tors and Administrators, § 437.
On insurance policy, see Insurance, § 622.
See Intoxicating Liquors.
I. NATURE AND GROUNDS IN GEN-
ERAL.
§ 7. The granting of an alternative writ of
mandamus rests in the sound discretion of the
court.-People v. Owen (Sup.) 502.
(B) ACTS AND PROCEEDINGS OF PUB-
LIC OFFICERS AND BOARDS AND
MUNICIPALITIES.
§ 87. Where a health officer is given discre-
tionary power to grant or withhold licenses to
milk dealers, his discretion will not be reviewed
by mandamus.-People v. Owen (Sup.) 502.
III. JURISDICTION, PROCEEDINGS,
AND RELIEF.
$154. An application for mandamus to com-
pel a health officer to issue a milk peddler's
license, which charged in general terms that the
refusal of a license was arbitrary, but stated no
facts, held insufficient.-People v. Owen (Sup.)
302.
§ 169. The Trial Term held not to have pow-
er to dismiss an alternative writ of mandamus.
-People v. Dooling (Sup.) 371.
§ 187. Where a peremptory writ of manda-
mus has been awarded in the face of opposing
affidavits, the return must be regarded as true
on review, the same as if relator had demurred
thereto.-O'Grady v. Polk (Sup.) 290.
MANDATE.
See Mandamus.
To lower court on decision on appeal, see Ap-
peal, 88 1194-1201.
MAPS.
Filing map of grades in proceedings to alter
streets, see Municipal Corporations, § 402.
See Vendor and Purchaser, § 130.
MARRIAGE.
See Breach of Marriage Promise; Divorce.
§ 3. A marriage consummated in Canada,
not voidable under Canadian law, held not void-
able in New York.-Donohue v. Donohue (Sup.)
241.
§ 50. Evidence held sufficient to establish a
common-law marriage.-In re Spink's Estate
(Sur.) 267.
MARSH LAND.
Expert testimony as to allotment, see Evidence,
§ 536.
MASTER AND SERVANT.
Employés of municipal corporations, see Mu-
nicipal Corporations, §§ 216–220.
Trade unions, see Trade Unions.
I. THE RELATION.
(A) CREATION AND EXISTENCE.
3. A contract by which a railroad com-
pany agreed to hire an injured employé in con-
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER
sideration of a release of damages considered, | business, computed and paid on July 15, 1904,
and held, that the only condition of employment making one-half of the period of the contract,
was the employé's ability to perform the duties and the second period, the end of the contract,
and the occurrence of a vacancy.-Stanton v. December 15, 1904, calculations could not be
Erie R. Co. (Sup.) 375.
made before expirations of such periods, and,
not having attempted an accounting at the end
of the first, his next opportunity would not
occur till the end of the next, period; the con-
tract being entire.-Pfaelzer v. Gassner (Sup.)
15.
83 Contract of a railroad company with in-
jured employé to employ him as soon as he was
able to work and for so long as there was work
to be done and he did it satisfactorily held not
void as being unreasonable.-Stanton v. Erie R.
Co. (Sup.) 375.
§ 3. Agreement held not to create the rela-
tion of master and servant.-In re Ballou (Co.
Ct.) 1118.
§ 3. A writing, if not a contract of employ-
ment, because not binding second party to per-
form any services, held to be regarded as a
promise to employ second party, and his accepted
ånce of it, by entering on his duties, established
a contract.-Spatz v. Singer (City Ct.) 576.
§ 80. On an issue as to the profits of a busi-
ness during a particular period, to determine
a percentage due an employé for services, evi-
dence of a statement of its net worth to a com-
before the end of the contract period, was im-
mercial agency, referring to a date 12 weeks
material; and it was irremediable error to
net profits.-Pfaelzer v. Gassner (Sup.) 15.
base a charge thereon, assuming that it show-
§ 80. In an action for services, evidence held
insufficient to sustain a judgment for defend-
ant. Zeller v. Greenebaum (Sup.) 556.
844. An instruction relating to the burden
of proof, in an action for a wrongful discharge,
held misleading, and reversible error.-Toube v.
Rubin-Blankfort Co. (Sup.) 673.
III. MASTER'S LIABILITY FOR IN-
JURIES TO SERVANT.
