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Evidence in proceedings agaiust relator, as $ 3. Public improvements.
hief of fire department, before the fire com Specifications in an advertisement for pro-
issioner, examined, and heid insufficient to posals for paving a street held not to afford a
ustain the findings of the commissioner that fair and reasonable opportunity for competition
plator was guilty of charges, brought with a with a patented pavement, as required by New
iew to his removal from office. -People v. | York City Charter, $ 1554, Laws 1901, p. 642,
turgis (Sup.) 687.

C. 466.- Barber Asphalt Paving Co. v. Wilcox
Bias or prejudice on the part of the fire com-

(Sup.) 69.
issioner did not deprive him of power to hear Oswego City Charter (Laws 1895, p. 621, c.
nd determine charges against the chief of tire 394, $ 4), held not to prevent city from requir-
epartment, instituted for the purpose of re- ing the laying of lateral gas and water con-
loving him from office.-People v. Sturgis nections in a street to the edge of abutting
jup.) 657.

property as a preliminary to paving the street,
The chief of fire department was not guilty without the consent of abutting owners.- Dono-
l conduct unbecoming an officer in returning van v. City of Oswego (Sup.) 155.
om his unexpired leave of absence and resum A city ordinance as amended, requiring con-
18 command, as vacation is a personal privi- sent of property owners to certain improve-
ge, that may be waived.-People v. Sturgis ments, held not to apply to an improvement
sup.) 687.

where the city's portion thereof was payable
An error in judgment by the chief of fire from a fund previously voted by the city at a
epartment in conducting operations at a fire special election to be raised from taxation for
ould not be ground for removal.-People v. such improvements.-Donovan v. City of Os-
turgis (Sup.) 687.

wego (Sup.) 155.
Chief of fire department held not guilty of A notice of intention to make a public im-
inverting public property to private use by provement required by Oswego City Charter, $
oring hose at places removed from fire houses. 141 (Laws 1895, p. 621. c. 394, as amended by
People v. Sturgis (Sup.) 687.

Laws 1897, p. 235, c. 263), held not objectiona-
Eridence considered. and held, that an im- ble for failure to include notice of the making
artial trial was not allowed the chief of fire of lateral gas, water, and sewer connections.

- Donovan v. City of Oswego (Sup.) 155.
epartment on charges of prejudicial conduct
ward some of his subordinates.---People v. Oswego City Charter, $S 130, 140, and section
turgis (Sup.) 687.

320, subd. 2 (Laws 1895, p. 621, c. 394, as
Chief clerk in office of coroner of borough of amended by Laws 1897, p. 235, C. 203), 'held
lanhattan held a regular clerk, who cannot be to authorize the city to require the laying of
ischarged, except on charges,' and without a lateral water, gas, and sewer connections, with
earing.–People v. Scholers (Sup.) 713.

conduits, in the street, before the street was
2. Contracts in general.

pavel.-Donovan v, City of Oswego (Sup.) 155.
Under Laws 1896, p. 751, c. 626, the com-

Under a city charter requiring the return of
issioner of correction of the city of New an excess collected from assessments for a mu-
ork held entitled to employ architects to pre-nicipal improvement, the fact that the esti-
are plans and specifications, and also to su- mated cost included an unitemized 5 per cent.
ervise the work on the construction of a build-contingent fund, did not render the assessment
ig.-Withers v. City of New York (Sup.) 1105. invalid.-Donovan v. City of Oswego (Sup.)

Subsequent acceptance of plans and specifi-
ations, and the supervision of work by archi An assessment for street improvement, levied
Octs employed by the New York commission on the basis of the front-foot rule, held not er-

of correction, before passage of Laws 1896. roneous, in the absence of proof that such levy
751, c. 626,' authorizing such employment, was not in fact in accordance with the bene-
eld a ratification thereof. Withers v. City of lits conferred.-Donovan v. City of Oswego
ew York (Sup.) 110).

