MISJOINDER- Continued.

Held, that the complaint stated but a single cause of action, the grava-
men of which was fraud, the means resorted to for its accomplishment
being but enumerations of the instances and results of the fraud.

MORTGAGE - Mortgages given by a life tenant and by remaindermen -
surplus moneys, arising on a foreclosure thereof the mortgagors' relative inter-
ests therein.] 1. Where the life tenant of certain premises and the two remain-
dermen execute mortgages thereon, which recite that the life tenant and
the remaindermen are indebted to the mortgagee in the sum named in the
mortgages, and it does not appear who received the money obtained upon
the mortgages, nor to what purposes it was applied, the presumption is, as
between the three mortgagors, that they were each liable for one-third of
the debt; and in surplus money proceedings, instituted after the foreclosure
of the mortgages upon a default in the payment of interest, the life tenant
is chargeable with the unpaid taxes, and with one-third of the interest, and
the remaindermen with the other two-thirds of the interest, the costs and
expenses of the foreclosure being deducted from the proceeds of sale before
any division is made. FoSDICK . LYONS.

-

2. Chattel mortgage — right of a second mortgagee to take possession of
the mortgaged chattel as against a first mortgagee.] Where a person in posses-
sion of a watch, and holding a bill of sale thereof given to secure the pay-
ment of fifty dollars, joins with another in executing a chattel mortgage
upon the watch, which mortgage is made subject to the claim for which
he holds the bill of sale, such instrument is, in fact, a second mortgage, or
rather a mortgage upon the equity of redemption, and nothing but the pay-
ment of the fifty dollars can divest the holder of the bill of sale of his title
to and right of possession of the watch. GARRISON . QUICK..

A mortgage taken with intent to defraud creditors — the mortgagee is not
a bona fide purchaser as to a vendor of the mortgaged property from whom the
mortgagor purchased with intent not to pay for it-burden of proof of bona
fides inadequacy of price.

See MOYER . BLOOMINGDALE....

Personal transactions with a decedent—when a predecessor in title may
testify to them—an assignee of a mortgage may not testify that her deceased
assignor, owning three mortgages, stated that hers was a prior lien -a party
liable for a deficiency is incompetent.

See SQUIRE . GREENE..

Contract to pay debts out of the proceeds of sale" of property conveyed
to the promisor liability of the promisor thereunder the fact that a creditor
holds a mortgage to secure his claim is immaterial.

See BRUMME 2. HEROD

-

Written contract to convey property which may be bought in at a foreclos-
construction thereof in disregard of the exact terms of the agreement

ure sale
when equity will not specifically enforce it.
See FINKEL . KOHN....

PAGE.

174

608

93

227

431

558

-

199

Prospective partner — not liable to one advancing money to the enterprise,
nor prevented from enforcing a mortgage on the property with which the business
is conducted.

See MCLEOD v. MINER...

115

Fraudulent conveyance· the grantee estopped to enforce against the prem-
ises a mortgage paid by him, which he seeks to establish as a lien on the land.
See WEISER v. KLING..

266

MORTGAGE - Continued.

Foreign corporation — the statutes of New York are not applicable to its
mortgaging its property or issuing its stock.

See ERNST v. RUTHERFORD & B. S. GAS Co...

PAGE

388

MOTION - For a new trial.

See NEW TRIAL.

MOTION AND ORDER A motion made by a defendant upon the trial of
an action for leare to amend his answer, is addressed to the discretion of the court
-it is properly denied where it appears that the defendant relied upon a mere
quibble.

See RICE v. COUTANT..
Amended complaint

when a defendant will be required to accept it and
to more to strike out such portions thereof as do not conform to the order author-
izing its service.

See LANGE v. HIRSCH.......

543

176

Where a motion to resettle a case is made on a private stenographer's
minutes the order must recite, although the court rejects, them.

See DEUTERMANN. POLLOCK...

493

Amendment of a complaint· - the order must direct its service on a
defendant who is in default.

See PALMER . SALISBURY....

139

-

. JACOB....

Motion for judgment upon an order striking out an answer as frivolous
- when it may be made.
See LEE

531

Examination of a witness before trial- -the order therefor must be a
judge's order.