(A) NATURE AND EXTENT IN GENERAL
§ 90. An employer need not anticipate and
provide against every possible danger to work-
men, but is only bound to use reasonable care
for their safety.-Packtor v. City of New York
(Sup.) 741.
(B) TOOLS, MACHINERY, APPLIANCES,
AND PLACES FOR WORK.
§ 101. The duty of an employer is to keep his
ways and machinery in as reasonably safe condi
tion as a reasonably prudent man would keep
them.-Nyboe v. Stern (Sup.) 660.
§ 101. An employer must furnish an employé
a reasonably safe place to work and use reason-
able care and foresight not to subject him to
unnecessary danger, taking into account any
special danger involved in the methods of work.
-Pepe v. Utica Pipe Foundry Co. (Sup.) 921.
§ 109. Intestate's employer held not negli
gent for not unhitching the team or directing
the driver to hold the reins before ordering in-
testate to unload the wagon, so as to make him
liable for injuries caused by falling from the
wagon when the team started.-Packtor v. City
of New York (Sup.) 741.
(C) METHODS OF WORK, RULES, AND
ORDERS.
§ 141. A danger held not to be reasonably
anticipated, so as to make it the master's duty
to formulate rules in regard thereto for the
servant's protection.-Davenport v. Oceanic
Amusement Co. (Sup.) 609.
II. SERVICES AND COMPENSATION.
(B) WAGES AND OTHER REMUNERA-
TION.
Exemption of wages from execution, see Exemp-
tions, § 8.
Right of employé to examination of employer's
books in action for wages, see Discovery, § 84.
§ 70. Where an employé was to receive a
percentage of the profits of his employer's
(E) FELLOW SERVANTS.
182. A master held not liable for an injury
if caused by a foreman's invitation to assume a
to a servant after his day's work was over, even
dangerous position, in view of Laws 1906, p.
1682, c. 657.-Cavanagh v. Central New Eng-
land Ry. Co. (Sup.) 343.
$201. An employer would be liable for in-
juries to an employé, though they were in part
caused by the negligence of a fellow servant, if
the injury would not have happened but for
the master's negligence in failing to furnish a
safe place to work.-Pepe v. Utica Pipe Found-
ry Co. (Sup.) 921.
856.
(F) RISKS ASSUMED BY SERVANT.
§ 258. A petition for negligence held not
framed under the provisions of Laws 1902, p.
1748, c. 600, § 1, so as to make that act ap-
§ 219. Plaintiff, a stringer in a piano factory,
held to have assumed the risk of injury.plicable to the case.-Simpson v. Foundation
Bodette v. Foster-Armstrong Co. (Sup.) 504. Co. (Sup.) 878.
SERVANT.
§ 236. A railway employé held not in the ex-
ercise of reasonable care when injured by a
train.-Cavanagh v. Central New England Ry.
Co. (Sup.) 343.
§ 219. A servant held to have assumed a dan-
§ 265. An employé, injured by falling from
ger as an obvious risk of the employment.-Dav-a scaffold, held not to show that the scaffold
enport v. Oceanic Amusement Co. (Sup.) 609.
was improper under Labor Law (Laws 1897,
p. 467, c. 415) § 18.-Connolly v. Peterson
(Sup.) 11.
(G) CONTRIBUTORY NEGLIGENCE OF
§ 2502. Laws 1906, p. 1682, c. 657, amend-
ing Laws 1890, p. 1082, c. 565, known as the
"Railroad Law," by adding section 42a, held to
apply to street railroads, and authorize an in-
struction that presence of defects were prima
facie evidence of negligence.-Forton v. Cross-
town St. Ry. Co. (Sup.) 746.
(H) ACTIONS.
§ 250. An action by a servant against a mas-
ter for injuries, from the alleged failure of the
master to promulgate rules for the government
of its employés, is a common-law action, and
plaintiff cannot gain any aid from the employ-low
er's liability act (Laws 1902, p. 1748, c. 600).-
Davenport v. Oceanic Amusement Co. (Sup.)
609.
§ 252. If a master, by his letter to an in-
jured servant, intended to consent that service
of notice of injury might be deferred until the
extent of the injury should be known, and the
servant was led thereby to defer giving it, the
master's estoppel to object that the provisions
of Employer's Liability Act (Laws 1902, p. 1749,
c. 600) § 2, as to notice of injury, were not
complied with, would be involved.-Wolven v.
