moneys which become due under the contract is

MINORS.
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.

MISREPRESENTATION.
$. 132. A delivery of materials held not to See Fraud.
validate a mechanic's lien.-Van Nest Wood-

MISTAKE.
working Co. v. Minka (Sup.) 619.

Affecting will, see Wills, $ 152.
VI. WAIVER, DISCHARGE, RELEASE, Ground for setting aside release, see Release,
AND SATISFACTION.

$ 16.
(B) BOND OR DEPOSIT TO PREVENT OR

MODIFICATION.
DISCHARGE LIEN.

Of judgment or order on appeal, see Appeal, $
$ 228. It is not a condition precedent to an 1154.
action to enforce the liability of a surety on a
bond. to discharge a mechanic's lien that the

MONEY LENT.
lienor exhaust his remedy against the landown. By insurance company, see Insurance, & 36.
er.-Genninger v. Frank A. Wahlig Co. (City
Ct.) 578.

$ 6. Complaint in an action for money loaned
VII. ENFORCEMENT.

held not demurrable, because the agreement to
$ 246. Under Code Civ. Proc. 88 1628, 3401, repay was not annexed or set out in the com-
held, where pending an action to foreclose a me: plaint.—Pringle v. Mulholland (City Ct.) 572.
chanic's lien an action on the debt is brought 87. A check held to be presumed to have
without leave, it would be authorized by a nunc been given to pay a debt, and not as a loan.-
pro tunc order.-Brown v. Knight (čity Ct.) Russell v. Amlot (Sup.) 1080.
592.

8 7. To overcome the presumption that a
§ 291. A court of equity having jurisdiction check was given to pay a debt, and not as a
of the parties in an action to foreclose a me- loan, it is proper to show the business rela-
chanic's lien can determine the validity of tions between the parties.--Russell v. Amlot
claims in any wise interfering with the en- (Sup.) 1080.
forcement of the lien.-Concord Const. Co. v.

8 7. Evidence held admissible as tending to
Plante (Sup.) 153.

overcome the presumption that a check was
$ 303. Under Code Civ. Proc. $ 3412, if a given to pay a debt, and not a loan.-Russell
mechanic's lienor fails to establish a valid lien, v. Amlot (Sup.) 1080.
he máy recover such sums as he might recover
for in an action on a contract against any party

MONEY RECEIVED.
to the action.-Van Nest Woodworking Co. v.
Minka (Sup.) 619.

Recovery of payment in general, see Payment,

§ 82.
MEDICAL TREATMENT.

Recovery of price paid for goods, see Sales, 8

391.
Criminal responsibility of parent for failure to Recovery of price paid for land, see Vendor
furnish medical attendance for minor child,

and Purchaser, 8 337.
see Parent and Child, § 17.

8 1. An action for money had and received

will lie whenever one has money which in equi-
MEMORANDA.

ty and good conscience belongs to another. -

Davenport v. Walker (Sup.) 411.
Required by statute of frauds, see Frauds,

§ 2. An unincorporated association's treasurer
Statute of, 8 118.

held not liable to it for money had and received.

-Strahl v. Fink (Sup.) 352.
MERCANTILE AGENCIES.

8 17. Allegations in an action by the receiv-
Statement to mercantile agency as admission, er of a bank held to state a cause of action
see Evidence, $ 205.

against defendants for money received in pay-

ment of bonds sold by them to the bank's cashier
MERGER.

and paid for with the bank's money.-Davenport

v. Walker (Sup.) 411.
Of cause of action in judgment, see Judgment, $ 17. Under an allegation that plaintiff's
88 570-630.

cashier paid for bonds purchased from defendant
Of estates, see Estates, $ 10.

with a cashier's check which defendant receiv-
Of mortgage by assignment, see Mortgages, sed with notice that the funds belonged to plain-
268.

tiff, plaintiff could show either actual or con-
MILK.

structive notice that the money received by de-

fendant belonged to the bank, and was not lim-
Health regulation as to sale of, see Food, $ 2.ited to such a showing of notice as might be
Mandamus to compel issuance of peddlers' li- inferred from the form of the check.--Daven-
cense, see Mandamus, 88 87, 154.

port v. Walker (Sup.) 411.
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER

f 18. Weight of the evidence held to show | sion of sale under the judgment.-Mayer .
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. (L) DISPOSITION OF PROCEEDS AND
Chauncey (Sup.) 366.