See WIECHERS v. NEW HOME SEWING MACHINE Co......
Papers which may be used on a motion for a retaxation of costs.
See LYMAN v. YOUNG MEN'S COSMOPOLITAN CLUB. .

1

220

-

Motion its consideration on appeal limited to the grounds stated below.
See SUMMERS v. COLVER..

553

-

MUNICIPAL CORPORATION Registry of coupon bonds of Richmond
Hill after its consolidation in the Greater New York-New York city registered
stock cannot be issued in place thereof.] 1. The holder of coupon bonds, issued
by the late village of Richmond Hill, which were valid outstanding obliga-
tions of that village when, on January 1, 1898, it was consolidated with the
city of New York by the Greater New York charter (Chap. 378 of the Laws of
1897) is not entitled, under section 172 of such charter, to surrender such bonds
to the comptroller of the city of New York, and to receive in exchange there-
for registered stock of the city of New York; he is, however, entitled to have
such coupon bonds converted into registered bonds, which, under the last
clause of that section, is to be effected by the comptroller, by his detaching all
the coupons from the bonds and indorsing thereon the fact of the registration
with a reference to that section.

The fact that section 172 is, in the main, a re-enactment of section 138 of
the Consolidation Act (Laws of 1882, chap. 410) and of section 1 of chapter
199 of the Laws of 1880, under which no right existed to surrender the bonds
referred to therein and to obtain therefor original city stock, and that in
enacting section 172 the Legislature inserted the provision, not contained in
the original act, that the comptroller shall "issue" registered stock or bonds
in place of the coupon bonds, does not evince an intent on the part of the
Legislature to confer any additional rights on the holders of such coupon
bonds, such as exemption from taxation except for State purposes, conferred
on the bonds of the city of New York, or to deprive the city of New York
of the right to contest the validity of the coupon bonds, should they be
found to be invalid. MATTER OF WHANN
339

......

2. City of Brooklyn — an ordinance requiring electric cars to be equipped
with fenders extending to within "not more than three inches from the tracks"
is unreasonable.] An ordinance of the city of Brooklyn requiring electric
cars to be fitted "with a safety fender or safeguard attached to the front

MUNICIPAL CORPORATION - Continued.

platform of said car or cars which shall extend from the platform of said
car or cars to within not more than three inches from the tracks, and to be
made and modeled in such a manner that it will be impossible for any person
or persons to pass under the fender or the platform of said car or cars and
come in contact with the wheels of said car," and imposing a penalty of
twenty-five dollars for its violation, is unreasonable, in view of the fact that
the height of the car from the track varies with the load, and that a car in
motion will oscillate longitudinally and laterally; that the surface of a city
street is not perfectly flat or even over its entire breadth, and that there are
grades of different degrees and curves of varying radii in the city streets, and
that the streets themselves have different degrees of convexity, these facts
rendering it evident that no fender can be attached immovably to the front
platform of a car so that it will, at all times, remain at the required height
above the track and all parts thereof.

3.

PAGE.

Semble, than an ordinance directing that proper fenders be put on all cars
is reasonable and practicable. CITY OF BROOKLYN v. NASSAU EL. R. R. Co. 365
Extent to which land may be taken for a street. The power con-
ferred by the Legislature upon a municipality to take land for street
purposes includes the right to set apart, for the purpose of making the
street ample in width, land which may not be used as a traveled way, and
to embrace within the line of a street a strip of land forming part of a
court yard connected with such street. MATTER OF CURRAN..
82

4. Dedication of a court yard which excludes the right to build upon it.]
Where an owner of premises so appropriated holds title obtained under the
foreclosure of a mortgage thereon, which recites "that whenever the
northerly line of Fourth place is mentioned and referred to in the descrip-
tions contained in the said several mortgages and said deed of conveyance,
the northerly line of Fourth place, as established under the act of May 12,
1846, was intended, and the premises intended to be conveyed, etc., included
within the points thereof, etc., the space fronting on said Fourth place,
reserved and set apart for a court yard under the act of May 12, 1846,'
and a deed of the premises subsequently executed by the mortgagor, con-
veys the premises, together with the land in front of them, "subject, never-
theless, to the provisions, restrictions and reservations" of the above-men-
tioned act, the right of such owner to the use of the strip of land is limited
and controlled by the dedication thereof in the deed and by the reserva-
tion contained in the mortgage, and he has no right to build upon such
strip of land. Id.