Gabler (Sup.) 359.
§ 252. A notice of injury to an employé, re-
quired by Employer's Liability Act (Laws 1902,
p. 1749, c. 600) § 2, held sufficient, without desig-
nating the person charged with the duty of su-
perintendence, who was responsible for the acci-
dent.-Kalisher v. Browning, King & Co. (Sup.)
§ 252. If a master consented that the giving
of a notice of injury to a servant, required by
Employer's Liability Act (Laws 1902, p. 1749, c.
600) § 2, within 120 days after the accident,
should be deferred until the extent of the in-
jury was known, and the consent was acted
on by the servant, a notice given 2 weeks after
removal from a hospital held sufficient.-Wolven
v. Gabler (Sup.) 359.
§ 252. Notice to employer of injury to serv-
ant, required by Employer's Liability Act (Laws
1902, p. 1749, c. 600) § 2, held to be for the em-
ployer's benefit, and waivable by him, either by
words or acts.-Wolven v. Gabler (Sup.) 359.
§ 265. In an action for injuries caused by
the breaking of a scaffold furnished by the mas-
ter, evidence held to rebut the presumption of the
master's negligence arising from the breaking,
under Labor Law (Laws 1897, p. 467, c. 415) §
18.-Lorenzo v. Faillace (Sup.) 326.
§ 265. The presumption of negligence of a
der Labor Law (Laws 1897, p. 467, c. 415) § 18,
master, where a scaffold breaks when used, un-
held rebuttable by uncontradicted evidence that
the break occurred through the negligence of fel-
servants.-Lorenzo v. Faillace (Sup.) 326.
§ 265. Under Labor Law (Laws 1897, p. 467,
c. 415) 18, prohibiting a master from fur-
nishing unsafe scaffolding, held, that a servant,
suing for injuries from an alleged defective
scaffolding, need not introduce evidence of de-
fects in material.-Lorenzo v. Faillace (Sup.) 326.
§ 278. Certain evidence held not to show
that a scaffold was unsafe, within Labor law
(Laws 1897, p. 467, c. 415) § 18.-Connolly v.
Peterson (Sup.) 11.
§ 279. Evidence held insufficient to authorize
a finding that the cover of a coal hole between.
decks on a steamer, into which a member of the
unloading gang fell, was taken and left off by
his fellow servants.-Clinton v. Munson S. S.
Line (Sup.) 383.
§ 284. Whether a master waived the require-
ment of Employer's Liability Act (Laws 1902,
p. 1749, c. 600) § 2, of notice of a servant's in-
jury, held to be for the jury.-Wolven v. Gabler
(Sup.) 359.
§ 286. Evidence of negligence, where an em-
ployé of a steamship company, in unloading its
steamer, fell into an uncovered hole between-
decks, held sufficient to go to the jury.-Clin-
ton v. Munson S. S. Line (Sup.) 383.
§ 286. Where an engineer unfamiliar with
the road failed to act on the rule of the com-
pany as to entering yard limits, and ran into a
train, injuring a brakeman, held error to submit
the question whether the company should have
supplied the engineer with a pilot.-Biehl v.
Erie R. Co. (Sup.) 621.
8 252. The word "cause," as used in Em-
ployer's Liability Act (Laws 1902, p. 1749, c.
600) § 2, relating to notice of an injury to an
employé, defined.-Kalisher v. Browning, King
& Co. (Sup.) 856.
§ 286. Evidence in an action for the death
of a brakeman held insufficient to entitle plain-
tiff to go to the jury on the question whether de-
fendant should have adopted a rule against
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER
§ 302. A master is not permitted to deny See Damages, § 124.
that an act of his servant was done by his own
negligence, if done within the course of the em-
ployment in furtherance of the master's busi-
ness.-Wallace v. John A. Casey Co. (Sup.) 394.
MECHANICS' LIENS.
II. RIGHT TO LIEN.
§ 304. The rule respondeat superior held not (E) SUBCONTRACTORS AND CONTRACT-
to extend to the negligence of an employé in giv-
ing away wood resulting in injury to one identi-
fied with a recipient of the master's charity.-
Wallace v. John A. Casey Co. (Sup.) 394.
ORS' WORKMEN AND MATERIALMEN.
§ 113. A promise by a building contractor
to pay the claim of a third person out of the
|