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;

PAGE

601

45

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.

See NEGLIGENCE.

MECHANIC'S LIEN:

See LIEN.

MEMORANDUM — In writing required by Statute of Frauds.

See 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.

PANY

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-

PAGE.

254

121

15

547

241

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.

5.

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.

PAGE

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.

8.

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.

15

585

95

532

539

MORTGAGE - Continued.

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.

11.

-

PAGE

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.

147

See PLEADING.

Motion to dismiss on a trial.
See TRIAL.

MUNICIPAL CORPORATION

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....

2.

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

420

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.......

--

PAGE.

...... 220

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.

5.

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........

260

233