeding retiring a member of the fire de-
ment and placing his name on the pension
held not a proceeding for "removal."-Peo-
v. Bryant (Sup.) 119.
fireman retired after determination that he
3 permanently disabled held not entitled to re-
atement because he had recovered.-People
Bryant (Sup.) 119.
finding by a retiring board that a fireman is
competent physically held not to warrant
cing his name on the pension roll as perma-
atly disabled.-People v. Bryant (Sup.) 119.
Evidence held to show city recorder guilty of
lfeasance. In re Odell (Sup.) 122.
Provision of Greater New York Charter, §
73, that certain employés shall be retained in
ice until expiration of their term, held not to
otect such employés in former justice court of
ooklyn as held offices under Laws 1888, c.
3, tit. 21, § 14.-In re Goodwin (Sup.) 355.
The commissioners of charities of the city of
ew York have no corporate existence, and
nnot be sued as a body.-Heard v. Commis-
ners of Charities of City of New York (Sup.)
5.
Under the New York City charter, a fire mar-
al of the city of Brooklyn held to have no right
the office of fire marshal of the city of New
ork for the boroughs of Brooklyn and Queens.
People v. Gray (Sup.) 1087.
New York City charter relating to discharged
eterans does not vest persons holding office
ith the right to any particular office, but only
e right to appointment thereto.-People v.
ray (Sup.) 1087.
Greater New York charter (section 95) does
ot render it necessary for the mayor to give
otice to remove officials whose functions have
xpired.-People v. Feitnor (Sup.) 1094.
Greater New York charter (section 888), re-
uiring the apportionment of the new deputy
x commissioners to the several boroughs, did
of limit the duties of such officers to the bor-
ughs from which they were selected.-People
. Feitnor (Sup.) 1094.
Under the Greater New York charter, the
oard of assessors of the city of Brooklyn were
In order to make rescission of resolution clos-
be observed as are required to open a street in
the first instance.-Schafhaus v. City of New
York (Sup.) 114.
tinued proceedings for the extension of a street,
Where the trustees of a village have discon-
they cannot restore them as against persons who
in the meantime have acquired rights.-Village
of Herkimer v. New York Cent. & H. R. R. Co.
(Sup.) 390.
Assessments held not subject to collateral at
tack for errors in estimating the amount there-
of.-McKee Land & Improvement Co. v. Swike-
hard (Sup.) 399.
Assessments for sewerage held not unequal.-
McKee Land & Improvement Co. v. Swikehard
(Sup.) 399.
Improper remarks of commissioner to assess
property for sewerage purposes held not preju-
dicial to the owner of such property.-McKee
Land & Improvement Co. v. Swikehard (Sup.)
399.
A theory as to the manner of assessing differ-
ent properties for the construction of a trunk
sewer held not unfair.-McKee Land & Improve-
ment Co. v. Swikehard (Sup.) 399.
Unoccupied city lots may be assessed for the
construction of a trunk sewer, though not on
the direct route of such sewer, and the benefits
are speculative.-McKee Land & Improvement
Co. v. Swikehard (Sup.) 399.
Assessment on certain property must be con-
sidered on its own merits, and not according to
another assessment.-McKee Land & Improve-
ment Co. v. Swikehard (Sup.) 399.
Application by commissioners of estimate and
assessment for extra allowance must be made
when costs are taxed, and after publication of
notice and filing of bill of costs. In re City of
New York (Sup.) 470.
Under Laws 1870, c. 519, tit. 6. §§ 2, 3, as
amended, where the assessors attempt to de-
fine an assessment district by adopting a map
prepared in the office of the city engineer, the
district is invalid, since their authority cannot
be delegated.-Providence Retreat v. City of
Buffalo (Sup.) 654.
Where an assessment is sought to be review
ed for jurisdictional defects, an action to re-
strain its collection may be maintained.-
and 85 New York State Reporter.
Providence Retreat v. City of Buffalo (Sup.) | time.-Johnson v. City of Poughkeepsie (Sup
654.
Under Laws 1870, c. 519, tit. 6, §§ 2, 3, as
amended by Laws 1875, c. 407, the assessors,
and not the common council, are the persons to
determine the district of assessment for local
improvements.-Providence Retreat v. City of
Buffalo (Sup.) 654.