SURPLUS.

8 564. A judgment foreclosing a mortgage
MONTH.

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 tbe appii
cation of the proceeds of the sale of the parels

covered by the first mortgage to the payın-at
MORTGAGES.

thereof.-Citizens' Permanent Savings & Loan
Leaseholds, see Landlord and Tenant, $$ 79, Ass'n v. Rampe (Co. Ct.) 597.
8012.

(N) FEES AND COSTS.
I. REQUISITES AND VALIDITY. 8 582. In foreclosure, the expenses of a sur-
(A) NATURE AND ESSENTIALS OF CON- vey and of a search for unpaid taxes formed do
VEYANCES AS SECURITY.

part of the costs, though a reasonable amount

for searches for taxes might have been included
$ 25. Where a mortgage and accompanying by the referee in his expenses.—Mayer v. Jones
bond are given on no other consideration than (Šup.) 300.
promises of the mortgagee, none of which he
keeps, held, there is a failure of consideration.-

MOTIONS.
Newman v. Overbaugh (Sup.) 369.

Necessity for purpose of review, see Appeal.
$38. Evidence held to require a finding that

$ 237.
a conveyance of certain property in controversy Relating to pleadings, see Pleading, sf 316-367.
to defendant B. was in fact a mortgage.-Ma-

For particular purposes or relief.
ples v. O'Brien (Sup.) 175.

Change of venue in civil actions, see Venue, $I
V. ASSIGNMENT OF MORTGAGE OR

45, 52.
DEBT.

Direction of verdict in civil actions, see Trial,

88 177, 178.
f 256. An assignee of a bond and accompany- Dismissal or nonsuit on trial, see Trial, $$ 159,
ing bond held to take them subject to equities 164.
between the parties.- Newman v. Overbaugh New trial in civil actions, see New Trial,
(Sup.) 369.

114-131.
§ 257. One taking an assignment of a mort. Opening or setting aside default judgment, see
gage and accompanying note in liquidation of

Judgment, $$ 138–169.
an antecedent debt held not a bona fide purchas- Presentation of objections for review, see Ag
er for value.-Newman v. Overbaugh (Sup.) 369. peal, $8 197-237.

§ 268. A mortgage held not merged in the Striking out evidence, see Trial, $ 83.
fee by assignment to the owner of the equity
of redemption ;, there being an intervening mort-

MOTOR VEHICLES.
gage.-Citizens' Permanent Savings & Loan On highways in general, actions for injuries
Ass'n v. Rampe (Co. Ct.) 597.

from negligent or wrongful use of highway,
VII. PAYMENT OR PERFORMANCE

see Highways, 8 184.
OF CONDITION, RELEASE,
AND SATISFACTION.

MOVING PICTURE SHOWS.
§ 314. An application, under Real Property See Theaters and Shows, $ 3.
Law (Laws 1903, p. 1142, c. 490) $ 270a, for
an order dispensing with the production of a MUNICIPAL CORPORATIONS.
mortgage on satisfaction thereof, held proper-
ly denied.-In re Leckie (Sup.) 32.

See Schools and School Districts, $ 102.
X. FORECLOSURE BY ACTION.

Mandamus, see Mandamus, $ 87.

Ordinances relating to intoxicating liquors, see
Notice of pendency of action, see Lis Pendens, Intoxicating Liquors.
8 16.

Street railroads, see Street Railroads.

Water supply, see Waters and Water Courses,
(F) PLEADING AND EVIDENCE.

88 183, 203.
§ 459. A complaint in an action to foreclose
a mortgage, with an answer, held to form an

V. OFFICERS, AGENTS, AND EM.
issue, raising the question of which of two mort-

PLOYÉS.
gages is the first lien.-Citizens' Permanent Sav- (A) MUNICIPAL OFFICERS IN GENERAL
ings & Loan Ass'n v. Rampe (Co. Ct.) 597.

Authority of mayor to revoke license of picture
(J) SALE.

show, see Theaters and Shows, $ 3.
$ 511. Parties to a mortgage foreclosure ac § 133. The board of aldermen of the city of
tion held bound by a stipulation for a suspen- I New York is a legislative body, within Civil

Service Law (Laws 1899, p. 798, c. 370) § 8, bationary period prescribed by municipal serv-
providing that the unclassified service shall com ice commission rule 35, he will be required on
prise officers and employés of a legislative body. his reinstatement to serve out the balance of
-O'Grady v. Polk (Sup.) 290.

his probationary period.-McVay v. City of New

York (Sup.) 908.
(B) MUNICIPAL DEPARTMENTS AND
OFFICERS THEREOF.

§ 218. Under Civil Service Law (Laws 1899,

p. 802, c. 370), § 12, a volunteer fireman ap-
Restraining acts of police, see Injunction, 88 pointed by a coroner as his private clerk heid
22, 154.

not entitled to rely on Civil Service Law (Laws
§ 185. Violation by a captain of police of 1899, p. 809, c. 370), $ 21, as amended by Laws
rule 7, par. A, of the New York Police Depart. 1904, p. 1694, c. 697, to prevent his removal
ment, providing that each captain shall fre- without cause.—People v. Harburger (Sup.) 994.
quently visit portions of the precinct at uncer, § 218. Under Civil Service Law (Laws 1899,
tain hours of the day and night, held ground p. 809, c. 370) $ 21, as amended by Laws 1904,
for dismissal.-People v. Bingham (Sup.) 1041. p. 1694, c. 697, a coroner's clerk held not a

§ 189. The right of a police officer to inspect good-faith member of a volunteer fire depart-
houses of ill fame and repress unlawful prac-

ment so as to prevent his removal without cause.
tices therein held not to clothe him with author- -People v. Harburger (Sup.) 994.
ity to violate rights of property and liberty, $ 220. A civil service employé, who had been
and where he does so he is a trespasser.-Colby "laid off," but not removed," held entitled to re-
v. Bingham (Sup.) 705.

cover his salary without first obtaining "rein-

statement” by certiorari or mandamus.--Shane
(C) AGENTS AND EMPLOYÉS.

v. City of New York (Sup.) 685.
§ 216. As the services rendered by appointees $ 220. In an action by a city civil service
in the office of the city clerk and clerk of the employé for salary while he was suspended, held,
board of aldermen of the city of New York are that a certificate of pay roll was not necessary.
in the main legislative, such employés are in the --Shane v. City of New York (Sup.) 685.
unclassified service, within Civil Service Law
(Laws 1899, p. 798, c. 370) $ 8, though not di-

§ 220. Where a city civil service employé was
rectly appointed by the board of aldermen, but laid off". while there was sufficient appropria-
by the city clerk.-0'Grady v. Polk (Sup.)' 290. tion applicable to his work, and no one was

appointed to his place, and his position was not
$ 216. As employés in the offices of the city abolished, held, that he was entitled to his sal-
clerk and clerk of the board of aldermen of the ary, notwithstanding he obtained other work.-
city of New York are appointed to discharge leg- Shane v. City of New York (Sup.) 685.
islative duties, and as their services are mainly
legislative, they are in the unclassified service, 8 220. Evidence held to show that, when a
within Civil Service Law (Laws 1899, p. 798, city civil service employé was suspended, there
c. 370) $ 8, notwithstanding they may perform was neither lack of appropriation applicable to
other duties not legislative.-O'Grady v. Polk the work in which he was engaged nor lack of
(Sup.) 290.

work to be done in his department.-Shane v.
$ 216. Within the meaning of Civil Service City of New York (Sup.) 685.
Law (Laws 1899, p. 802, c. 370), $ 12, provid § 220. An employé under municipal service
ing that one clerk of each elective judicial of-commission rule 35, on being illegally removed
ficer shall be exempt from civil service, a cor- during his probationary period, was entitled to
oner is an elective judicial officer.–People v. recover bis salary for the period of his unlaw.
Harburger (Sup.) 994.

ful exclusion from office.-McVay V. City of
$ 217. Under Laws 1899, p. 798, c. 370, 8 New York (Sup.) 908.
8. and municipal service commission rule 35,
an appointment as statistician in the bureau of

VI. PROPERTY.
municipal statistics for the first three months § 225. The right of the city of New York
was probationary, though the appointment did to attack the validity of the sale of a building,
not so provide.—McVay v. City of New York because not sold at public auction as required
(Sup.) 908.

by City Charter (Laws 1901, p. 641, c. 460) 8
& 218. Statement of when the question of 1553, held not involved on the application by
waiver of right by a city employé to have his ope claiming under the purchaser for permis-
removal made only on prescribed procedure is a sion to make alterations in the building-Hur-
question of law and when one of fact. People witz v. Moore (Sup.) 248.
v. Dooling (S1p.) 371.

IX. PUBLIC IMPROVEMENTS.
§ 218. A city employé held not to have notice
of his contemplated removal by the board having (A) POWER TO MAKE IMPROVEMENTS
the power, within the rule of waiver of his

OR GRANT AID THEREFOR.
right to be removed as provided by Civil Service
Law (Laws 1900, p. 420, c. 195) $ 21.- People (Laws 1897, p. 139, c. 378) $ 383, the president

$ 278. Under Greater New York Charter
v. Dooling (Sup.) 371.

of a borough held the proper local authority to
§ 218. Where plaintiff was wrongfully re- determine when and how and under what cir-
moved from his position as statistician in the cumstances a street shall be paved, subject to
bureau of municipal statistics during his pro- | the control of the board of estimate and appor-

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) 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 y. McMullen (Sup.) 49.
(D) DAMAGES.
Compensation for injuries in exercise of power

X. POLICE POWER AND REGULA.
of eminent domain, see Eminent Domain, $

TIONS.
153.

(A) DELEGATION, EXTENT, AND EXER-
Compensation for vacation of streets in exer-

CISE OF POWER.
cise of power of eminent domain, see Emi-
nent Domain, $$ 85, 127, 153, 174, 231, 233, 16, relating to wooden buildings in fire limits.

§ 603. Laws 1897, p. 395, c. 414, & 89, subd.
235, 269.
Increase, after expiration of period of limita- held intended to prevent the use of such ma-

tions, of claims filed in time, see Limitation terials in the construction of buildings, and not
of Actions, $ 127.

to prevent use of building already erected.-
Taking of or injury to property in exercise of Village of Skaneateles v. Hennessey (Co. Ct.)

power of eminent domain, see Eminent Do. 788.
main, § 127.

$ 603. The trustees of a village cannot enjoin
$ 402. Under Laws 1893, p. 1156, c. 537, as

the erection of wooden buildings, wbere they
amended by Laws 1894, p. 1307, c. 567, Laws have not exercised the authority given by Lars
1887, p. 937, c. 721, and Laws 1890, p. 965, 1897, p. 391, c. 414, $ 88, subd. 7, by establish-
c. 545, the grade damage commission 'heid not ing fire limits.- Village of Skaneateles v. He-
to have jurisdiction of damages caused by nessey (Co. Ct.) 788.
changes of grade made by the commissioner of 8 621. The permission of the president of
street improvements pursuant to Laws 1890, p. the borough of Brooklyn to move a building
965, c. 545.–People v. Stillings (Sup.) 138. in accordance with a city ordinance and the

8 404. The limitation in Laws 1895, p. 2041, permission of the superintendent of buildings
c. 1006, § 5, relating to the opening and dis-

to make alterations in the building held inde-
continuance of streets, held to apply to the pro- pendent.-Hurwitz v. Moore (Sup.) 248.
visions of section_14.-In re Spuyten Duyvil
Road (Sup.) 857; In re Stafford, Id.

