enters into or continues in the employment, without objection or complaint, he is deemed to assume the risk of the danger thus known or discoverable. Schwartz v. Cornell et al. (Sup. Ct.), 646.

11. In an action for unjust discharge by an employer, where the answer sets forth specific acts of misconduct and unfaithful services on the part of the servant, the employer cannot be allowed to prove other acts of similar character not alleged in the answer. Linton v. Unexcelled Fireworks Co.

(Ct. App.), 694.

12. The law will not assume that a servant has been derelict in duty from the fact that his master discharged him, but upon proof that he was discharged while engaged in the performance of the contract, and before his term of service had expired, the burden is cast upon the employer of proving, and hence of alleging in his answer the justification of the dismissal. Id.

13. Plaintiff, who had had experience as a longshoreman, was injured by the slipping of some drums of soda, weighing 600 pounds each, which he was bringing down an inclined gangway upon a platform truck from defendant's vessel. Some wedges which had been placed in front of the drums and also of the wheels of the truck slipped and caused the drum to slip forward. Held, as this manner of unloading had been safely practiced for years and no defects were shown in the truck or gangway, plaintiff could not recover. McCampbell v. Cunard S. S. Co. (N. Y. C. P.),

852.

14. The platform truck being a simple construction and reasonably safe, the defendant was not bound to furnish another style or to instruct plaintiff in the use of this one before allowing him to use it. Id.

15. The stevedore in charge of the unloading directed plaintiff and other workmen who were with him to leave upon the drums the sling with which they had been raised out of the hold until they (the workmen) had removed the drums to the wharf. They did not do this. Had they done so the accident probably would not have occurred. Held, that defendant was not liable for their failure to do so. Id.

See BILL OF PARTICULARS, 1; EVIDENCE, 16; FRAUD, 3; NEGLIGENCE, 23; NEW TRIAL, 2.

MECHANICS' LIEN.

1. B. & P. leased buildings of M., then owner, and put in them boilers, etc., purchased of plaintiff. The latter filed a mechanic's lien against the interest of B. & P. The lease and premises were abandoned by B. & P. In an action to foreclose the lien plaintiff obtained an injunction forbidding M., pending the action, to use the boilers which remained on the premises. Held, that the injunction could not be sustained. Chamberlin v. McCarthy (Sup. Ct.), 61.

2. Under the statute the lien is only upon the person's interest in the land. If the boilers were removable by the tenant they were no part of the land; if they were part of the land the landlord had a right to re-enter and plaintiff could not abridge the owner's use of his own land. Id.

3. An order continuing a mechanics' lien filed under the act of 1885, which prescribes no limit of time, continues such lien until the order is vacated or the lien is disposed of in one of the other manners provided for by the statute. Successive orders of continuance are not necessary. Bigelow v. Doying et al. (Sup. Ct.), 636.

See MORTGAGE, 7.

MONEY HAD.

A day or two after intestate's death defendant drew money from his bank account on checks drawn by him. The estate is insolvent. The checks bore different dates, but defendant states that she received them from her sister at one time, but does not say whether before or after intestate's death, and plaintiff testifies that defendant claimed to have no money to meet funeral expenses with. Held, that although defendant claimed that intestate was indebted to her, the question whether the checks were de

livered to her for value was one for the jury, and that a dismissal of the complaint was error. McMurray v. Ennis (City Ct. B’klyn), 93.

See PARTNERSHIP, 1, 2.

MONEY LOANED.

Sce REFERENCE, 1.

MORTGAGE.

1. In 1868 Phoebe T. Drew and husband mortgaged property in New Jersey to plaintiff for $4,000. In 1869 they conveyed the premises to John Gregg, and in 1870 Gregg and wife conveyed to Helen E. Aitkin, she assuming in the deed the payment of the mortgage, and remaining in possession until 1873 when she sold to Rathbone who also assumed the mortgage, and Mrs. Aitkin moved to New York and died there in 1875, leaving a will in which her husband was named as executor. The mortgage being foreclosed in September, 1880, resulted in a deficiency, and in September, 1888, defendant Aitkin procured from Gregg, who was insolvent, a release from the covenant of assumption in the deed to Mrs. Aitkin, and upon this action being brought upon such covenant set up among other things said release. Held, that the release did not discharge defendant from the covenant of assumption made by his wife, either under the law of this state or that of New Jersey, as the covenant had come to the attention of plaintiff and been adopted by it, and that plaintiff might recover in this action the money still due on the mortgage. New York Life Ins. Co. v. Aitkin (Ct. App.), 8.

