I. STATUTES OF LIMITATION. (A) NATURE, VALIDITY, AND CON- STRUCTION IN GENERAL.
5. Code Civ. Proc. § 405, when considered in connection with section 414, held not to apply to an action on the bond of a claimant to at- tached property authorized by Municipal Court Act (Laws 1902, p. 1517, c. 580) § 85.-Berner & Freedman v. Walker (Sup.) 615.
15. An agreement by directors that, in con- sideration of a creditor holding its claim against them, resulting from failure to file an annual re port, until the receivership should be closed, they waived any defense by way of limitations, held binding on them after the creditor had act- ed upon it.-Watertown Nat. Bank of Water- town v. Bagley (Sup.) 772.
§ 15. An agreement to waive limitations held, at most, to set the statute running from its date, or from the date when the action is to be brought, and not to waive the statute forever. Watertown Nat. Bank of Watertown v. Bag- ley (Sup.) 772.
II. COMPUTATION OF PERIOD OF LIMITATION.
(A) ACCRUAL OF RIGHT OF ACTION OR DEFENSE.
§ 46. A cause of action for breach of con- tract for support by plaintiff held to have a crued when decedent left plaintiff's house, and to be barred by limitation after six years.-Ga Nun v. Palmer (Sup.) 23.
(C) PERSONAL DISABILITIES AND
§ 72. Short statute of limitations as to pres- entation of claim by infant against decedent's estate held suspended during infancy of claim- ant. In re Cashman (Sur.) 1128.
(F) IGNORANCE, MISTAKE, TRUST, FRAUD, AND CONCEALMENT
OF CAUSE OF ACTION.
§ 95. Limitations (Code Civ. Proc. § 382) commence to run against an action for the con- version of corporate bonds from the time the bonds were converted, and not from the dis- covery of the person who converted them.- Lightfoot v. Davis (Sup.) 904.
(H) COMMENCEMENT OF ACTION OR OTHER PROCEEDING.
§ 127. Under Laws 1895, p. 2041, c. 1006, § 5, limiting the filing of claims for damages from the discontinuance of streets to six years, claims which have been filed in time cannot, after the period of limitations has expired, be increased. -In re Spuyten Duyvil Road (Sup.) 857; In re Stafford, Id.
LIQUOR SELLING.
See Intoxicating Liquors.
§ 22. The rule at common law and in equity § 169. The Trial Term held not to have pow- that an alienee of real estate pending a real er to dismiss an alternative writ of mandamus. action takes subject to the judgment which may-People v. Dooling (Sup.) 371.
be rendered held changed by statute now em- § 187. Where a peremptory writ of manda- bodied in Code Civ. Proc. §§ 1670-1672.-Freed- mus has been awarded in the face of opposing man v. Safran (Sup.) 113.
LITTORAL RIGHTS.
See Navigable Waters, §§ 39, 44.
By insurance companies, see Insurance, § 36. By pawnbroker, see Pawnbrokers. Recovery of money loaned, see Money Lent.
As excuse for delay of contractor, see Contracts, § 300.
Liability of employer for defects, see Master and Servant, § 101.
Element of slander, see Libel and Slander, § 42.
I. NATURE AND GROUNDS IN GEN-
§ 7. The granting of an alternative writ of mandamus rests in the sound discretion of the court.-People v. Owen (Sup.) 502.
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 was the employe's ability to perform the duties and the occurrence of a vacancy.-Stanton v. Erie R. Co. (Sup.) 375.
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.
making one-half of the period of the contract, and the second period, the end of the contract, December 15, 1904, calculations could not be made before expirations of such periods, and. not having attempted an accounting at the ead 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.)
§ 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- § 3. A writing, if not a contract of employ- before the end of the contract period, was im- mercial agency, referring to a date 12 weeks ment, because not binding second party to per- material; and it was irremediable error to form any services, held to be regarded as a base a charge thereon, assuming that it show- promise to employ second party, and his accepted net profits.-Pfaelzer v. Gassner (Sup.) 15. ånce of it, by entering on his duties, established a contract.-Spatz v. Singer (City Ct.) 576.
(C) TERMINATION AND DISCHARGE. Separately stating and numbering causes of ac- tion in action for wrongful discharge, see Pleading, § 52.
Subject-matter of counterclaim in action to re- cover deposit as security for honesty of em- ployé, see Set-Off and Counterclaim, § 25.
20. In the absence of a contract for an unexpired specified term of service, the employ- er has the absolute right, at any time and for any cause, to discharge his employés, and the employés may, at any time and for any cause, even at their own mere will, leave the employ- ment.-Jones v. Maher (Sup.) 180.
§ 30. A servant hired for a specified term held properly discharged for misconduct.-Wies- elthier v. Cohen (Sup.) 559.
§ 39. A complaint held sufficient to sustain a recovery for breach of contract of employ- ment.-Rauh v. Wolf (Sup.) 13.