XI. USE AND REGULATION OF PUB-

LIC PLACES, PROPERTY,
§ 404. Under Laws 1895, p. 2041, c. 1006,

AND WORKS.
$ 5, placing a two-year limitation upon claims
for damages caused by the closing of a street, (A) STREETS AND OTHER PUBLIC
certain maps held not notice to property own-

WAYS.
ers, so as to make applicable the two-year limi: Act authorizing village trustees to care for
tation. In re Spuyten Duyvil Road (Sup.) and light streets not dedicated as private or
857; In re Stafford, Id.

local law, see Statutes, $ 97.
(E) ASSESSMENTS FOR BENEFITS, AND

Acts constituting abandonment or vacation un-
SPECIAL TAXES.

der laws relating to assessment of damasis
8 434. Under Laws 1879, p. 397, c. 310,

in exercise of power of eminent domain, see

Eminent Domain, $ 174.
lands of cemetery association held exempt from Dedication of streets, title or right acquired,
assessment for sidewalk built along its lands. see Dedication, $ 53.
Gouverneur Village v. Gouverneur Cemetery Dedication of streets, weight and sufficiency
Ass'n (Sup.) 1107.

of evidence, see Dedication, $ 44.
§ 434. Laws 1898, p. 1280, c. 539, providing Street as boundary, see Boundaries, $ 20.
for assessments for sidewalks, etc., and fur-

$ 657. Laws 1895, p. 2037, c. 1006, author
ther providing that no property is exempt from izing the discontinuance of streets as therein
assessment except as provided by Laws 1866, provided, provides for the destruction of pub-
p. 610, c. 273. as amended by Laws 1898;: lic and private easements in the discontinued
1280, c. 539, does not repeal Laws 1879, p. 397, streets.- In re Walton Ave. (Sup.) 471.
c. 310, exempting from assessments lands oc-
cupied for cemetery purposes.-Gouverneur Vil § 705. A person standing in a street must
lage v. Gouverneur Cemetery Ass'n (Sup.) 1107. exercise care corresponding to the danger to

§ 479. Under New Rochelle City Charter avoid vehicles thereon.-Boker v. H. Koehler &
(Laws 1899, p. 242, c. 128) & 222, held, that an

Co. (Sup.) 540.
assessment was void for want of adequate de-

XII. TORTS.
scription of the property.-Noxon v. City of
New Rochelle (Sup.) 822.

(B) ACTS OR OMISSIONS OF OFFICERS
8 516. In an action on a paving assessment,

OR AGENTS.
it is no defense that the amount expended was 8 747. The city of New York held not liable
more than one-half of the amount raised for for the torts of its departments of police, fire,
street purposes, nor that the landowner was education, or charity, or of any official or em-
required to pay for paving a portion of the ployé thereof.-Gaetjens v. City of New York
street not fronting on his land.-City of Glens (Sup.) 759.
Falls v. McMullen (Sup.) 49.

$ 747. The city of New York held not liable
$ 516. Where trustees of a village, having for negligence of its fire department in putting
jurisdiction of the person assessed and the up and using a wire, nor for suffering it or

the posts or poles on which it was carried to sonal property tax against defendant.-City of
wear out or decay and fall.-Gaetjens v. City New York v. Halsey (Sup.) 947.
of New York (Sup.) 759.

$ 978. In an action by the city of New York
(C) DEFECTS OR OBSTRUCTIONS IN

to recover personal property taxes, facts held
STREETS AND OTHER PUB-

to constitute a defense under Tax Law (Laws
LIC WAYS.