2. An action at law may be maintained upon such a contract. Id.

3. The release being set up in the answer, but not as a counterclaim, it was not necessary for plaintiff to reply, and it was entitled to meet the answer by any competent evidence to defeat or avoid its allegations. Id.

4. Section 1628 of the Code Civ. Pro., requiring leave of the court to bring an action to recover part of the mortgage debt after final judgment, has reference solely to a foreclosure conducted in this state, and the leave must be obtained in this state. Id.

5. In an action of foreclosure where the mortgagee was dead and receipts had not always been taken by the mortgagors for payments made, there was positive testimony that deceased had stated, in order to reduce his taxes, that the mortgages were "pretty much all paid” and in August, 1885, for the same purpose he stated under oath that the "Foley boys had paid their mortgage off to $500," etc. Held, that the referee appointed to compute the amount due had the right to believe and find as a fact that that sum represented all that was then due the deceased. Whitman v. Foley et al. (Ct. App.), 133.

6. In an action to recover possession of certain bonds and mortgages claimed by plaintiff to have been assigned to him by one H. and withheld from him by defendant, who had obtained possession of them, defendant denied plaintiff's ownership and alleged that before the assignor's death they were in defendant's possession as agent and since as executor. Plaintiff required the production of the instruments on the trial and offered them in evidence, but gave no evidence as to a delivery. Held, insufficient to show a transfer of title; that delivery would not be presumed from the fact that defendant was a subscribing witness to the assignment, and that in the absence of proof of the circumstances attending the execution of the assignments or of a delivery plaintiff was properly nonsuited. Weed v. Hewlett (Sup. Ct ), 201.

7. Plaintiffs made a builder's loan secured by mortgage, and had advanced a large amount thereof when defendant filed a mechanic's lien. Thereupon an arrangement was made by which plaintiffs were to accept orders in defendant's favor payable when the mortgagors were entitled to certain instalments, and the mechanics' lien was to be postponed to the payment of such acceptances. A subsequent agreement was made for further advances to be made by plaintiffs for certain specified work, which provided that defendant's lien should be paid out of the latter advances and the lien N. Y. STATE REP., VOL. XXXVI. 134

be subordinated to the entire amount of the mortgage. The entire amount of the first mortgage was advanced, but the mortgagors never became entitled to the instalments mentioned in the agreement. Held, that plaintiffs' mortgage was entitled to priority over the lien of defendant. Lipman et al. v. Jackson Architectural Iron Works (N Y. C. P.), 743.

8. Where the mortgagee has assigned the mortgage in whole or in part as collateral security he cannot, without the authority or concurrence of the assignee, exercise an option provided for in the mortgage of declaring the whole sum due by reason of a default in the payment of taxes. Shaw v. Wellman et al. (Sup. Ct.), 1002.

9. When indemnity to the mortgagee can be secured in that manner, a court of equity will consider the default redeemed by a subsequent payment of such taxes, and will not enforce the forfeiture. Id.

See CORPORATIONS, 4, 5, 8; INSURANCE (LIFE), 3; LEGATEES, ETC., 1-3.

MUNICIPAL CORPORATIONS.

1. The fact that the commissioner of public works at the time of transmitting to the board of assessors the statement of the total amount of the expenses actually incurred by the mayor, etc., on account of the work of constructing certain sewers, accompanied it with a letter saying that the work was begun by day's work, and was so nearly completed when it came under his charge that it was impracticable to make a new contract, does not render such assessment voi l on its face, as the letter is no part of the certificate required by the statute, and the fact that the assessors pinned it to the statement did not in the least alter the character of the record or of the letter. Tripler v. Mayor (Ct. App.), 141.

2. Even if the contents of the letter had been incorporated in, and had formed a physical portion of the statement, the effect would have been the same.

Id.