-

5. Contract for lighting the town of Jamaica it is void where it is to
be executed only after the consolidation of the town in the Greater New York.]
The town board of the town of Jamaica, which on January 1, 1898, was con-
solidated with the city of New York by chapter 378 of the Laws of 1897,
had no power on the 17th day of December, 1897, to enter into a contract
for lighting a certain district in that town for a period of ten years from
the date of the contract, where it appears that the contract could by no
possibility be of benefit to the town of Jamaica, or to the people of the dis-
trict to be lighted under its provisions, while the town of Jamaica remained
a town.

Such a contract constitutes an attempt to nullify the power granted
to the municipal authorities of the city of New York by section 587 of the
Greater New York charter, to make contracts for the lighting of the con-
solidated city. HENDRICKSON . CITY OF NEW YORK....

6. Notice of the filing of a petition.] Semble, that a notice by the town
board to the effect that it had received the petition for the lighting of the dis-
trict in question is a substantial compliance with the statute (Laws of 1896,
chap. 309. 2, 3), requiring it to publish notice that the petition had been
filed with the town clerk. Id.

7. Power to ordain "fixed penalties" — it requires that a definite sum,
not a sum less than one nor more than another sum, be prescribed.] The char-
ter of the city of Poughkeepsie (Laws of 1896, chap. 425. § 30), authorizing
the common council of that city to enforce observance of its ordinances by

480

PAGE.

610

MUNICIPAL CORPORATION - Continued.

66

ordaining fixed penalties," does not authorize the passage of an ordinance
which imposes as a penalty for its infraction a fine of not less than ten dol-
lars nor more than twenty five dollars, and such an ordinance is invalid.
CITY OF POUGHKEEPSIE v. KING...

City of Yonkers — remoral of an action from a Justice's Court to a City
Court-it is a change of forum, not of venue, and is not prohibited by section
18 of article 3 of the Constitution.

See DORAN . BUSSARD..

-

Mandamus-to compel a water company to furnish a citizen with pure
water at reasonable rates· what allegations are sufficient to authorize the issue
of an alternative writ of mandamus.

See PEOPLE EX REL. BRUSH . N. Y. SUB. WATER Co......
New York city civil service. - a veteran employed in Brooklyn at the time
of the consolidation is not entitled to the same salary when transferred to a posi-
tion in the consolidated city.

See PEOPLE EX REL. SCHUMANN . COLER...

Negligence-injury on a crosswalk on which a channel was worn under
the end of a flagstone where the foot of the injured person was caught — contribu-
tory negligence.

See CUMMINGS v. VILLAGE OF NEW ROCHELLE.

Negligence-duty of a person driving upon a highway to one attempting
to pass hin when he is liable even though no collision takes place.
See BRENNAN . RICHARDSON

30

413

615

583

463

Street paring contract—agreement to put in a sham bid –
based thereon is void as against public policy.

-

a contract

See BAIRD . SHEEHAN.....

7

School teacher removal of, in New York city — it cannot be reviewed by

certiorari.

constitutional.

See PEOPLE EX REL. EVERITT e. HUBBELL.
Municipal Court of New York city — chapter 378 of 1897 creating it is
See IRWIN . METROPOLITAN STREET R. Co.....

194

253

City marshals in New York city—their fees on collecting a personal tax.
See MANHATTAN RAILWAY Co. v. MERGES..
MUNICIPAL COURT- Of New York city-chapter 378 of 1897 creating it
is constitutional.

120

253

See IRWIN . METROPOLITAN STREET R. Co...........

NAME Of a person.

See PERSON.

NECESSARIES — For a wife.

See HUSBAND AND WIFE.