(Sup.) 155.
Employment of architects by the commission-

In an action for the vacation of an assess.
: of correction to prepare plans and supervise ment for street improvement levied by the
le construction of additions to the city prison, front-foot rule, evidence that an objector's prop-
nder Laws 1896, p. 751. c. 626. held to termi-erty was not benefited by the improvement diu
ate on the completion of the building.–Withers not establish that the method of laying the as-
City of New York (Sup.) 1105.

sessment was invalid.-Donovan v. City of Os-
In an action for architect's services, whether

wego (Sup.) 15).
laintiffs' compensation had been fixed at 5 That a particular lot abutting an improve-
er, cent. of the estimated cost of the building ment was more valuable than another, because

ld a question for the jury.-Withers v. City of (of improvements thereon, did not establish that
ew York (Sup.) 1105.

an assessment on both by the front-foot rule
Architects, appointed by commissioner of cor-

was unequal.-Donovan v. City of Oswego
action, under Laws 1596. D. 151, c. 626, held | (Sup.) 155.
ot entitled to recover for work done after An ohjector to assessments for street im-
leir removal, not approved by the board of provement, alleged to have been levied without
stimate and apportionment.-Withers v. City jurisdiction of the assessors, held entitled to re-
i New York (Sup.) 1107.

view the assessments by a suit in equity, and


and 120 New York State Reporter
not limited to relief obtainable on certiorari.– and others.-City of New York . Otto Sarsas
Donovan v. City of Oswego (Sup.) 155.

Co. (Sup.) 27.
Irregularities in the affidavits of the sureties Where ordinance prescribed a penalty, the
of the bidder and of the athidavit of the bidder court could not, in an action to recorer the
for a contract for the erection of a public build- same, dispense with its imposition; the rioix.
ing held no ground for sustaining a suit by a tion thereof being proven. -City of New York
taxpayer to restrain the letting of the contract v. Hewitt (Sup.) 832.
under Laws 1892, p. 620, c. 301.--McCord v. Where ordinance prescribed penalty for 12
Lauterbach (Sup.) 503.

of a false balance, without requiring prof of
That the bids for a public building to be con- intent, such proof held unnecessary.--City of
structed under the rules of the board of educa- New York v. Hewitt (Sup.) 832.
tion of New York City were not opened im-

City ordinance relative to standard weighing
mediately held no ground for enjoining the let-
ting of the contract at the instance of a tax: apparatus held to be directed against the live de

incorrect scales, etc., and not at their inter-
payer, under Laws 1892, p. 620, c. 301.-Mc- tional alteration.-City of New York v. Hewitt
Cord v. Lauterbach (Sup.) 303.

(Sup.) 832.
That the bids for "mason, steel, iron," etc.,
for a public building, were deposited in a box weighing machines held presumed reasonable-

Municipal ordinance relative to standard
marked "plumbing,' Do ground for sus- City of New York v. Hewitt (Sup.) 82.
taining a suit, under Laws 1892, p. 620, C.
301,, to restrain the letting of the contract.-- Sanitary Code of City of New York, $ 195,
McCord v. Lauterbach (Sup.) 503.

held not to prohibit the keeping of borses in

stables.-People v. Edelstein (Sup.) 861,
Judgment on foreclosure of lien for erection
of school building held properly rendered against & 5. Use and regulation of public pla.
contractors in form, but enforceable against the

ces, property, and works.
fund due the contractors.-Westgate v. Shirley In action for injuries sustained by one while
(Sup.) 593.

working in a hole in a street, held, that the
Service of notice of lien for work done on a jury might properly find that the hole was not
school building, under Laws 1897, pp. 520, 522, a common-law nuisance.—Boston v. Abrabam
c. 418, 88 12, 17, as amended by Laws '1902 (Sup.) 863.
pp. 74, 75, c. 37, held properly made on finan- In an action for injuries sustained by plain-
cial oilicer charged with disbursement of a tiff, owing to defendant's wagon haring been
fund.--Westgate v. Shirley (Sup.) 533.

driven into a hole in which plaintiff was work-
Errors in the notice of lien for work and maing, held, that the jury were warranted in find.
terials in the erection of a school building, which ing negligence on the part of defendant.-Bos-
are nonjurisdictional, will be disregarded. – ton v. Abraham (Sup.) 803.
Westgate v. Shirley (Sup.) 593.