3. The assessment was confirmed May 24th, 1881, and May 28th the statutory notice requiring payment by July 27th, 1881, after which interest would be added, was served on the parties interested, but the payment not being made the city took no steps toward enforcing it, and in January, 1887, plaintiff's grantee paid the assessment to clear the title out of a part of the consideration money reserved for the purpose. Held, that there was no coercion in law, unless the plaintiff is able to show that she paid the assessment in ignorance of the facts which rendered it wholly void. Id.

4. An action by a taxpayer to restrain the city from making a contract with a corporation to light its streets cannot be maintained under chap. 531, Laws 1881, where the bid of such corporation was the lowest one made and was made in good faith. The fact that the corporation has no right to erect its poles in the street cannot be taken advantage of by the taxpayer to show that such contract would be illegal, as the corporation would be bound on entering into the contract to obtain the necessary right to enable it to perform. Boyle et al. v. Grant et al. (Sup. Ct.), 207. 5. The bid of such corporation stated that no other person or corporation had any interest therein or in the contract proposed to be taken. In fact another corporation had agreed to pay the interest on its bonded indebtedness and a certain dividend on its stock, in return for which the bidding company was to pay over to it all its net earnings. Held, that the corporation ordinance was intended to compel the disclosure by bidders of just such relations with other parties, but that as there was nothing to show that such statement was made with intent to deceive or mislead the city authorities and as the latter were fully aware of the facts before the bid was accepted, they furnished no ground for judicial interference. Id.

6. An owner of property who has taken proceedings before the commissioners appointed under chap. 550, Laws of 1880, to reduce his assessment, and afterwards paid the reduced amount, cannot thereafter seek to avoid or evade the judgment of said commissioners by suing to recover the money so paid on the ground that the assessment was illegal. Hoffman v. Mayor (Sup. Ct.), 442.

7. In proceedings to open a street a nominal award was made to one B. on the ground that his land had been dedicated to use as a street. On his objection on motion to confirm, after evidence as to dedication had been taken, the report was referred back with directions to make him a substantial award, the court holding that there was no dedication, and the order referring it back was affirmed by general term. On motion of certain taxpayers, who were liable to be assessed, permission was given them to present to the commissioners evidence that B.'s land had been dedicated to public use. Held, that the former order related to the facts as they then appeared, having no prospective effect or application, and leaving the subject of dedication to such further examination as might be made of it by the commissioners, and that the order in question was properly made, and was no encroachment on the decision of the general term. Matter of Dept. of Public Parks (Sup. Ct.), 516.

8. Where a fireman of New York city is served with charges and specification against him and directed to report at headquarters the next morning, and upon doing so proceeds with the trial of such charges without objection and is given every opportunity to prove his innocence, he cannot afterward be heard to complain that he had not sufficient notice of trial. People ex rel. Finigan v. Purroy et al. (Sup. Ct.), 560.

9. In driving over an elevation of earth left in one of defendant's streets after repairs, some part of plaintiff's carriage broke, the horse became frightened and ran away, and she was thrown out and injured. In an action to recover for such injuries, the court admitted evidence of declarations of defendant's street commissioner to a workman a few days after the accident, that there was a high mound there and that it must be picked off and cleaned up before somebody else got hurt. Held, error; that such declarations were not competent evidence to bind defendant, and that their admission was liable to affect materially the minds of the jury. Sherman v. Village of Oneonta (Sup. Ct.), 587.

10. The charter of the city of Troy, Laws 1872, chap. 129, tit. 6, § 10, requires the presentation of a claim against the city to its comptroller. The attorney for the plaintiff prepared such a claim, presented a copy to the comptroller, stated that he had the original with him and partly exhibited it, and he asked the comptroller whether that was all he wanted, to which the latter replied "yes.' Held, a substantial compliance with the requirements of the charter. McDonald v. City of Troy (Sup. Ct.), 704.

11. In an action upon a contract made with the city, an admission in the answer that certain work was done entitles the plaintiff to at least nominal damages, and hence a dismissal would be improper. Toop et al v. Mayor (N. Y. C. P.), 724.

12. The contract was assigned to plaintiffs, who were sureties of the contractor, with the consent of the city, but such consent was not according to the requirements of the contract. On the trial a stipulation was given that the case should be disposed of as if plaintiffs were properly the assignees of the contract. Held, that this obviated the objection that a valid assignment had not been shown, and that the pleadings might be conformed thereto on the appeal. Id.