1896, p. 795, c. 908) $ 259a, added by Laws

1905, p. 624, c. 348.-City of New York v. Hal-
$ 777. The liability for injury to a pedestrian sey (Sup.) 947.
by temporary obstruction of a sidewalk with
building material under a permit held governed

§ 978. Tax Law (Laws 1896, p. 795, c. 908),
by law of negligence, and not of nuisance.-

$ 259a, added by Laws 1905, p. 624, c. 348,
Friedman v. City of New York (Sup.) 750.

relating to the dismissal of suits to enforce pay-

ment of personal property taxes, held applica-
$ 785. A pedestrian held pot entitled to re- ble to such suits throughout the state, so that,
cover for injuries sustained by falling through in such a suit by the city of New York, de-
a hole in a sidewalk.-Hough v. City of New fendant would not be restricted to the defenses
York (Sup.) 658.

permitted by Greater New York Charter (Laws
790. A city held not liable for injury to a 1901, p. 395, c. 466) $ 934.- City of New York
pedestrian from obstruction of a sidewalk with v. Halsey (Sup.) 947.
building material under a permit.-Friedman v.
City of New York (Sup.) 750.

XV. ACTIONS.
§ 791. The time a stone over which plaintiff Validity of contract to furnish information for
fell had laid on the sidewalk held to justify a use in action against city as affected by pub-
finding of constructive notice to the city.-Mo lic policy, see Contracts, 88 123, 138.
riarty v. City of New York (Sup.) 323.
$ 808. City charter held not to make the own-

MUNICIPAL COURTS.
er of real estate which he does not occupy liable
to one injured by accumulation of snow and See Courts, 88 188-190.
ice on the sidewalk of which the owner had no
notice.-Kosters v. National Bank of Auburn MUTUAL BENEFIT INSURANCE.
(Sup.) 647.

See Insurance, $ 719.
§ 814. An action against abutting owner for
injuries to plaintiff by accumulation of ice on
sidewalk, in which city is not joined, "held de MUTUAL INSURANCE COMPANIES,
murrable for want of parties defendant. -Kost- See Insurance, 8 55.
ers v. National Bank of Auburn (Sup.) 647.
§ 818. Evidence of other persons falling,

NAMES.
where plaintiff fell, over an obstruction in a
street, held admissible on the questions of neg. Correction of mistake in name of child in rec-
ligence and contributory negligence.-Friedman ord of births recorded by attending physi-
v. City of New York (Sup.) 750.

cian, see Health, $ 34.

Of corporations, see Corporations, $8 43, 46.
(D) DEFECTS OR OBSTRUCTIONS IN
SEWERS, DRAINS, AND WATER
COURSES.

NAVIGABLE WATERS.
$ 827. 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.

I. RIGHTS OF PUBLIC.
-Jung v. City of New York (Sup.) 368.

§ 1. The term "navigable" at common law
XIII. FISCAL MANAGEMENT, PUB-

and in a legal sense held to mean a stream in
LIC DEBT, SECURITIES, AND

which the tide ebbs and flows.-Fulton Light,

Heat & Power Co. v. State (Ct. Cl.) 1000.
TAXATION.

§ 7. The construction of a barge canal held
(A) POWER TO INCUR INDEBTEDNESS

not authorized by the reserved power of the
AND EXPENDITURES.

state to improve a river for navigation.-Fulton
$ 859. Village Law & 170, added to Laws Light, Heat & Power Co. v. State (Ct. Cl.) 1000.
1897, p. 366, c. 414, by Laws 1907, p. 126, c.
93, relating to the care of streets 14 feet wide II. LANDS UNDER WATER.
or less, held not in violation of Const, art. 8, S
10, relating to expenditure of money for private Adverse possession as against state, see Ad-
purposes.-Smith v. Smythe (Sup.) 1071.

verse Possession, $ 7.

Condemnation by city, see Eminent Domain, s
(D) TAXES AND OTHER REVENUE, AND

126.
APPLICATION THEREOF.

Grant of uplands as including land between
$ 978. Facts held to show an equitable de-

high and low water mark or to thread of
fense of estoppel, under Greater New York

stream, see Boundaries, 88 13, 15.
Charter (Laws 1901, p. 395, c. 466) $ 934, in an $ 37. Laws 1786, p. 334, c. 67, permitting
action by the city of New York to recover per-' the land office commissioners to grant land un-

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (1) NUMBER