§ 6. Torts.
Property owners, assessed for a public im-

City held not relieved from liability for Degli.
provement, held not entitled to maintain a suit gent maintenance of water pipe, by the fact
to restrain the collection of assessments, though that the pipe which broke was used for con-
they were damaged by reason of the failure of letting principal main with a fire bydrant-
the municipality and its officers to complete Dunston v. City of New York (Sup.) 562.
the work.-- Istoria Heights Land Co. v. City

City held liable for damages caused by water
of New York (Sup.) 031.

pipe negligently maintained in leaky condition,
Under the provisions of the law providing for although such condition was brought about his
a public improvement, municipality held not lia- the negligence of independent contractor.-Dun-
ble for any neglect or non performance on the ston v. City of New York (Sup.) 362.
part of the cominissioners empowered to direct In action for injuries to horse in village street,
the work.-Astoria Heights Land Co. v. City whether plaintiff was guilty of contributors neg-
of New York (Sup.) 631.

ligence in driving a colt into the village beld
Under a statute authorizing a public improve properly submitted to the jury.--Bradner F.
ment, municipality held not liable on any con- Village of Warwick (Sup.) 935.
tract between the commissioners empowered to The fact that no prerious accident had been
dirert the work and the property owners there caused by presence of ditch in village strett
by affected.-Astoria Heights Land Co. v. City held not to show as matter of law that peril
of New York (Sup.) 631.

not to be anticipated. — Bradner v. lil-
Municipality held liable to the persods benefit. lage of Warwick (Sup.) 935.
ed by an improvement for the damages sustain-


Presence of ditch in village street held to
ed by the failure of an improvement commis- tend to make travel dangerous.–Bradner r
sjon, empowered to direct the work, to com- Village of Warwick (Sup.) 935.
plete it. - Astoria Heights Land Co. v. City of
New York (Sup.) 651.

Failure of city to remove snow from cross-

walk held not negligence.-O'Shaughnessey F.
§ 4. Police power and regulations. Village of Middleport (Sup.) 91.

Stationary ornamental awning, projecting fire In an action for injuries by the falling of a
feet into street, held within inhibition of city sidewalk and a private platform, an instruction
ordinauce prohibiting certain named projections authorizing a recovery, if the injury resulted


lo a defect in the sidewalk or platform, held MUTUAL BENEFIT INSURANCE.
r.-Leggett v. City of Watertown (Sup.)

See “Insurance,” g 11.
Fiscal management, public debt,
securities, and taxation.

ailure to follow the requirement of the New
'k City charter that the assessment roll shall

See “Beneficial Associations."
delivered to the receiver of taxes on Sep-
iber ist does not vitiate the tax.-City of
w York v. Ferris (Sup.) 600.

ffidavit of New York City deputy tax com-
isioner, made in conformity to Charter, See “Trade Marks and Trade-Names."
ws 1897, p. 317, c. 378, $ 889, held conclusive
defendant in city's action to collect tax.-

y of New York v. Vanderveer (Sup.) 639.
fficial certificates, made in tax proceedings See “Ferries”; “Waters and Water Courses."
suant to New York City Charter, Laws
17, pp. 87, 88. 322, 323, 325, c. 378, $8 247-
), 900, 902, 307, held conclusive on defendant

city's action to collect tax.--City of New
rk v. Vanderveer (Sup.) 639.

Liability of husband for necessaries furnished

wife, see “Husband and Wife," § 1,
Under New York City Charter, Laws 1897,
318, c. 378, $ 892, publication in city rec-
1 of notice that record of assessments is

possen for public inspection held sufficient.-City
yns New York v. Vanderveer (Sup.) 659.

By particular classes of parties.
Presumption indulged that no designation of See “Carriers," 88 2, 4; "Municipal Corpora-
wspaper, other than City Record, was made tions," $ 6; “Warehousemen."

board of city record, under New York City Attorneys, see "Attorney and Client,” $ 2.
barter, Laws 1897, p. 318, c. 378, § 892.- Driver on street in city, see “Municipal Corpo-
ity of New York v. Vanderveer (Sup.) 659. rations," $ 5.
Burden held on defendant sued by city for Employers, see "Master and Servant," 8 2.
ses to show noncompliance with New York Railroad companies, see “Railroads,” ş° 3.
ity Charter, Laws 1897, p. 318, c. 378, $ 892. Savings bank, see “Banks and Banking," $ 3.
i regard to keeping assessment record open Condition or use of particular species of property,

ir inspection.-- City of New York v. Vander-
Leer (Sup.) 659.

works, or machinery.
Defendant, in city's action to collect tax,

See “Bridges," $ 2; "Electricity”; “Explosives”;

"Railroads," $ 3; “Street Railroads," $ 1,
eld not shown to be estopped to question va-
dity of assessment roll.- City of New York v.

Demised premises, see "Landlord and Ten-
'anderveer (Sup.) 659.

ant," $ 4.