NEGLIGENCE- Proof of the plaintiff's residence in the State of New York
in an action against a foreign corporation for an injury outside of the State.]
1. In an action to recover damages for the death of the plaintiff's intestate.
who was killed by one of the defendant's trains while attempting to drive
across the defendant's railroad in Connecticut, the plaintiff, who removed
from that State to New York only a few days before the commencement of
the action, testified that she removed from Connecticut to Brooklyn because
she thought she might be able to earn a better living, and partly for the pur-
pose of beginning the suit, and made the further statement, "I do not intend
to go back to Connecticut when this suit is completed unless I have a better
position offered me. I think that I shall stay in Brooklyn after this suit is
finished. I have not made up my mind quite about that. I have a very
good position, and I think that I shall probably stay here. I haven't formed
à definite intention in relation to my future residence. In January I came
here with the intention of staying here; living here."

NEGLIGENCE - Continued.

Held, that such testimony was sufficient to sustain a finding that the
plaintiff was a resident of the State of New York at the time of the com-
mencement of the action.

BUMP C. NEW YORK, NEW HAVEN & H. R. R. Co.......

2. Duty of an engineer to stop his train to prevent a probable injury to
one approaching the track.] Where, in such a case, the evidence in behalf of
the plaintiff tends to show that the deceased exercised due precaution in
approaching the track, stopping when at a distance of eighty or ninety feet,
and looking in the direction whence the train was coming, and again stop-
ping when only ten feet from the railroad, and that the deceased then drove
on and was struck by the locomotive, it is proper for the court to charge
upon the request of the plaintiff that "If the engineer saw the deceased
was in danger of being run into when he reached the crossing, provided
the speed of his engine was not checked, it was his duty to do all reasonably
within his power to prevent the disaster by proper efforts to stop his train
as soon as he could," the natural meaning of such instruction being that if
the engineer perceived that the conduct of the deceased rendered a collision
likely to occur should the train keep on, it was incumbent upon the engineer
to make a reasonable effort to stop. Id.

3. Death from falling into a coal hole — contemporaneous statements by
the deceased.] In an action to recover damages resulting from the death of
the plaintiff's intestate, alleged to have been caused by her falling into a coal
hole in the sidewalk in front of the defendant's premises, the negligence
charged was that the coal hole was either open or insecurely covered at the
time of the accident. The only evidence as to the details of the accident
was that given by a woman who accompanied the intestate to the sidewalk,
and who testified that, upon her turning her back toward the intestate, the
latter cried, My God!" and that, upon the witness rushing to her, the
intestate said, “Never mind my head; my leg is in the scuttle hole, and it
is broke." No testimony was given to show that the coal hole was uncov-
ered, or that the cover was not securely fastened at the time of the accident,
and no evidence other than the declaration of the deceased was given to
show that her leg had gone into or was in the hole, the witness before
referred to testifying that she did not look at the hole at the time of the
accident.

Held, that the complaint was properly dismissed;

PAGE.

60

That, while the declaration of the intestate, being descriptive of her con-
dition and situation at the very time she made the statement, and, therefore,
contemporaneous, was admissible as part of the res geste, it was not of itself
sufficient to justify the jury in finding that the leg of the deceased had
gone through the coal hole, and that the coal hole was either open or inse-
curely covered at the time of the accident. PATTERSON . HOCHSTER...... 398
4. Proof required that the coal hole was open or insecure.] Semble, that,
if it had been proved by other evidence that the coal hole was open at the
time of the accident, the declaration of the intestate that her leg was in it
would be sufficient to carry the case to the jury, notwithstanding the fact
that none of those present were able to see that the leg was actually in the
hole. Id.

5.

Collision with a truck bearing the defendant's name — -evidence of
its ownership.] In an action brought against William A. Miles & Co. to
recover damages for personal injuries sustained by the plaintiff in a col-
lision on a city street with a truck, alleged to belong to the defendant and to
have been controlled by its employees, two apparently disinterested wit-
nesses testified that the truck which was concerned in the collision bore the
sign: "Croton Brewery, W. A. Miles & Co., 55, 57 and 59 Chrystie street,'
the location of the defendant's brewery; and the defendant's secretary testi-
fied that, on the day of the accident, two men, of whose names he made a
memorandum, came into the brewery and notified him of the occurrence of
an accident on the street in question.

The four drivers, who the secretary testified were the only ones employed
by the defendant on the day of the accident, each denied the occurrence of
87

Arp. Div.-VOL. XXXVIII.