JUDGMENT.

1. A judgment against a plaintiff in
favor of one defendant determines
nothing between the latter and a
co-defendant. Ostrander v. Hart.
406

2. While a judgment may determine
the ultimate rights of defendants,
as between themselves, where their
interests in the subject-matter of
the action are conflicting, such a
determination may not be required
or rendered in favor of one of the
defendants, unless he has not only
demanded it in his answer, but has
served a copy thereof upon the at-
torney of each defendant to be
affected by the determination,
appearing in the action and per-
sonally upon each defendant so
affected who has not appeared.
(Code Civ. Pro. § 521.)
Id.

3. In an action of ejectment, plain-
tiff claimed title under a deed from 1.
an assignee in bankruptcy of H.,
a former owner of the premises.
Defendant P. claimed title under
a sale on foreclosure of a mortgage
executed by H. before the institu-
tion of the bankruptcy proceed-
ings. It was claimed by plaintiff
that, at the time of the foreclosure,
the mortgage was paid. It ap-
peared that S., the mortgagee
brought an action to set aside the
foreclosure proceedings and sale,
to which action H., individually
and as executor and trustee of his
wife, who bid off the premises on
the sale, and his assignee in bank-
ruptcy were made parties; the
assignee did not answer; H. an-
swered, alleging that the premises
were struck off to his wife in pur-3.
suance of an agreement between
her and S. No copy of this an-
swer was served on the assignee.
On trial of that action, the court
found that Mrs. H. advanced
moneys and acquired rights under
the sale which her estate was
entitled to hold, although the claim
secured by the mortgage was paid,
and a decree was entered to the
effect that the foreclosure was
valid, and that S. was not entitled
to have the same vacated. The
trial court here decided that said
judgment was a bar to this action;
that the assignee, being a party,

391

An action to foreclose a mechan-
ic's lien was commenced in the
County Court; the lien was for
$1,670.10. The complaint was
amended on trial so as to demand
only $800. It was claimed by the
owner that the court did not have
jurisdiction. Held, that as there
was nothing in the summons to
show what the action was brought
for, it being under the Code of
Civil Procedure of the same form
in all cases (SS 416, 418), the court
acquired jurisdiction when it was
served and had power to amend
the complaint. Van Clief v. Van
Vechten.

571

JUSTICES OF THE PEACE.

1. Under the provisions of the Judi-
ciary Act ( 25, chap. 280, Laws
of 1847), as amended in 1880 (§ 1
chap. 354, Laws of 1880), in refer-
ence to the removal of justices of
the peace, which gives the court
power in a proceeding for that
purpose to certify and tax certain
"reasonable expenses," the same
to "be a charge against the city,
town or village within which such
justice of the peace," etc., resides,
the court has no power, at least in
a proceeding instituted after the
passage of the amendatory act, to
certify and tax counsel fees and
disbursements, the power of the
court is limited to an allowance of
"the reasonable expenses of the
referee." In re King.

602

1. In an action to recover damages
for loss of service, etc., of the
plaintiff's minor daughter and the
expense of medical attendance as
the result of injuries to her from
the falling of plaster from the ceil-
ing of a hallway on the ground
floor in a tenament-house owned
by defendant, an upper floor of
which was leased to and occupied
by plaintiff with his family,
which hallway was used in com-
mon by the tenants, the following
facts appeared: Some time prior
to the injury water had leaked
through the plaster at the place
where it fell, and the attention of
H., from whom plaintiff rented
and who collected the rents and
attended to the repairs, had been
called to the condition of the ceil-
ing and to the danger that the
plaster would fall, and he prom-
ised to have it repaired, but had
failed to do so. Held, that defend-
ant owed to his tenants the duty
of exercising reasonable care in
keeping the hallway in suitable
repair and condition for their use;
that the knowledge of H. as to the
condition of the ceiling was, as
between plaintiff and defendant,
sufficient to charge the latter with
notice; that it was a question for
the jury whether the falling of
the plaster was reasonably to be
apprehended, and so as to whether
defendant was chargeable with
negligence. Dollard v. Roberts,

269

2. Also held, the fact that plaintiff
and his daughter had knowledge of
the condition of the ceiling and
may have apprehended that the
plaster would fall, did not neces-
sarily charge either of them with
contributory negligence in pass-
ing under it; that while the duty
was imposed upon her of using

due care to avoid danger, it could
not be said as matter of law that
she failed in that respect by not
constantly having in mind the con-
dition of the ceiling when passing
through the hallway, as she was
obliged to do in going to and fro.
1а.

3. At the time of the injuries plain-
tiff's daughter was between thir-
teen and fourteen years of age,
and was accustomed to perform
services in doing housework. De-
fendant's counsel asked the court
to charge the jury that if plaintiff
failed to prove the value of the
time lost or facts on which an esti-
mate of such value could be
founded, only nominal damages
for that item could be given. This
request was refused, and the court
charged that if the jury found
plaintiff was entitled to recover,
he was entitled to recover not only
for loss of service, the result of
the injury, up to the time of trial,
but also for prospective loss dur-
ing the child's minority, and also
for expenses actually and neces-
sarily incurred, or which would be
immediately necessary in conse-
quence of the injury in the care
and cure of the child. Held, no
Id.

error.

LEGISLATION.

1.It seems that under the provisions
of the act of 1842 (Chap. 306, Laws
of 1842), requiring the secretary
of state when an act as published
in the session laws is certified "as
having been passed by the assent
of two-thirds of the members
elected to each house to state in
connection with it as published in
the session laws that it was passed
"by a two-thirds vote" and that
this statement shall be presumptive
evidence that the bill was certified
as having been so passed, the pre-
sumption thus created may be
overcome by the production of the
original certificate showing it was
not so passed. Rumsey v. N. Y.
& N. E. R. R. Co.
88

2. But while under the Revised Stat-
utes (1 R. S. 156, § 3), no act shall
be deemed to have been passed by
a two-thirds vote unless so certified
by the presiding officer of each.

house, a defective certificate which
fails to state either way, i. e., as to
whether or not the act was passed
by a two-thirds vote, is not con-
clusive to overcome the presump-
tion created by the statement of
the secretary in the session laws.
Id.

3. In such case the journal of the
house whose presiding officer has
made the defective certificate may
be resorted to for the purpose of
determining the fact.
Id.

4. It seems it would not be proper to
go back of the certificate, if in due
form, for the purpose of impeach-
ing it.
ld.

LEGISLATURE.

It seems the legislature has power to
discriminate between residents and
non-residents in favor of the for-
mer, in regard to its waters, the
common property of the people of
the state. People v. Lowndes. 455
See CONSTITUTIONAL LAW.

LIEN.

1. Under the provisions of the act of
1850 (Chap. 295, Laws of 1850) and
the similar provision of the Code
of Civil Procedure (1380), pro-
viding that after one year from
the death of a party against whom
in his life-time a final money judg
ment had been rendered, the same
"may be enforced by execution
against any property upon which
it is a lien," with like effect as if
the judgment debtor was still liv-
ing, no distinction is made between
judgments upon sole, joint, or
joint and several contracts, and
the land of a deceased surety,
against whom, as surety, a judg-
ment has been recovered, and has
become a lien upon said land in
his life-time, is not excepted, and
is not relieved from the lien by his
death. Baskin v. Huntington. 313

2. Where, therefore, prior to the
death of one of the makers of a
joint and several promissory note,
who executed it as surety, judg-
ment had been recovered against
him thereon, and had become a

tees to enforce the liability im-
posed by said act (§ 12), because
of a failure to file an annual report
in January, 1887, L., one of the
defendants, claimed that he was
not a trustee at that time. It ap-
peared that L. was elected in 1880,
and that no subsequent election
was held; he testified that after
the expiration of a year from his
election he had nothing to do with
its affairs, except to perform du-
ties as foreman in its shop; that he
never attended or was notified to
attend any meeting of the trus-
tees, and was never consulted by
its officers. It appeared, however,
that in December, 1886, in opposi-
tion to an application to the attor-
ney-general to bring an action to
dissolve the corporation, L. made |
and read an affidavit in which he
stated that he was a trustee and
referred to the others as his co-
trustees; he reiterated this state-
ment in an affidavit thereafter
made to oppose the appointment
of a receiver. L. testified in regard
to these affidavits that he did not
understand when he made them
that he was making a statement
that he was then a trustee, but sup-
posed he had stated he was once a
trustee. Held, that the question
was one of fact and having been
found against the defendant below,

it was not reviewable here.
Nat. Bank v. Lamon.

First

366

1.

that the trustees were not, under
the circumstances, relieved from
the duty of filing the report in
question.
Id.

MARRIED WOMEN.

The provision of the act in rela-
tion to married women (Chap. 90,
Laws of 1860, as amended by chap.
172, Laws of 1862), making the
property a married woman "ac-
quires by her trade, business, labor
or services, carried on or performed
on her sole and separate account,"
her separate property, does not
apply to labor performed by her
for her husband, and she cannot
make a binding contract with him
for her services having no connec-
tion with a separate business and
estate, although the same are to be
rendered outside of her household
duties. While he cannot require
her to perform services for him
outside of the household, such
services as she does render, whether
within or without the strict line of
her duty, belong to him, and a
promise to pay therefor is simply
a promise to make her a gift, and
so is not enforceable. Blaechinska
v. Howard Mission, etc.

497

2. The claim of the plaintiff was
upon notes given by the corpora-
tion in September and October,
1886, which did not mature until
after January 20, 1887. The cor-
poration stopped work in its shops
and discharged its employes about
December 15, 1886. About that
time it borrowed a large sum of
money giving a mortgage upon its
property to secure it. L. testified
that it was then solvent. The
application to the attorney-general
was made December 29, 1886, the
ground of which did not appear.
The action was commenced by him
January 15, 1887. An order to
show cause why a receiver should
not be appointed was granted
January 18 and a receiver was ap-
pointed March 7, 1887. The bring-
ing of the action and the appoint-
ment of a receiver were opposed 1.
by two out of four trustees. Held,

MASTER AND SERVANT.

Id.

Where, in an action by an em-
ploye against a railroad company