13.

14.

The contract provided that the work should be completed within sixty days after notice to commence; that this should not be construed to mean consecutive days, nor to include days on which the work was delayed by the weather, the acts of the city or unforeseen or difficult circumstances, "all of which shall be determined by the commissioner of public works, who shall certify the same in writing." Held, that the obtaining of such certificate was not a condition precedent to the maintenance of an action to recover moneys earned under the contract. Id.

To avail itself of the right to the liquidated damages provided for in the contract for delays in the work, the city must allege the same in its answer either expressly as a partial defense or as a counterclaim. Id. 15. Relator was charged with intoxication. It was shown that, having fallen in pursuit of an offender and soiled his clothes, he entered a saloon to clean them, but it was not shown that he drank anything there. He appeared excited, and on arriving at the station house the officers state he

was so much intoxicated as to be unfit for duty. Other witnesses testified that he was not intoxicated. Relator testified that he had not eaten anything that day, and had taken medicine given him by a doctor, who swore that it was composed of alcoholic extracts. Held, that there was sufficient in the evidence to justify the conclusion that he had added to the effect of the medicine by the use of liquor, and that the decision of the commissioners would not be disturbed. People ex rel. Lohan v. MacLean et al. (Sup. Ct.), 808.

16. In a contract made with the defendant Reilly by the city of New York through the commissioner of public works it was provided that Reilly was to begin wo k at a time designated by the commissioner and finish in twenty-three days. No time was designated, but Reilly proceeded of his own accord. The contract provided that the commissioner might terminate it for "". 'unnecessary delay." Held, that as no time had ever been designated to commence, the contractor was not in default. Mayor v. Reilly et al. (Sup. Ct.), 810.

17. It also provided that mason work was to cease on December 1 unless the commissioner otherwise directed by written notice. A part of the work was mason work and no work was done before December 1. Held, that as no time to commence was designated and no notice permitting mason work after December 1 was ever given, the commissioner had no power to abrogate the contract. Id.

18. The agreement also provided that if the contract was taken away from the contractor for delay and relet and an extra expense was thereby caused the contractor must pay, on notice from the commissioner, the excess so due. Held, in an action against the contractor and his sureties, that failure to give notice of the excess to be paid was a defense. Id.

19. Relator was removed on a charge of intoxication. Three witnesses, including the police surgeon, testified that he was under the influence of liquor; while relator's witnesses testified generally to an earlier hour, and relator testified that he took a single drink before going to bed and his condition resulted from that act. Heid, that there was no such preponderance of evidence in his favor as called for a reversal. People ex. Fanning v. MacLean et al. (Sup. Ct.), 830.

20. A contract made by the city with plaintiff's assignor in 1865 contained a provision that under certain circumstances it could be declared abandoned, and the work relet, the contractor to pay any excess of cost if let at a greater expense, and to be paid the difference if re-let at less cost. Under this provision it was declared abandoned in 1871. In 1877 the city made a contract for work on the same street with other parties, in pursuance of an ordinance of the common council, but the contract called for more work than the former one. Held, that the latter contract could not be said to be a re-letting of the former contract, and that plaintiff had no right to recover thereon. Ferdinand v. Mayor (Sup. Ct.), 845.

21. The charter of Amsterdam, Laws 1885, chap. 131, § 90, provided that the commissioners shall at the same time assess and apportion the said damages, if any, of such improvements on the real estate and against the persons benefited thereby." Held, that they were not limited to an assessment upon lands bordering on the extended streets, and the authority given was without limit or restriction, but any real estate benefited by the improvement is by that fact alone made liable to assessment. Matter of City of Amsterdam (Ct. App.), 948.

22. Section 90 required notice to be published of the determination of the city to make the improvement and to take the lands, notifying owners to file with the city clerk claims for damages, etc., and after appointment of commissioners a second notice was to be published as to when and where they would meet to make "such ascertainment and assessment." Held, that up to this time the statute requires no notice except to those whose lands have been taken. Id.

23. After the commissioners had appraised damages on one hand and assessed for benefits on the other and filed a report with the city clerk a third notice was to be given. Held, that this notice was not confined to the owners whose lands have been taken but runs to all parties interested,