Assessments for public improvements are pre-
sumed to be regular.-Providence Retreat v.
City of Buffalo (Sup.) 654.
Under Schenectady City Charter, the coun-
cil cannot adopt an ordinance for any other
kind of pavement than that designated in the
petition.-Conde v. City of Schenectady (Sup.)
Laws 1862, c. 385, tit. 7, § 72, as amended,
held not to ratify special assessment proceed-
ings that are without jurisdiction.-Conde v.
City of Schenectady (Sup.) 854.
An appeal to the county court from an order
apportioning the expense of a sewer is not a
collateral attack, and hence error of judgment
on the part of the assessor can be reviewed.
In re Klock (Sup.) 897.
The court is not concluded by a report of sewer
commissioners that the expense was apportioned
according to the benefits.-In re Klock (Sup.)
897.
Under Laws 1897, c. 414, § 268, relating to
sewer assessments, the proper method of assess-
ment is to place a valuation on each parcel of
land, and establish the relation between such
values and the cost of the improvement.-In re
Klock (Sup.) 897.
Omitting any portion of property within the as-
sessment district from assessment invalidates the
apportionment.-In re Klock (Sup.) 897.
When the statute provides for an apportion-
ment according to the benefits, an apportionment
by the front foot is invalid.-In re Klock (Sup.)
Where a dangerous hole is permitted to exis
in a public street, the fact that snow lying
the street combines with it to cause the acc
dent does not relieve the city from liability.-
Lehmann v. City of Brooklyn (Sup.) 524.
Obstruction in street held not the proximate
cause of the accident by which plaintiff's intes
tate was killed.-Storey v. City of New York
(Sup.) 580.
Evidence in action to recover damages for
injuries through defect in sidewalk held to su
tain verdict for plaintiff.-Lichtenstein v. City
of New York (Sup.) 642.
Evidence held insufficient to justify verdict
that injury to plaintiff by ice on the street wa
caused by negligence of defendant city. -
O'Keefe v. City of New York (Sup.) 710.
That a city assents to, without authorizing.
practice of riding bicycles on sidewalk, does
not render it liable for an injury resulting
therefrom to a pedestrian.-Howard v. City of
Brooklyn (Sup.) 1058.
City's liability to pedestrian injured by a hi-
cyclist riding on sidewalk cannot be predicate:
on failure to forbid such use of sidewalk.-How-
ard v. City of Brooklyn (Sup.) 1058.
Exemption of former city of Brooklyn, under
Laws 1888, c. 583, tit. 22, § 28, from liability
for torts of officers of the department of parks.
was limited to cases where a plain duty de
volved on the officer.-Howard v. City of Brook-
lyn (Sup.) 1058.
§ 9. Fiscal management, public debt, se-
curities, and taxation.
Contract for sale of bonds by city construed.
and held, that the purchaser could not recover
accrued interest paid on the bonds to the time
of delivery.-Edward C. Jones Co. v. Board of
Education of City of Mt. Vernon (Sup.) 950.
§ 10. Actions.
Notice of personal injuries, served on the city
of New York, under Laws 1883, c. 572, must
Roch-state an intent to commence an action.-Sheehy
v. City of New York (Sup.) 519.
§ 6. Police power and regulations.
Ordinance regulating billboards in city held a
valid exercise of police power.-City of
ester v. West (Sup.) 482.
City charter of Rochester held to give city
power to regulate the business of bill posting.-
City of Rochester v. West (Sup.) 482.
§ 7. Use and regulation of public prop-
erty.
Trustees of Brooklyn bridge, having exclusive
control thereof, held authorized to confer privi-
lege of maintaining pneumatic tubes across the
bridge.-New York Mail & Newspaper Transp.
Co. v. Shea (Sup.) 563.
MUTUAL AID SOCIETIES.
See "Beneficial Associations."
MUTUAL BENEFIT INSURANCE
See "Insurance," § 6.
NATIONAL BANKS.
A corporation authorized by its charter to See "Banks and Banking," § 4.
construct pneumatic tubes between New York
and Brooklyn held not authorized to lay tubes
along the bridge without further authority
from officers in control.-New York Mail &
Newspaper Transp. Co. v. Shea (Sup.) 563.
§ 8. Torts.