§ 40. In an action for breach of a contract to employ plaintiff as locomotive engineer as soon as a vacancy occurred, and he was able to take the position, evidence held to show that a vacancy which plaintiff could have filled did oc- cur.-Stanton v. Erie R. Co. (Sup.) 375.
§ 40. A servant, suing for a wrongful dis- charge, must prove a discharge before his term of services expired, but need not specifically prove his discharge without cause.-Toube v. Rubin-Blankfort Co. (Sup.) 673.
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.
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
$ 80. In an action for services, evidence held insufficient to sustain a judgment for defend- ant. Zeller v. Greenebaum (Sup.) 556.
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
§ 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.
(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.
(F) RISKS ASSUMED BY SERVANT. § 219. Plaintiff, a stringer in a piano factory, held to have assumed the risk of injury.- Bodette v. Foster-Armstrong Co. (Sup.) 504.
§ 219. A servant held to have assumed a dan- ger as an obvious risk of the employment.-Dav- enport v. Oceanic Amusement Co. (Sup.) 609.
(G) CONTRIBUTORY NEGLIGENCE OF
§ 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.
§ 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- er's liability act (Laws 1902, p. 1748, c. 600).— Davenport v. Oceanic Amusement Co. (Sup.) 609.
§ 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.
$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. 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. $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.
§ 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.)
§ 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- plicable to the case.-Simpson v. Foundation Co. (Sup.) 878.
$ 265. An employé, injured by falling from a scaffold, held not to show that the scaffold was improper under Labor Law (Laws 1897, p. 467, c. 415) § 18.--Connolly v. Peterson (Sup.) 11.
§ 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- low 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.
§ 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
stop signals when kicking cars.-Braun v. New York Cent. & H. R. R. Co. (Sup.) 668.
$286. A plank along which a servant was employed to wheel dirt held a way which the
master was bound to make safe.-Trentacoste v. Cronin (Sup.) 755.
§ 286. In an action for injuries to a servant sustained while assisting in lowering metal flasks into a pit in a pipe foundry, whether de- fendant was negligent in permitting the flasks to be lowered in the ordinary manner held for the jury.-Pepe v. Utica Pipe Foundry Co. (Sup.) 921.
§ 286. In an employe's action for injuries sustained while assisting in lowering molds into a pit in a pipe foundry, whether defendant was negligent in erecting a structure requiring a method of work so dangerous to workmen in plaintiff's position held for the jury.-Pepe v. Utica Pipe Foundry Co. (Sup.) 921.
§ 288. It was a question for the jury wheth- er the servant, knowing the insecurity of the way, assumed the risk.-Trentacoste v. Cronin (Sup.) 755.
§ 288. In a servant's action for injuries sus- tained while assisting to lower and place a metal flask into a pit in a pipe foundry, whether plaintiff assumed the risk of injury from doing the work in the customary manner held for the jury.-Pepe v. Utica Pipe Foundry Co. (Sup.) 921.
$289. Question whether a motorman who was injured in a collision was guilty of con- tributory negligence held for the jury.-Forton v. Crosstown St. Ry. Co. (Sup.) 746.
82972. Where a servant assumed the risk, it was the court's duty to set aside a verdict in his favor, whether his action was based on the employer's liability act (Laws 1902, p. 1748, c. 600) or at common law.-Bodette v. Foster-Arm- strong Co. (Sup.) 504.
IV. LIABILITIES FOR INJURIES TO
(A) ACTS OR OMISSIONS OF SERVANT. § 301. Master held liable for the negligence of a person employed by his janitor to do the latter's work, though without the master's knowledge. Ellefson v. Singer (Sup.) 453.
§ 302. In case of alleged willful or reckless acts, the test of the master's liability is whether the act was done within the general scope of the employment or to further the master's business, or whether it was done for some other purpose without having his interest or service in mind.- Wallace v. John A. Casey Co. (Sup.) 394.
Admissions by employés, see Evidence, § 243. § 330. In an action against a master for in- juries caused by the negligence of a servant, burden of proof of relationship between de fendant and the servant held to be on plaintiff. Silverman v. Garibaldi (City Ct.) 780.
§ 332. In an action for negligence an instruc- tion as to an admission of defendant's superin- tendent held reversible error because misstating the admission.-Wallace v. John A. Casey Co. (Sup.) 394.
V. INTERFERENCE WITH THE RE- LATION BY THIRD PERSONS.
Liability of trade unions and their members, see Trade Unions, § 8. Restraining unlawful acts, see Injunction, § Restraining interference, see Injunction, § 109.
Right of strikers to persuade third persons not to enter employment, see Torts, § 10.
(A) CIVIL LIABILITY.
§ 339. Servants may even persuade former fellow workmen remaining in the service to leave and join them in the strike, though they may not lawfully employ violence, threats, or verbal abuse.-Jones v. Maher (Sup.) 180.
Authority to revoke license of picture show, see Theaters and Shows, § 3.
MEASURE OF DAMAGES.
§ 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
« ΠροηγούμενηΣυνέχεια » |