moneys which become due under the contract is
not binding as against lienors for materials
used in the construction of the building.-Con- See Infants.
cord Const. Co. v. Plante (Sup.) 153.

III. PROCEEDINGS TO PERFECT.

MINORS.

MISREPRESENTATION.

$132. A delivery of materials held not to See Fraud.
validate a mechanic's lien.-Van Nest Wood-
working Co. v. Minka (Sup.) 619.

VI. WAIVER, DISCHARGE, RELEASE,
AND SATISFACTION.

(B) BOND OR DEPOSIT TO PREVENT OR
DISCHARGE LIEN.

§ 228. It is not a condition precedent to an
action to enforce the liability of a surety on a
bond to discharge a mechanic's lien that the
lienor exhaust his remedy against the landown-
er. Genninger v. Frank A. Wahlig Co. (City
Ct.) 578.

VII. ENFORCEMENT.

$246. Under Code Civ. Proc. §§ 1628, 3401,
held, where pending an action to foreclose a me-
chanic's lien an action on the debt is brought
without leave, it would be authorized by a nunc
pro tunc order.-Brown v. Knight (Čity Ct.)

592.

§ 291. A court of equity having jurisdiction
of the parties in an action to foreclose a me-
chanic's lien can determine the validity of
claims in any wise interfering with the en-
forcement of the lien.-Concord Const. Co. v.
Plante (Sup.) 153.

$303. Under Code Civ. Proc. § 3412, if a
mechanic's lienor fails to establish a valid lien,
he may recover such sums as he might recover
for in an action on a contract against any party
to the action.-Van Nest Woodworking Co. v.
Minka (Sup.) 619.

MEDICAL TREATMENT.

Criminal responsibility of parent for failure to
furnish medical attendance for minor child,
see Parent and Child, § 17.

MEMORANDA.

Required by statute of frauds, see Frauds,
Statute of, § 118.

MERCANTILE AGENCIES.
Statement to mercantile agency as admission,
see Evidence, § 205.

MERGER.

Of cause of action in judgment, see Judgment,
§§ 570-630.

Of estates, see Estates, § 10.

MISTAKE.

Affecting will, see Wills, § 152.
Ground for setting aside release, see Release,
$ 16.

MODIFICATION.

Of judgment or order on appeal, see Appeal, §
1154.

MONEY LENT.

By insurance company, see Insurance, § 36.

§ 6. Complaint in an action for money loaned
held not demurrable, because the agreement to

repay was not annexed or set out in the com-
plaint.-Pringle v. Mulholland (City Ct.) 572.

§ 7. A check held to be presumed to have
been given to pay a debt, and not as a loan.-
Russell v. Amlot (Sup.) 1080.

§ 7. To overcome the presumption that a
check was given to pay a debt, and not as a
loan, it is proper to show the business rela-
tions between the parties.-Russell v. Amlot
(Sup.) 1080.

§ 7. Evidence held admissible as tending to
overcome the presumption that a check was
given to pay a debt, and not a loan.-Russell
v. Amlot (Sup.) 1080.

MONEY RECEIVED.

Recovery of payment in general, see Payment,
§ 82.

Recovery of price paid for goods, see Sales, §
391.

Recovery of price paid for land, see Vendor
and Purchaser, § 337.

§ 1. An action for money had and received
will lie whenever one has money which in equi-
ty and good conscience belongs to another.-
Davenport v. Walker (Sup.) 411.

§ 2. An unincorporated association's treasurer
held not liable to it for money had and received.
-Strahl v. Fink (Sup.) 352.

§ 17. Allegations in an action by the receiv-
er of a bank held to state a cause of action
against defendants for money received in pay-
ment of bonds sold by them to the bank's cashier
and paid for with the bank's money.-Davenport
v. Walker (Sup.) 411.

17. Under an allegation that plaintiff's
cashier paid for bonds purchased from defendant
with a cashier's check which defendant receiv-

Of mortgage by assignment, see Mortgages, §ed with notice that the funds belonged to plain-
268.

MILK.

Health regulation as to sale of, see Food, § 2.
Mandamus to compel issuance of peddlers' li-
cense, see Mandamus, §§ 87, 154.

tiff, plaintiff could show either actual or con-
structive notice that the money received by de-
fendant belonged to the bank, and was not lim-
ited to such a showing of notice as might be
inferred from the form of the check.-Daven-
port v. Walker (Sup.) 411.

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER

§ 18. Weight of the evidence held to show | sion of sale under the judgment.-Mayer v.
that plaintiff, bondsman for a fugitive, paid mon- Jones (Sup.) 300.
ey to defendant's bank to aid in bringing back,
as well as in locating, the fugitive.-Carroll v.
Chauncey (Sup.) 366.

MONTH.

(L) DISPOSITION OF PROCEEDS AND

SURPLUS.

Tenancy from month to month, see Landlord covered by a prior mortgage, must order the sale
and Tenant, §§ 115, 116.

MORTGAGES.