Notice to a police officer of obstructions in a
street is notice to the city after reasonable
See, also, "Public Lands."
§ 1. Rights of public.
Where title to land under water where a
bridge is constructed is in a town, which assent-
ed to the construction of the bridge, the erec-
tion does not constitute purpresture.-People v.
Jessup (Sup.) 228.
Owner of adjacent upland or soil under a
navigable stream held not authorized to ob-
struct it with a bridge.-People v. Jessup (Sup.)
228.
Distinction between waters navigable in law
and those navigable in fact held not to affect
the public right of navigation.-People v. Jes-
sup (Sup.) 228.
2. Lands under water.
Right of riparian owners, where the land
under water of a navigable river is divided
between adjacent owners, determined.-People
v. Woodruff (Sup.) 515.
Land under waters of navigable rivers should
be apportioned between adjacent owners in
proportion to their frontage on the main chan-
nel in a practically straight line.-People v.
Woodruff (Sup.) 515.
§3. Riparian and littoral rights.
Riparian owner on navigable river has a right
of access from the front of his lot, and the
right to build a landing.-People v. Woodruff
(Sup.) 515.
NAVIGATION.
See "Navigable Waters," § 1.
NEGLIGENCE.
Causing death, see "Death," § 2.
By particular classes of parties.
See "Carriers," §§ 1. 2; "Master and Servant,"
§ 2; "Municipal Corporations," § 8; "Rail-
roads," § 1.
Condition or use of particular species of proper-
ty, works, or machinery.
See "Landlord and Tenant," § 3; "Railroads,"
§ 1; "Street Railroads," § 2.
Contributory negligence.
Of passengers, see "Carriers," § 2.
Of servant, see "Master and Servant," § 2.
1. Acts or omissions constituting neg-
ligence.
An occupant of business premises, who invites
another to enter for purpose of business, must
use reasonable care so as not to expose him to
unnecessary danger.-Wilson v. Olano (Sup.) 109.
Where a warehouseman was delivering to em-
ployés of a truckman, of whom plaintiff was
one, goods on storage, and directed them to carry
certain goods to a particular room in the build-
ng, such employés were not mere licensees on
the premises.-Wilson v. Olano (Sup.) 109.
A city held not liable for injuries to a licensee
by defect in machinery which it had not con-
Fracted to furnish, and in regard to which it
had not assumed any duty.-Carroll v. City of
New York (Sup.) 620.
The bursting of a fly wheel purchased from
manufacturers, and used for two years, held not
51 N.Y.S.-75
prima facie evidence of negligence.-Piehl v.
Albany Ry. (Sup.) 755.
Liability of abutting owner to pedestrian in-
jured by his obstruction of a sidewalk deter-
mined.-Linehen v. Western Electric Co. (Sup.)
1080.
§ 2. Contributory negligence.
A gratuitous passenger, riding with owner of
vehicle, taking no part in the management, held
not chargeable with driver's negligence because
he suggested the route to be taken.-Zimmer-
mann v. Union Ry. Co. of New York City
(Sup.) 1.
In action for injuries received by escaping
steam from an exhaust pipe, held, that question
whether the drip valve for the pipe had been left
open was for the jury.-Lipp v. Otis Bros. & Co.
(Sup.) 13.
In an action for negligence against several de-
fendants, one of them cannot object to dismissal
of complaint as to others.-Lipp v. Otis Bros.
& Co. (Sup.) 13.
Absence of contributory negligence may be
shown from the facts and circumstances.-Dillon
v. Forty-Second St., M. & St. N. A. R. Co.
(Sup.) 145.
Where plaintiff attending an auction is in-
jured by negligence of a third person, the party
holding the auction is not liable.-Gerlan v.
Cooke (Sup.) 361.
Complaint in action for injuries by flooding
plaintiff's premises held sufficient to permit evi-
dence of daily expense in the conduct of his
business on the premises.-Miller v. Benoit
(Sup.) 368.
In action by tenant of lower floor against ten-
ant of upper floor for injuries by flooding prem-
ises, evidence of promise by plaintiff to turn off
the water at night held inadmissible as without
consideration.-Miller v. Benoit (Sup.) 368.
In action by tenant of first floor against ten-
ant of upper floor for damages by an overflow
of water, held, plaintiff could introduce the
lease in evidence to show his duty as to turning
the water off.-Miller v. Benoit (Sup.) 368.
Evidence in action to recover for injuries to
an infant by falling from a ladder at the lower
end of a fire escape on defendant's building con-
sidered, and held to impose no liability on de-
fendant.-Kelly v. Smith (Sup.) 413.
Owner of building held not liable for injuries
caused by its fall.-Thornton v. Lennon (Sup.)
433.
A watchman employed to look after a building
in course of construction, knowing of danger
from bricks falling into the street, held guilty
of contributory negligence when injured by the
fall of the brick.-Neumeister v. Eggers (Sup.)
481.
In an action for the death of plaintiff's intes-
tate, caused by the bursting of a fly wheel,
certain evidence held too meager to permit the
inference that the accident was caused by a
defective engine.-Piehl v. Albany Ry. (Sup.)
755.
and 85 New York State Reporter.
Evidence introduced to show that the mainte- The fact that lightning exploded a powder
nance of a fly wheel which caused the death of magazine is no defense to an action for result-
plaintiff's intestate was a nuisance must re- ing injuries, if it is proven to have been a
late to the construction or maintenance of such | nuisance.-Prussak v. Hutton (Sup.) 761.
fly wheel.-Piehl v. Albany Ry. (Sup.) 755.
Evidence in action for injuries to child in
street held to warrant verdict for plaintiff.-
Schaffer v. Baker Transfer Co. (Sup.) 1992.
Evidence held insufficient to show, as a mat-
ter of law, that child in the street was guilty
of contributory negligence.-Schaffer v. Baker
Transfer Co. (Sup.) 1092.
NEGOTIABLE INSTRUMENTS.
See "Bills and Notes."
NEWLY-DISCOVERED EVIDENCE.
Ground for new trial in civil actions, see "New
Trial," § 1.
Residents near a powder magazine, who lived
in a house built before, and occupied after,
the magazine was built, do not assume the risk
of an explosion.-Prussak v. Hutton (Sup.) 761.
§ 2. Public nuisances.
In an action to enjoin surface railroad from
maintaining on the highway a nuisance, held.
that the facts warranted a finding of special
injury to plaintiff.-Eldert v. Long Island Elec-
tric Ry. Co. (Sup.) 186.
A wall and an iron structure erected in the
middle of a highway by a surface railroad. to
connect its tracks with an elevated railroad,
without any competent authority, is a nuisance.
-Eldert v. Long Island Electric Ry. Co. (Sup))
186.
An unauthorized bridge over a navigable
stream is a nuisance.-People v. Jessup (Sup)
228.
Opening or vacating judgment, see "Judgment," sance, rendering defendant liable for injuries
A new trial will not be granted on the ground
of newly-discovered evidence which is merely
cumulative.-Piehl v. Albany Ry. (Sup.) 755.
§ 2. Proceedings to procure new trial.
Affidavit of jurors held inadmissible to im-
peach the verdict.-Dean v. City of New York
(Sup.) 586.
NEXT OF KIN.
See "Descent and Distribution."
Before trial, see "Dismissal and Nonsuit."
On trial, see "Trial," § 5.
Promissory notes, see "Bills and Notes."
Obstructing sidewalk by platform held a nui-
thereby caused to passer-by.-Murphy v. Læg-
gett (Sup.) 472.
OBSTRUCTION.
Of highways, see "Highways," § 3.
Of proof, see "Trial," § 4.
OFFICERS.
See, also, "Judges"; "Justices of the Peace";
"Receivers"; "Sheriffs and Constables."
Corporate officers, see "Corporations," §§ 3, 4.
Highway officers, see "Highways," § 2.
Municipal officers, see Municipal Corporations,"
§§ 2, 8.
§ 1. Title to and possession of office.
In action to try title, it is sufficient for de-
fendant to show prima facie title.-People v.
Gray (Sup.) 1087.
Judgment, see "Judgment," §§ 2, 4.
OPINION EVIDENCE.
Complaint in action for maintaining nuisance In civil actions, see "Evidence," § 8.
by an obstruction in a sidewalk held not to state
a cause of action.-Ennis v. Myers (Sup.) 550.
Whether or not a powder storehouse is a nui-
sance is a question for the jury, in an action Of courts, see "Courts," § 1.
involving that question.-Prussak v. Hutton
(Sup.) 761.
