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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.

$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.

MINORS.

MISREPRESENTATION.

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.

87. 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.

82. 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.

MERGER.

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

Of estates, see Estates, § 10.

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

268.

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

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

8 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.

§ 564. A judgment foreclosing a mortgage
covering separate parcels, some of which are

Tenancy from month to month, see Landlord covered by a prior mortgage, must order the sale
and Tenant, §§ 115, 116.
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.-Citizens' Permanent Savings & Loan

MORTGAGES.

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

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§ 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.
8268. 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.

(L) DISPOSITION OF PROCEEDS AND
SURPLUS.

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.

(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.

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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.

(J) SALE.

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

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

|

Service Law (Laws 1899, p. 798, c. 370) § 8,
providing that the unclassified service shall com-
prise officers and employés of a legislative body.
-O'Grady v. Polk (Sup.) 290.

(B) MUNICIPAL DEPARTMENTS AND
OFFICERS THEREOF.

Restraining acts of police, see Injunction, 88
22, 154.

§ 185. Violation by a captain of police of
rule 7, par. A, of the New York Police Depart-
ment, providing that each captain shall fre-
quently visit portions of the precinct at uncer-
tain hours of the day and night, held ground
for dismissal.—People v. Bingham (Sup.) 1041.

§ 189. The right of a police officer to inspect
houses of ill fame and repress unlawful prac-
tices therein held not to clothe him with author--People v. Harburger (Sup.) 994.
ity to violate rights of property and liberty,
and where he does so he is a trespasser.—Colby
v. Bingham (Sup.) 705.

(C) AGENTS AND EMPLOYÉS.

§ 216. As the services rendered by appointees
in the office of the city clerk and clerk of the
board of aldermen of the city of New York are
in the main legislative, such employés are in the
unclassified service, within Civil Service Law
(Laws 1899, p. 798, c. 370) § 8, though not di-
rectly appointed by the board of aldermen, but
by the city clerk.-O'Grady v. Polk (Sup.) 290.

§ 216. As employés in the offices of the city
clerk and clerk of the board of aldermen of the
city of New York are appointed to discharge leg-
islative duties, and as their services are mainly
legislative, they are in the unclassified service,
within Civil Service Law (Laws 1899, p. 798,
c. 370) § 8, notwithstanding they may perform
other duties not legislative.-O'Grady v. Polk
(Sup.) 290.

§ 216. Within the meaning of Civil Service
Law (Laws 1899, p. 802. c. 370), § 12, provid-
ing that one clerk of each elective judicial of-
ficer shall be exempt from civil service, a cor-
oner is an elective judicial officer.-People v.
Harburger (Sup.) 994.

$217. Under Laws 1899, p. 798, c. 370, 8
8. and municipal service commission rule 35,
an appointment as statistician in the bureau of
municipal statistics for the first three months
was probationary, though the appointment did
not so provide.-McVay v. City of New York
(Sup.) 908.

bationary period prescribed by municipal serv-
ice commission rule 35, he will be required on
his reinstatement to serve out the balance of
his probationary period.-McVay v. City of New
York (Sup.) 908.

§ 218. Statement of when the question of
waiver of right by a city employé to have his
removal made only on prescribed procedure is a
question of law and when one of fact.-People
v. Dooling (Sup.) 371.

§ 218. A city employé held not to have notice
of his contemplated removal by the board having
the power, within the rule of waiver of his
right to be removed as provided by Civil Service
Law (Laws 1900, p. 420, c. 195) § 21.-People
v. Dooling (Sup.) 371.

8218. Under Civil Service Law (Laws 1899,
p. 802, c. 370), § 12, a volunteer fireman ap-
pointed by a coroner as his private clerk_held
not entitled to rely on Civil Service Law (Laws
1899, p. 809. c. 370), § 21, as amended by Laws
1904, p. 1694, c. 697, to prevent his removal
without cause.-People v. Harburger (Sup.) 994.

218. Under Civil Service Law (Laws 1899,
p. 809, c. 370) § 21, as amended by Laws 1904,
p. 1694, c. 697, a coroner's clerk held not a
good-faith member of a volunteer fire depart-
ment so as to prevent his removal without cause.

$220. A civil service employé, who had been
“laid off,” but not removed, held entitled to re-
cover his salary without first obtaining "rein-
statement" by certiorari or mandamus.-Shane
v. City of New York (Sup.) 685.

§ 220. In an action by a city civil service
employé for salary while he was suspended, held,
that a certificate of pay roll was not necessary.
Shane v. City of New York (Sup.) 685.

"laid off" while there was sufficient appropria-
$220. Where a city civil service employé was
tion applicable to his work, and no one was
appointed to his place, and his position was not
abolished, held, that he was entitled to his sal-
ary, notwithstanding he obtained other work.-
Shane v. City of New York (Sup.) 685.

§ 220. Evidence held to show that, when a
city civil service employé was suspended, there
was neither lack of appropriation applicable to
the work in which he was engaged nor lack of
work to be done in his department.-Shane v.

City of New York (Sup.) 685.

§ 220. An employé under municipal service
commission rule 35, on being illegally removed
during his probationary period, was entitled to
recover his salary for the period of his unlaw-
ful exclusion from office.-McVay v. City of
New York (Sup.) 908.

VI. PROPERTY.

$ 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.

§ 278. Under Greater New York Charter
(Laws 1897, p. 139, c. 378) § 383, the president
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-

§ 218. Where plaintiff was wrongfully re-
moved from his position as statistician in the
bureau of municipal statistics during his pro-

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.
their action is not subject to collateral attack.
-City of Glens Falls v. McMullen (Sup.) 49.

(D) DAMAGES.

Compensation for injuries in exercise of power
of eminent domain, see Eminent Domain, §
153.
Compensation for vacation of streets in exer-
cise of power of eminent domain, see Emi-

nent Domain, 88 85, 127, 153, 174, 231, 233,
235, 269.
Increase, after expiration of period of limita-
tions, of claims filed in time, see Limitation
of Actions, § 127.
Taking of or injury to property in exercise of
power of eminent domain, see Eminent Do-
main, 127.

$402. Under Laws 1893, p. 1156, c. 537, as
amended by Laws 1894, p. 1307, c. 567, Laws
1887, p. 937, c. 721, and Laws 1890, p. 965,
c. 545, the grade damage commission held not
to have jurisdiction of damages caused by
changes of grade made by the commissioner of
street improvements pursuant to Laws 1890, p.
965, c. 545.-People v. Stillings (Sup.) 138.

8404. The limitation in Laws 1895, p. 2041,
c. 1006, § 5, relating to the opening and dis-
continuance of streets, held to apply to the pro-
visions of section 14.-In re Spuyten Duyvil
Road (Sup.) 857; In re Stafford, Id.

§ 404. Under Laws 1895, p. 2041, c. 1006,
$ 5, placing a two-year limitation upon claims
for damages caused by the closing of a street,
certain maps held not notice to property own-
ers, so as to make applicable the two-year limi-
tation.-In re Spuyten Duyvil Road (Sup.)
857; In re Stafford, Id.

SPECIAL TAXES.

§ 434. Under Laws 1879, p. 397, c. 310,
lands of cemetery association held exempt from
assessment for sidewalk built along its lands.-
Gouverneur Village v. Gouverneur Cemetery
Ass'n (Sup.) 1107.

§ 434. Laws 1898, n. 1280, c. 539, providing
for assessments for sidewalks, etc., and fur-
ther providing that no property is exempt from
assessment except as provided by Laws 1866,
p. 610, c. 273. as amended by Laws 1898, p.
1280, c. 539, does not repeal Laws 1879, p. 397,
c. 310, exempting from assessments lands oc-
cupied for cemetery purposes.-Gouverneur Vil-
lage v. Gouverneur Cemetery Ass'n (Sup.) 1107.
$479. Under New Rochelle City Charter
(Laws 1899, p. 242, c. 128) § 222, held, that an
assessment was void for want of adequate de-
scription of the property.-Noxon v. City of
New Rochelle (Sup.) 822.

§ 516. In an action on a paving assessment,
it is no defense that the amount expended was
more than one-half of the amount raised for
street purposes, nor that the landowner was
required to pay for paving a portion of the
street not fronting on his land.-City of Glens
Falls v. McMullen (Sup.) 49.

X. POLICE POWER AND REGULA-
TIONS.

(A) DELEGATION, EXTENT, AND EXER-
CISE OF POWER.

16, relating to wooden buildings in fire limits,
§ 603. Laws 1897, p. 395, c. 414, § 89, subd.
held intended to prevent the use of such ma-
terials in the construction of buildings, and not
to prevent use of building already erected.-
Village of Skaneateles v. Hennessey (Co. Ct.)
788.

§ 516. Where trustees of a village, having
jurisdiction of the person assessed and, the

§ 603. The trustees of a village cannot enjoin
the erection of wooden buildings, where they
have not exercised the authority given by Laws
1897, p. 391, c. 414, § 88, subd. 7, by establish-
Skaneateles v. Hen-
ing fire limits.-Village
nessey (Co. Ct.) 788.
§ 621.

The permission of the president of
the borough of Brooklyn to move a building
in accordance with a city ordinance and the
permission of the superintendent of buildings
to make alterations in the building held inde-
pendent.-Hurwitz v. Moore (Sup.) 248.

(E) ASSESSMENTS FOR BENEFITS, AND Acts constituting abandonment or vacation un-

der laws relating to assessment of damages
in exercise of power of eminent domain, see
Eminent Domain. § 174.
Dedication of streets, title or right acquired,
see Dedication, § 53.
Dedication of streets, weight and sufficiency
of evidence, see Dedication, § 44.
Street as boundary, see Boundaries, § 20.

XI. USE AND REGULATION OF PUB-
LIC PLACES, PROPERTY,
AND WORKS.

(A) STREETS AND OTHER PUBLIC
WAYS.

Act authorizing village trustees to care for
and light streets not dedicated as private or
local law, see Statutes, § 97.

§ 657. Laws 1895, p. 2037, c. 1006, author-
izing the discontinuance of streets as therein
provided, provides for the destruction of pub-
lic and private easements in the discontinued
streets. In re Walton Ave. (Sup.) 471.

§ 705. A person standing in a street must
exercise care corresponding to the danger to
avoid vehicles thereon.-Boker v. H. Koehler &
Co. (Sup.) 540.

XII. TORTS.

(B) ACTS OR OMISSIONS OF OFFICERS
OR AGENTS.

747. The city of New York held not liable
for the torts of its departments of police, fire,
education, or charity, or of any official or em-
ployé thereof.-Gaetjens v. City of New York
(Sup.) 759.

$ 747. The city of New York held not liable
for negligence of its fire department in putting
up and using a wire, nor for suffering it or

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

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

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. 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),
8259a, added by Laws 1905, p. 624, c. 348,
relating to the dismissal of suits to enforce pay-
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.

MUTUAL INSURANCE COMPANIES,
See Insurance, § 55.

COURSES.

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.

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.

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.

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-

§ 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

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