LIMITATION OF ACTION— Continued.
his death and at the time when such payments were made, will prevent the Statute of Limitations from running against the note for a period of six years from the time of each payment. HAMLIN v. SMITH
2. Payments made by executors with the consent of all parties in interest on claims barred by the statute.] Where the executors, with the consent of the adult beneficiaries under the will, pay a claim against the estate which was known to all parties to have been barred by the Statute of Limitations, with moneys borrowed for that purpose and give their promissory note to the lender, the money so loaned is not a valid obligation against the estate, but is a valid obligation against the beneficiaries on whose behalf it was borrowed in proportion to the amount which each has received from the estate. Id.
3. Authority of an executor to allow claims which are barred by the stat- ute.] An executor or administrator has no authority to allow or pay a claim barred by the Statute of Limitations, nor will a partial payment by an execu- tor or administrator on a claim so barred revive the demand against the estate. Id.
LOAN SOCIETY:
See ASSOCIATION.
MALICE- In an action for libel. See LIBEL.
MALICIOUS PROSECUTION :
See FALSE IMPRISONMENT.
MANDAMUS-Assessment for tax void for want of jurisdiction—the remedy is by certiorari, not by mandamus.] The proper method of obtaining relief from an assessment for the purpose of taxation which is void for lack of jurisdiction on the part of the assessing officer is by a writ of certiorari, and a writ of mandamus will not be issued for that purpose.
MASTER AND SERVANT - Railroad engine dispatcher required, in addition to the duty of that position, to run a switch engine four or five hours a day-it is within the sphere of his employment - he is not entitled to extra compensation therefor.] In an action brought against a railroad company by an employee thereof to recover compensation for services alleged to have been rendered outside of the sphere of his employment, it appeared that the plaintiff was employed by the defendant in 1882 as an engine dispatcher and that the duties of his position at the time of his employment were the inspection and repair of engines and the running of engines in case of emer- gency; that until June 8, 1898, there was a switch engine located at the plain- tiff's station which was operated by another engineer. Upon this date the plaintiff received an order stating that all trains which came to his station would do their own switching with their regular engines, and that in case the switch engine located at his station was called out to do special work he should operate it. Pursuant to this order, the plaintiff, in connection with his regular work as engine dispatcher, ran the switch engine four or five hours each day from June, 1898, until October, 1899, when he left the defend- ant's employ.
During all this time the plaintiff, who was employed and paid by the month, made no claim at any time for extra compensation by reason of the additional service required of him in running the switch engine.
Held, that the running of the switch engine for four or five hours a day was, as matter of law, so far within the scope of the plaintiff's employ- ment as to negative any implication that he was to receive extra compen- sation for this work;
MASTER AND SERVANT - Continued.
That, as the defendant had the right to discharge the plaintiff at the end of any month, it might change the nature of his employment; that, con- sequently, assuming that the running of the switch engine was outside the scope of the plaintiff's employment, the plaintiff's contract of employment would, at least after the expiration of the first month following the receipt of the order pursuant to which the plaintiff operated the switch engine, be deemed to include that duty.
MATHISON V. N. Y. CENTRAL & H. R. R. R. Co.....
- Injury of a servant through negligence.
MEMORANDUM — In writing required by Statute of Frauds.
MERGER Of oral representations in a writing.] Oral representations as to the character and advantages of a gas engine, made by the vendor of such engine to the vendee thereof, prior to the execution of the written contract of sale and not alluded to when such contract is made, are merged in the contract and cannot be sued upon as collateral oral warranties. VAN PUB. Co. v. WESTINGHOUSE, C., K. & Co.......
MISTAKE - Error in diagram attached to the published notice of a fore- closure sale.] 1. A purchaser at a sale in foreclosure of property situated in the city of New York will not be excused from completing the purchase because, through the unintentional error of a newspaper employee, the diagram attached to the published notice of sale apparently represented the lots sold as larger than they actually were. FRANCIS v. WATKINS....
2. Reformation of a contract-proof required of a mistake.] The ref- ormation of a contract will not be decreed in a case where the evidence merely points to a probability or shows a preponderance of proof in sup- port thereof, but only when there is a plain mistake clearly made out by satisfactory proof.
What evidence given in an action to reform a bond, conditioned for the obtaining of building loans or other loans" by expunging therefrom the words "or other loans on the ground that they were inserted therein "either by a clerical or by a mutual mistake," is insufficient to justify the granting of the relief sought, considered. BURT v. QUACKENBUSH... MONTICELLO AND FALLSBURGH TURNPIKE ROAD COM- - No exemption from toll exists in the case of persons living within one mile or one-half mile of the toll gate.
See MONTICELLO & FALLSBURGH T. R. Co. v. LEROY... MORTGAGE - Foreclosure sale·
-error in the diagram attached to the pub- lished notice of sale - it does not excuse the purchaser from completing it.] 1. Where the notice of the sale in foreclosure, of property situated in the city of New York, correctly describes the property as being certain lots designated upon a specified map filed in the office of the registrar of the city and county of New York, and the plaintiff's attorney, in compliance with rule 15 of the rules for the regulation of Special Terms of the Supreme Court in the first department, requiring a diagram of the property to be published with the notice of the sale, furnishes a correct transcript of the map to the newspaper in which the notice of sale is to be published, the fact that through the unin tentional failure of an employee of the newspaper to accurately reproduce the diagram, the published diagram apparently represents the lots as larger than they actually are, although it correctly states the length of the bound-
ary lines, will not entitle the purchaser at the sale to be relieved from his purchase. FRANCIS . WATKINS...
2.- - Equitable subrogation of one advancing money, used to pay a first mortgage as against another subsisting mortgage on the same premises.] On the sale of a parcel of real estate, the vendor took back a mortgage for a portion of the purchase price and agreed that the vendee might place another mortgage upon the property, which should be a lien prior to that of the purchase-money mortgage. In pursuance of such agreement the vendee did place another mortgage upon the premises and thereafter, for some uudis- closed reason, he paid off the last-mentioned mortgage with money bor rowed for that purpose, obtained a satisfaction piece of the mortgage and executed a new mortgage in the same amount to the person from whom he had borrowed the money.
Held, that the new mortgage constituted a lien prior to that of the pur- chase-money mortgage. PETERS v. MEYER......
3. - Landlord and tenant ·
obligation to the landlord of a mortgagee of the leasehold interest.] A mortgagee of a leasehold interest, who, as the agent of a tenant, collects the rents due from the sub-lessees under an agreement to apply them upon the rent due to the landlord as it matures, is not liable to the landlord under the agency nor as mortgagee in possession, for any rent falling due after, although accruing before, the termination of the agency. IRELAND. UNITED STATES MORTGAGE & T. Co......
4. - An assignment of a mortgage by two of three testamentary trustees. effective only to what extent-neglect of the third trustee to repudiate the trans- action.] An assignment of a mortgage by two of three testamentary trus- tees, the third being enjoined from acting, is effective only to the extent that the trust estate receives the money. The neglect of the third trustee to repudiate the transaction does not enlarge the assignee's rights.
FRITZ v. CITY TRUST CO.....
Negotiable bonds secured by a trust mortgage are to be regarded as notes.] Where a corporation issues a series of negotiable bonds secured by a trust mortgage, the holders of such bonds must, in an action brought to fore- close the mortgage, be regarded as if they were holders of negotiable promis- sory notes. ATLANTIC TRUST Co. v. CRYSTAL WATER Co....
6. Presumption as to consideration — burden of proof in the case of the original bondholders and of their transferees.] As between the original bond- holders and the corporation, the possession of the bonds is sufficient to raise the presumption that the holders have acquired them bona fide for full value and in due course, and if the corporation relies upon the defense that the original bondholders paid no consideration therefor it must introduce evi- dence rebutting the presumption. Id.
7. Action by a trustee.] Where the trustee named in the mortgage is not a mere depositary of the bonds, but is a trustee for the bondholders, it may maintain an action to foreclose the mortgage. In such an action, when the trustee proves the issue of bonds and shows that it is the holder thereof, it is entitled to the presumption which would have obtained had the action been brought by the bondholders themselves.
The trustee, if it wishes to avail itself of the superior equities which sub- sequent transferees of the bonds would have, must show that its cestuis que trustent are not the original bondholders. In the absence of such proof, the corporation is entitled to show that there was no consideration for the execu- tion of the bonds. Id.
Assent of the stockholders to a mortgage.] In determining whether a sufficient number of stockholders of the corporation assented to the execu- tion of the mortgage as required by the statute, the amount of the stock actually issued and owned should be regarded as the amount of the capital stock. Id.
9. Right of denial thereof by the corporation.] The corporation is estopped from attacking the validity of the mortgage on the ground that the necessary consents of the stockholders were not obtained, as long as it retains any property acquired under the mortgage.
Quare, whether such defense would be available to the corporation under any circumstances. Id.
10. Option on default in interest to declare the principal due.] A pro- vision in the mortgage that, in the event of a default continuing for ninety days in the payment of the interest due upon the bonds, the principal of the bonds shall, at the option of the holders of such bonds, become due and pay. able, does not require the exercise of the option by all of the bondholders; it is sufficient that the holders of a large majority of the bonds have elected to exercise the option.
Quare, whether the option is one to be exercised by the trustee of the mortgage and not by the bondholders. Id.
Receiver under a mortgage foreclosure-his rights are superior to those of one appointed in supplementary proceedings — notice of appointment.] The rights of a receiver appointed under a mortgage foreclosure are superior to those of one appointed in supplementary proceedings. The latter is not entitled to notice of the former's appointment. GROVER v. MCNEELY... 575 MOTION AND ORDER — The objection that a proposed amended answer was not served with the motion papers — when not available to the plaintiff. See LESSER v. GILBERT MANUFACTURING CO....
Motion to make a complaint more definite and certain — motion to amend a pleading.
Motion to dismiss on a trial. See TRIAL.