8564. A judgment foreclosing a mortgage
covering separate parcels, some of which are
of the parcels separately, and direct the appli
cation of the proceeds of the sale of the parcels
covered by the first mortgage to the payment
thereof.-Čitizens' Permanent Savings & Loan

Leaseholds, see Landlord and Tenant, §§ 79, Ass'n v. Rampe (Co. Ct.) 597.
802.

I. REQUISITES AND VALIDITY.

(A) NATURE AND ESSENTIALS OF CON-

VEYANCES AS SECURITY.

$ 25. Where a mortgage and accompanying
bond are given on no other consideration than
promises of the mortgagee, none of which he
keeps, held, there is a failure of consideration.-
Newman v. Overbaugh (Sup.) 369.

§ 38. Evidence held to require a finding that
a conveyance of certain property in controversy
to defendant B. was in fact a mortgage.-Ma-
ples v. O'Brien (Sup.) 175.

V. ASSIGNMENT OF MORTGAGE OR
DEBT.

§ 256. An assignee of a bond and accompany-
ing bond held to take them subject to equities
between the parties.-Newman v. Overbaugh
(Sup.) 369.

§ 257. One taking an assignment of a mort-
gage and accompanying note in liquidation of
an antecedent debt held not a bona fide purchas-
er for value.-Newman v. Overbaugh (Sup.) 369.
$268. A mortgage held not merged in the
fee by assignment to the owner of the equity
of redemption; there being an intervening mort-
gage.-Citizens' Permanent Savings & Loan
Ass'n v. Rampe (Co. Ct.) 597.

VII. PAYMENT OR PERFORMANCE
OF CONDITION, RELEASE,

AND SATISFACTION.

§ 314. An application, under Real Property
Law (Laws 1903, p. 1142, c. 490) § 270a, for
an order dispensing with the production of a
mortgage on satisfaction thereof, held proper-
ly denied. In re Leckie (Sup.) 32.

X. FORECLOSURE BY ACTION.
Notice of pendency of action, see Lis Pendens,
§ 16.

(F) PLEADING AND EVIDENCE.
459. A complaint in an action to foreclose
a mortgage, with an answer, held to form an
issue, raising the question of which of two mort-
gages is the first lien.-Citizens' Permanent Sav-
ings & Loan Ass'n v. Rampe (Co. Ct.) 597.

(J) SALE.

511. Parties to a mortgage foreclosure ac-
tion held bound by a stipulation for a suspen-

(N) FEES AND COSTS.

§ 582. In foreclosure, the expenses of a sur-
vey and of a search for unpaid taxes formed no
part of the costs, though a reasonable amount
for searches for taxes might have been included
by the referee in his expenses.-Mayer v. Jones
(Šup.) 300.

MOTIONS.

Necessity for purpose of review, see Appeal,
§ 237.
Relating to pleadings, see Pleading, §§ 346–367.
For particular purposes or relief.
Change of venue in civil actions, see Venue, #
45, 52.
Direction of verdict in civil actions, see Trial
§§ 177, 178.
Dismissal or nonsuit on trial, see Trial, §§ 159,
164.
New trial in civil actions, see New Trial,

114-131.

Opening or setting aside default judgment, see
Judgment, §§ 138-169.

Presentation of objections for review, see Ap-
peal, $§ 197-237.
Striking out evidence, see Trial, § 83.

MOTOR VEHICLES.

On highways in general, actions for injuries
from negligent or wrongful use of highway,
see Highways, § 184.

MOVING PICTURE SHOWS.

See Theaters and Shows, § 3.

MUNICIPAL CORPORATIONS.

See Schools and School Districts, § 102.
Mandamus, see Mandamus, § 87.
Ordinances relating to intoxicating liquors, see
Intoxicating Liquors.

Street railroads, see Street Railroads.
Water supply, see Waters and Water Courses,
§§ 183, 203.

V. OFFICERS, AGENTS, AND EM-
PLOYÉS.

(A) MUNICIPAL OFFICERS IN GENERAL.
Authority of mayor to revoke license of picture
show, see Theaters and Shows, § 3.

§ 133. The board of aldermen of the city of
New York is a legislative body, within Civil

§ 225. The right of the city of New York
to attack the validity of the sale of a building,
because not sold at public auction as required
by City Charter (Laws 1901, p. 641, c. 466) §
1553, held not involved on the application by
one claiming under the purchaser for permis-
sion to make alterations in the building.-Hur-
witz v. Moore (Sup.) 248.

IX. PUBLIC IMPROVEMENTS.
(A) POWER TO MAKE IMPROVEMENTS
OR GRANT AID THEREFOR.

(Laws 1897, p. 139, c. 378) § 383, the president
§ 278. Under Greater New York Charter
of a borough held the proper local authority to
determine when and how and under what cir-
cumstances a street shall be paved, subject to
the control of the board of estimate and appor-

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER

tionment.-City of New York v. New York | subject-matter, levy an assessment for paving,
City Ry. Co. (Sup.) 939.

the posts or poles on which it was carried to
wear out or decay and fall.-Gaetjens v. City
of New York (Sup.) 759.