Certain persons held liable for injuries from
an explosion of a powder storehouse, should it
be found a nuisance.-Prussak v. Hutton (Sup.)
761.
See "Bills and Notes."
Appealability, see "Appeal."
Of court, see "Motions."
In action against a mining corporation by
stockholders to restrain sale of land to third
Municipal ordinances, see "Municipal Corpora-person, held that, where he had made an offer,
tions," $$ 5, 6.
A pardon of a convict is not a determination
that the conviction was erroneous, nor does it
give him a right to sue the state or others for
false imprisonment.-Roberts v. State (Sup.)
691.
PARENT AND CHILD.
See "Guardian and Ward"; "Infants."
PAROL EVIDENCE.
In civil actions, see "Evidence," § 7.
PARTICULARS.
Bill of, see "Pleading," § 6.
Admissions as evidence, see "Evidence," § 4.
Character ground of jurisdiction, see Appeal,"
§ 1.
Death ground for abatement, see "Abatement and
Revival."
Foreclosure, see "Mortgages," § 6.
Interpleading, see "Interpleader."
Joint interests, see "Joint Adventures."
On appeal, see "Appeal," § 3.
Persons affected by estoppel, see "Estoppel." § 1.
concluded by judgment, see "Judgment," § 7.
§ 1. Plaintiffs.
Where a lease is made by one as "agent" for
lessors, held, that he was trustee of an express
trust, and authorized to sue thereon.-Melcher
v. Kreiser (Sup.) 249.
Where a lease under seal was made by plain-
tiff personally, by description of agent, held,
that he, and not his principal, was entitled to
sue thereon.-Melcher v. Kreiser (Sup.) 249.
§ 2. Defendants.
To permit joining of several defendants, where
a money judgment is asked, it is necessary, un-
der Code Civ. Proc. § 484, that each defendant
should have an interest in the subject of the
action or a fund out of which judgment must be
derived.-Harris v. Elliott (Sup.) 1012.
§ 3. New parties and change of parties.
Defendant held entitled to have the sheriff
and attaching creditors of the fund in his
hands substituted as defendants, under Code
Civ. Proc. c. 820.-American Trust & Savings
Bank v. Thalheimer (Sup.) 813.
Code Civ. Proc. § 452, authorizing the bring-
ing in of parties defendant, applies only to eq-
uitable actions, and hence not to an action for
money had and received.-American Trust &
Savings Bank v. Thalheimer (Sup.) 813.
but had not acquired any enforceable right, he
was not entitled to intervene.-Lewisohn v. An-
aconda Copper Min. Co. (Sup.) 1089.
§ 1. Actions for partition.
Tenants in common of land not specifically
devised by will held entitled to partition, though
executors have power under the will to sell the
same.-Wood v. Hubbard (Sup.) 526.
Plaintiff in partition given a judgment held
entitled to costs.-Wood v. Hubbard (Sup.) 526.
PARTNERSHIP.
See, also, "Joint Adventures."
§ 1. Rights and liabilities as to third
persons.
1 Rev. St. p. 766, § 20, does not preclude a
creditor of an insolvent partnership from as-
serting a lien against the assets of the firm for
his exclusive benefit.-Stiefel v. Berlin (Sup.)
147.
A firm note given by a partner with knowl-
edge of the payee that it was to raise money to
replace funds embezzled by him held not en-
forceable against the co-partners, though the em-
bezzled funds were used for partnership pur-
poses, where co-partners had no knowledge of
such application.-Van Voorhis v. Brown (Sup.)
440.
§ 2. Dissolution, settlement,
In action to recover for loan made to firm
after retirement of one member, held, that
plaintiff's former transactions with the firm en-
titled her to notice of dissolution, in order to
relieve retiring partner.-Knapp v. Knapp (Sup.)
Evidence held to entitle plaintiffs to rescind
contract giving their co-partner an option to
purchase their interest.-Brown v. Dennison
(Sup.) 300.
In action by partner against his co-partner to
and for accounting, defendant can set up as a
rescind agreement as to purchase of business
counterclaim plaintiff's breach of duty as part-
ner.-Brown v. Dennison (Sup.) 300.
Within statute of limitations, see "Limitation of
Actions," § 2.
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