Contract for public work, providing that moneys due thereunder may be retained until any action for damages is settled -a mechanic's lien by a sub-contractor is subject thereto.] 1. In an action brought by sub-contractors to enforce a mechanic's lien filed against money due from the city of New York, as successor of the county of Richmond, under a contract for the construction of a road in the county of Richmond, it appeared that the contract required the contractor to save the county harmless against all suits for damages resulting from negligence or careless- ness in the performance of the work, and provided "that the whole or so much of the moneys due to him under and by virtue of this agreement as shall or may be considered necessary by the Board of Supervisors shall and may be retained by the said party of the first part until all such suits or claims for damages as aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of the Board of Supervisors.”
It further appeared that a claim had been filed against the city of New York for damages resulting from the death of an individual who was killed upon the road in question through the negligence of the city of New York, its officials, servants and agents; that an action had been brought upon this claim, and that such action was still pending; that the moneys due to the contractor were not sufficient to meet the demand, and that the city had refused to make further payments under the contract.
Held, that the city was entitled to refuse to make further payments until the suit had been settled and evidence to that effect furnished;"
That, assuming that the refusal to make payments constituted a breach of the contract entitling the contractor to recover, on quantum meruit, the value of the work done and materials furnished thereunder, the judgment should secure to the city the benefit of the indemnity provisions of the contract, and should require the city to pay over to the plaintiffs only the amount remain- ing due to the contractor after the negligence action had been disposed of. BROWN 2. CITY OF NEW YORK....
Negligence action against the city of Ithaca for injuries resulting from the complaint must allege presentation of a claim therefor.] Under section 8 of title 8 of the charter of the city of Ithaca (Laws of 1888, chap. 212), which provides: "No suit shall be maintained against said city upon any claim or claims, for injuries resulting from negligence, unless the same shall be presented for payment to the common council of said city at some regular meeting thereof and until thirty days after such presentation shall
MUNICIPAL CORPORATION— Continued.
have been made, or unless claim has been made within sixty days and suit begun within twelve months after the claim has been disallowed by the com- mon council," the presentation of the claim to the common council within sixty days after the accident is a condition precedent to a recovery, and a complaint in an action brought against the city to recover damages for injuries resulting from negligence which does not allege such presentation is demurrable. JEWELL v. CITY OF ITHACA.......
3. Construction of the city charter in that respect.] The court, in order to effectuate the intention of the Legislature, will construe the last portion of the section as though it read "nor unless such claim has been made within sixty days and suit begun within twelve months after the claim has been disallowed." Id.
4. What is not an unreasonable limitation of time.] The period of sixty days allowed by the statute in which to present the claim is not an unreasonable limitation such as will, as a matter of law, render the statute void. Id.
Allegation that the claim was duly presented, when insufficient.] An allegation in the complaint in such an action, that the claim was duly pre- sented," has no force when it is coupled with a statement showing that it was presented on a date long after the time fixed by the statute. Id.
6.- An action lies to enforce payment of an assessment.] Section 12 of chapter 162 of the Laws of 1895, an act providing for the construction of a sewerage system in the city of Ithaca, which declares that the assessment shall be made in the manner prescribed by title 6 of the charter of the city of Ithaca (Laws of 1888, chap. 212), authorizes the city, by its reference to title 6 of the charter, to maintain an action against a person assessed for the expense of constructing the sewerage system, to recover the amount of such assessment. CITY OF ITHACA v. BABCOCK..
7. Entire assessment must be roid to defeat recovery.] In such an action the defendant, in order to defeat the city's right to recover, must prove that the entire assessment is void, and every proper presumption will be indulged in in support of the assessment. Id.
8. Foot frontage basis of assessment for a sewer in the city of Ithaca.] Under section 12 of the act of 1895, which provides, "Whenever it shall appear to the commissioners that property in localities through which such system of sewers are constructed is especially benefited thereby, they may report such fact to the common council, who may provide for assessments on such property in the manner prescribed by title six of the charter of the city of Ithaca," and under chapter 197 of the Laws of 1900, which determined the area of assessment and authorized the common council, "to the extent only that the abutting properties have been benefited thereby," to assess a portion of the expense of the improvement upon the abutting property, it was within the judicial discretion of the common council to assess all the property situated within the assessment area at a uniform rate per "foot frontage.' The common council having had the power to adopt such a rule, the fact that the rule operated inequitably in isolated cases is not available as a defense to an action by the city to recover the amount of the assessment. Id.
9. It is the most equitable rule for apportioning the expense.] Semble, that the "foot frontage" rule is the most equitable rule for apportioning the expense of constructing a sewer. Id.
10. Chapter 417 of the Laws of 1895, providing for the riding of police- men and firemen without charge on street railroads, is unconstitutional.] Chap- ter 417 of the Laws of 1895, which authorizes the mayor of any city and the president of any incorporated village to issue to each policeman and fireman a certificate of appointment, and provides that it shall thereupon be the duty of every street surface and elevated railroad company carrying on business within such city or village to transport every such policeman or fireman free of charge while he is traveling in the performance of his duties, is unconsti- tutional, in that it operates to deprive the railroad companies therein men- tioned of property without due process of law.
WILSON . UNITED TRACTION Co........
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