(C) DEFECTS OR OBSTRUCTIONS IN
STREETS AND OTHER PUB-
LIC WAYS.

§ 777. The liability for injury to a pedestrian
by temporary obstruction of a sidewalk with
building material under a permit held governed
by law of negligence, and not of nuisance.-
Friedman v. City of New York (Sup.) 750.

785. A pedestrian held not entitled to re-
cover for injuries sustained by falling through
a hole in a sidewalk.-Hough v. City of New
York (Sup.) 658.

§ 790. A city held not liable for injury to a
pedestrian from obstruction of a sidewalk with
building material under a permit.-Friedman v.
City of New York (Sup.) 750.

§ 791. The time a stone over which plaintiff
fell had laid on the sidewalk held to justify a
finding of constructive notice to the city.-Mo-
riarty v. City of New York (Sup.) 323.

§ 808. City charter held not to make the own-
er of real estate which he does not occupy liable
to one injured by accumulation of snow and
ice on the sidewalk of which the owner had no
notice.-Kosters v. National Bank of Auburn
(Sup.) 647.

§ 814. An action against abutting owner for
injuries to plaintiff by accumulation of ice on

sonal property tax against defendant.-City of
New York v. Halsey (Sup.) 947.

§ 978. In an action by the city of New York
to recover personal property taxes, facts_held
to constitute a defense under Tax Law (Laws
1896, p. 795, c. 908) § 259a, added by Laws
1905, p. 624. c. 348.-City of New York v. Hal-
sey (Sup.) 947.

§ 978. Tax Law (Laws 1896, p. 795, c. 908),
relating to the dismissal of suits to enforce pay-
§ 259a, added by Laws 1905, p. 624, c. 348,
ment of personal property taxes, held applica-
ble to such suits throughout the state, so that,
in such a suit by the city of New York, de-
fendant would not be restricted to the defenses
permitted by Greater New York Charter (Laws
1901, p. 395, c. 466) § 934.-City of New York
v. Halsey (Sup.) 947.

XV. ACTIONS.

Validity of contract to furnish information for
use in action against city as affected by pub-
lic policy, see Contracts, §§ 123, 138.

MUNICIPAL COURTS.

See Courts, 88 188-190.

MUTUAL BENEFIT INSURANCE.

See Insurance, § 719.

sidewalk, in which city is not joined, held de- MUTUAL INSURANCE COMPANIES.
murrable for want of parties defendant. Kost-See Insurance, § 55.
ers v. National Bank of Auburn (Sup.) 647.

§ 818. Evidence of other persons falling,
where plaintiff fell, over an obstruction in a
street, held admissible on the questions of neg-
ligence and contributory negligence.-Friedman
v. City of New York (Sup.) 750.

(D) DEFECTS OR OBSTRUCTIONS IN
SEWERS, DRAINS, AND WATER
COURSES.

NAMES.

Correction of mistake in name of child in rec-
ord of births recorded by attending physi-
cian, see Health, § 34.

Of corporations, see Corporations, §§ 43, 46.

NAVIGABLE WATERS.

8827. A city held not liable for damages to See Waters and Water Courses.
real property through surface water flowing
down the street on which the property abutted.
-Jung v. City of New York (Sup.) 368.

XIII. FISCAL MANAGEMENT, PUB-
LIC DEBT, SECURITIES, AND
TAXATION.

(A) POWER TO INCUR INDEBTEDNESS
AND EXPENDITURES.

§ 859. Village Law § 170, added to Laws
1897, p. 366, c. 414, by Laws 1907, p. 126, c.
93, relating to the care of streets 14 feet wide
or less, held not in violation of Const. art. 8, §
10, relating to expenditure of money for private
purposes.-Smith v. Smythe (Sup.) 1071.

(D) TAXES AND OTHER REVENUE, AND
APPLICATION THEREOF.

§ 978. Facts held to show an equitable de-
fense of estoppel, under Greater New York
Charter (Laws 1901, p. 395, c. 466) § 934, in an
action by the city of New York to recover per-

I. RIGHTS OF PUBLIC.

1. The term "navigable" at common law
and in a legal sense held to mean a stream in
which the tide ebbs and flows.-Fulton Light,
Heat & Power Co. v. State (Ct. Cl.) 1000.

§ 7. The construction of a barge canal held
not authorized by the reserved power of the
state to improve a river for navigation.-Fulton
Light, Heat & Power Co. v. State (Ct. Cl.) 1000.

II. LANDS UNDER WATER.

Adverse possession as against state, see Ad-
verse Possession, § 7.
Condemnation by city, see Eminent Domain, §
126.

Grant of uplands as including land between
high and low water mark or to thread of
stream, see Boundaries, §§ 13, 15.

8 37. Laws 1786, p. 334, c. 67, permitting
the land office commissioners to grant land un-

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER