7 A married woman may be concluded by an estoppel in pais, the same as any other person. Pond et al. v. Hayden. 349
8 A power of attorney, executed by a married woman, authorizing her husband to sign checks, &c., and accept drafts in her name, which is deposited in the bank where her ac- count is kept, does not authorize him to create a debt or charge defendant's separate estate for a debt, although contracted for the benefit of the estate. Nash et al. v. Mitchell. 388 9 The management by a married woman of her separate property, the receipt and disposi- tion by her of the rents and income, is not a trade or business within the meaning of the enabling statutes.
10 A married woman may create an express charge upon her estate, as security for others, but it must be created in terms and by writ- ing. Id. 11 Where a husband, who is supposed to have acted for his wife in making a purchase, did
not so act, but acted for himself, the wife is not liable, although the articles were pur- chased for the purpose of improving her sepa- rate estate. Travis v. Scriba, 469 12 Her verbal promise to pay in such a case is Id.
void under the Statute of Frauds.
2 An execution on a judgment under the Lien Law of 1862 (relating to Kings and Queens Counties), stands in no better position than any other execution. See REFERENCE.
13 A promise by a married woman to repay, upon the happening of a certain event, money advanced by her father as a foundation for a separate estate, is val d, and upon the happen-1 Plaintiff bought of defendant a piece of land ing of the event can be enforced against her separate estate. Herrington v. Robertson et al. 525
by a quit-claim deed. It was subject to a re- corded mortgage, of which fact both were ignorant. No fraud or misrepresentation was shown. Held, that the plaintiff had no remedy in law or equity. Whittemore v. Farrington.
14 In such case the lumber becomes the pri- mary fund for payment of the mortgage. Id. 15 Where, subsequent to execution, recording, and default in payment of a mortgage on real property, a third party comes into possession of a portion of the mortgaged premises, under an agreement with the mortgagor, by which such possession and use is to operate as part security for money advanced and to be ad- vanced to the mortgagor, the superior equi- ties as between those in possession under the agreement and the mortgagees are with the latter. Upon satisfactory proof of the insol- vency of the mortgagor and the inadequate- ness of the security furnished by the mort- gage, an order, appointing a receiver of the rents and profits of the premises in dispute during the pendency of the action to foreclose, and directing those holding under the agree- ment to vacate or accept a lease from the re- ceiver, is properly granted. The Mutual Life Ins. Co. v. Spicer.
6 Where the Court has held that an instru- ment, purporting on its face to be an absolute deed, is a mortgage, it cannot, in an order giving the grantor a right to redeem within a specified time, provide that, in case of a fail-16 A complaint which alleges that the papers in a certain action to foreclose a mortgage were ure so to do, the instrument shall be deemed an absolute conveyance. Smidt v. Jackson. never served upon plaintiffs, that they never appeared in such action, but were ignorant of 146 the proceedings, and that the appearance en- tered for them was unauthorized, is sufficient to maintain an action to set aside the judg- ment of foreclosure. Ormsby et al. v. Jacques et al. 374
7 It is not necessary to obtain the consent of the Supreme Court to maintain an action for deficiency on a sale on foreclosure against a grantee of the mortgaged premises, who had assumed the payment of the mortgage. Campbell v. Smith.
17 A promissory note given as a payment upon a mortgage, but not paid, does not operate as a payment upon the mortgage. Foote v. Beecher. 396
18 A mortgage given by the owner of the fee upon land which is occupied by a third party under a contract of purchase, is a lien only to the extent of the unpaid purchase money, and will lose its lien as to all purchase moneys subsequently paid in good faith by such third cording the mortgage is not sufficient notice in party without notice of the mortgage. Young v. Guy et ux.
19 Where, upon receiving his deed, the pur- chaser gives a mortgage for the balance of purchase money unpaid, the lien of the prior mortgage continues to that extent, subject to be defeated by payment of the latter mortgage in good faith, and without notice of the prior lien. Id.
20 After the commencement of an action to foreclose the prior mortgage, payment of the latter mortgage to the mortgagee or his as- Id.
signee will not impair the prior lien. 21 A receiver appointed in an action to fore- close a mortgage is only entitled to the rents and profits remaining unpaid to the owner of the equity of redemption or his representative at the time of such appointment. Rider v. Vrooman.
22 An assignee in bankruptcy of the mortgagor is entitled to hold the rents and profits col- lected by him before the appointment of a re- 279ceiver.
4 If the effect of a sewer, constructed by a municipal corporation, is such as to create a nuisance to the property or rights of an indidamages so occasioned is the same as that of a vidual, the liability of the corporation for the private person.
27 N being indebted to C, made a mortgage to plaintiff, who was to hold it as collateral security for the payment to C of the debt. Thereafter plaintiff paid C, and upon default fore-5 Where a city takes possession of land which closed the mortgage in his own name. Held, it does not own, and grades and paves it for a That on these facts no actual assignment of street, and invites travel thereon, it becomes the debt by C to plaintiff was necessary. Wil- bound to exercise the same degree of care over bur v. Nevins et ux. 542 it as if it owned the right of way for the purpose of a street. Sewell v. City of Cohoes. 143
28 Where B and D enter into an agreement by which D is to purchase land for B's benefit, and hold the conveyance as security for repayment of the purchase money, the deed to him is in equity a mortgage. The Bowery Natl. Bk. v. Duncan. 581
29 On B's death the land so purchased descends to his heir subject to such mortgage, and also subject to the dower of the widow. Either the heir or the widow may redeem. Id.
30 A sale of such land by D and appropriation of the proceeds in excess of the purchase price is a conversion. Id.
31 A judgment creditor of B has an equitable lien upon such land.
8 Where a public highway in a city crossed the Erie Canal, and the plaintiff's horse was inproach to the bridge over said canal, Held, jured from the dangerous condition of the apThat the city was not liable, it appearing that the title to the land where the accident ocCarpenter v. City of 227 9 A municipal corporation is not bound to keep in repair a drain, which it has, in part, constructed and repaired, where the same passes over the land of private persons, without whose consent such repairs could not be made. MeCaffrey v. City of Albany.
curred was in the State.
10 The provision in the charter of the City of Cohoes (Laws of 1869, ch. 912, title 13), that an action against the city on a contract, obligation or liability, express or implied, must be brought within a year, held not to apply to an action brought against the city for a tort. McGuffin v. City of Cohoes. 271
11 Where a sidewalk is being repaired, pursuant to a notice from the corporation, by the owner of the adjoining property, the corporation is not liable for an injury occasioned by negligence in the performance of such work. Sweet v. Village of Gloversville.
12 A municipal corporation is not liable for injuries caused by a neglect on its part to keep the streets within the corporate limits in safe
condition for travel, without actual notice of such defect, or proof of such a state of facts as would authorize a jury to find a constructive notice thereof. Id. 13 A City Chamberlain who, in good faith, and without corruption on his part, makes over- payments to contractors through the fault or mistake of the Common Council in issuing different pay warrants covering in part the same payments, is not responsible to the city for the amount of such overpayments. City of Cohoes v. Cary et al. 444
14 When a municipal corporation derives a pe- cuniary benefit from the existence of one of its departments, it is liable for the acts and misdeeds of the officers of such department while in the discharge of their duty. Tormey v. The Mayor, &c., of N. Y.
15 Where a hydrant, placed by a municipal corporation in a public street, is improperly 1 cated, so as to constitute a nuisance in the highway, an action will lie for an injury occa- sioned thereby. Ring v. City of Cohoes. 570 16 It is no objection to the plaintiff's right of recovery in such a case that the horse driven by him was blind and was running away on Id. the occasion of the accident.
See APPOINTMENT, 2; CORPORATIONS, 1,| 2; EASEMENT, 2; EVIDENCE, 15, 43; MAN- DAMUS, 5; MECHANICS' LIENS, 1.
5 One present at a public festival or dance, given at a hotel with consent of the landlord, is to be regarded as present by invitation of the landlord. Camp v. Wood. 131
6 The landlord is bound to use due care to provide a safe passage-way to and from the room where the public are invited to attend. Id.
7 Where the party was partially intoxicated at the time of the injury, it is for the jury to say whether, under all the circumstances, he was free from contributory negligence. Id.
8 Where a contract was made with the defend- ant to build a new bridge in place of an old one, which old one was to be taken down by defendant, and a servant of the contractor's while lawfully at work on the new bridge, with the knowledge and consent of the defend- ant, was injured by the negligence of defend- ant in removing the old bridge. Held, That such servant was entitled to maintain an action for damages. Randolph v. The B. & A. RR. Co. 150
9 Under such a state of facts, defendant was bound to exercise reasonable care and dili- gence. Whether it did so, and whether plain- tiff was guilty of contributory negligence (there being conflicting testimony), should be
1 Actions brought against national banks under § 5197 and 5198 of the Revised Stat-left to the jury. utes, to recover penalties for taking usury, are governed and controlled by the decision of the Court of Appeals in Nash v. White's Bank of Buffalo (4 W. Dig., 196). Johnson v. Nat. Bk. of Gloversville. 124
2 No greater proportion or percentage of tax should be levied upon shares of national bank stock than upon other moneyed taxable capi- tal in the hands of individuals. Adams et al. v. The Mayor, &c.
3 It is not error to submit to the jury the question whether a violation of the rules of a railroad company by its employees caused the injury complained of, and whether such viola- tion was negligence.
10 An action for an injury caused by the negli- gence of several persons will lie against one or 156 more of them. Kain v. Smith.
11 In actions for injuries produced by negli- gence, it must be shown by direct proof, or from the circumstances, that the injured party was not guilty of contributory negligence; in the absence of any evidence on this subject, the plaintiff cannot recover. Wood v. The Vil 211 lage of Andes.
12 In an action to recover damages for the de- struction of buildings and property by fire, arising from defendant's negligence, the ques- tion of title, as between the parties, to the ground on which the buildings and property stood, is immaterial. Kellogg v. The St. Paul & M. RR. Co.
14 In order to warrant a finding that negligence, or an act not amounting to a wanton wrong, is the proximate cause of an injury, it must 4 The falling of a case of goods, while being appear that the injury was the natural and hoisted through a hatchway, whereby plaintiff | probable consequence of such act or negli
gence, and ought to have been foreseen in the light of the attending circumstances, and that there was no independent, intermediate cause. Id.
15 A party renting imperfect machines is not liable for injuries received by a servant of the person to whom they are rented, resulting from a breakage thereof. Burke v. The De Castro & Donner Sugar Refg. Co. 239
16 Where an act of negligence is imminently dangerous to the lives of others, the guilty party is liable to a party injured thereby, whether there exists any privity between them or not; in other cases he is liable only to the party with whom he contracted. Id. 17 Where one who has knowledge that the service-pipe for gas leaks into his cellar, car- ries a lighted lamp into such cellar, whereby an explosion is caused, he is guilty of contributory negligence, and cannot recover for the injury arising from such explosion. Lanigan v. The N. Y. Gas Light Co. 281
18 Where a party who calls at a railroad station for freight takes his team to a position near the track to which the company's agent di- rects him, telling him at the time that no train would pass for half an hour, in an action for injury to one of his horses occasioned by a train which passed within five minutes; Heid, That he was not guilty of contributory negli- gence. The Allegheny Valley RR. Co. v. Find- ley.
19 The question whether exceptional circum- stances are such in a given case as to require additional and unusual precautions, and if so, what precautions, must be determined by the jury. Dolan v. The Prest. D. & H. C. Co. 443 20 Negligence is a failure to do what a reasona- ble and prudent person would do under the circumstances, or doing what such a person would not have done. The Baltimore & Poto- mac RR. Co. v. Jones. 479
21 One who by negligence has brought an in- jury upon himself cannot recover damages for it; nor can he recover, although the defendant has been guilty of negligence, where he has so far contributed to the injury by his own negli- gence or want of ordinary care, that but for such gligence or want of care the misfortune would not have happened.
22 The onus of proving contributory negligence is upon the defendant; and it is error to charge that plaintiff should have shown that his own negligence did not contribute to the injury. Mallory et al. v. Griffey. 512
23 Where the antecedent cause of an accident is a pure casualty, the defect causing the in- jury must be deemed the causa proxima. Ring v. City of Cohoes. 570
See CONTRACTS, 38; CORPORATIONS, 20; ESTOPPEL, 6; EVIDENCE, 9, 43; MARINE COLLISION, 7; MASTER AND SERVANT; MU- NICIPAL CORPORATIONS, 2, 5, 6, 7, 11, 12; RAILROAD COMPANIES; UNION SCHOOLS.
5 The rule is otherwise where there is a restric- tion and the note has been fraudulently di verted. Id.
6 Where defendant promised the trustees of a church that if they would go on and complete had abandoned, he would give some money to a church edifice, the erection of which they help them out, and the trustees completed the building, after which defendant gave his note, although the original promise was void for un- certainty in stating no amount, the note re- lates back to the original consideration and must be paid. The First Society, &c., v. Rath- bun et al.
7 Possession of a negotiable instrument drawn to order and indorsed in blank, is prima facie evidence of title, and the holder need not prove that he gave value therefor, until it is shown that it was fraudulent in its inception, or that its consideration was illegal, or that it was lost or stolen before coming to his posses- sion. Collins v. Gilbert et al. 168
8 In order to defeat the rights of a bona fide holder of a promissory note, which it is claimed was procured by fraud, notice of such infirmity must be brought home to him; proof of such facts and circumstances as would have put a reasonable man on his guard are not sufficient.
9 Where fraud or illegality in the inception of the note are alleged and proved, the onus is on the holder to show that he paid value for it. Id.
10 If a party indorse a promissory note in blank before it is indorsed by the payee, to give the maker credit with the payee, or has partici- pated in the consideration, he is to be deemed a joint maker. Gould v. Martin. 267
11 If his indorsement be subsequent to the making and delivery, and done at the request of the maker pursuant to a contract between
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