Street in city, see "Municipal Corporations," $5.
Presumption indulged that when vice presi-
ent and acting chairman of New York City

Contributory negligence.
ouncil executed tax warrant, conditions exist. Estoppel on appeal to deny exoneration from,
d authorizing him to do so.-

- City of New York

see "Appeal," $ 5.
· Vanderveer (Sup.) 659.

Of driver of horse injured on village street, see
Pleadings in city's action to collect tax held "Municipal Corporations," § 6.
o require it to prove valid assessment roll.- Of driver of wagon injured by operation of
City of New York v. Vanderveer (Sup.) 659.

street railroad, see "Street Railroads," $ 1.
Valid assessment roll, being shown in city's or person injured by electricity, see "Electrici-

Of passenger, see "Carriers,” $ 5.
iction to collect tax, held conclusive on defend-
unt.-City of New York v. Vanderveer (Sup.) or person injured by explosion, see “Explo-


Evidence in a suit to collect a tax on per- of person injured by operation of railroad, see
sonal property held to establish a prima facie "Railroads," $ 3.
case, entitling plaintiff to a judgment.-City of Of person injured by operation of street rail-
New York v. Sti
eter (Sup.) 6015.

road, see "Street Railroads," $ 1.

1 Of servant, see “Master and Servant," $ 2.

Of tenant, see “Landlord and Tenant,” Š 4.

$ 1. Acts omissions constituting
See "Courts," $ 2.

Authority to award costs, see “Costs," § 1. A subcontractor engaged in excavating held

guilty of negligence in breaking a water pipe,

from which water escaped and flowed onto the

premises of another.-Wheeler v. Norton (Sup.)
See "Homicide."



and 120 New York State Reporter
$ 2. Proximate cause of injury.

$ 1. Grounds.
A recovery in damages for the value of a New trial for alleged newly discorernd er
horse cannot be sustained, where it was not dence denied, where no diligence was shoz
shown that the horse died as a result of the -Huse & Loomis Ice & Transportation Co. F. at
accident.-Warshawsky v, Dry Dock, E. B. & Wieler (Sup.) 24.
B. R. Co. (Sup.) 748.

In a proper case, after the rerdict on a ma-
The act of a subcontractor engaged in ex- tested trial, the trial justice should grata
cavating held the proximate cause of the break- new trial, under Code Civ. Proc. $ 3.8.-Wein
ing, of a water pipe, from which water escaped v. Dunn (Sup.) 101.
and towed onto the premises of another.-

A motion to set aside a verdict as agaizen
Wheeler v. Norton (Sup.) 103).

the weight of evidence is addressed to the
$ 3. Contributory negligence.

sound discretion of the trial judge. - Brill. s. -LO
In an action for the wrongful death of a Levin (Sup.) 109.
child, there can be no recovery, whether he was
sui juris or non sui juris, if he did not exer- 8 2. Proceedings to procure new trial.
cise such care as commensurate with his years

Order setting aside verdict held based on pror,
and intelligence.-Atehason v. United Traction er grounds, under Municipal Court Act, Lens
Co. (Sup.) 176.

1902, p. 1563, c. 580, $254.-Newbound 1. la-
A child two years two months and six days terurban St. Ry. Co. (Sup.) 68.
old is non sui juris.-Carr v. Merchants' Ice

Where a verdict is set aside as against the
Co. (Sup.) 368.

weight of evidence, costs should be impose?

as a condition of granting a new trial.-Care
A child non sui juris is not chargeable with

v. Interurban St. Ry. Co. (Sup.) 206.
contributory negligence in a statutory action for
the negligent killing thereof.-Carr v. Mer- Action of court in imposing certain conditions
chants' Ice Co. (Sup.) 308.

on granting defendant a new trial for pentru bara

discovered evidence held error. - Newschloss
Negligence of a truck driver, with whom plain-

v. Wittner (Sup.) 211.
tiff was riding when they collided with a street
car and he was injured, held not to be imputed Under Municipal Court Act, $ 254, held, that
to him.--Robinson v. Metropolitan St. Ry. Co. motion for new trial, as well as notice there-

(Sup.) 112.

of, must be made within five days from rens
$ 4. Actions.

dition of judgment.-Buchsbaum 7. Feldman
In an action for injury to a child, an instruc-

(Sup.) 747.
tion as to imputed negligence of mother held er-
roneous.-Carr v. Merchants' Ice Co. (Sup.) 368.

While plaintiff must establish freedom from See "Descent and Distribution."
contributory negligence, yet where the circum-
stances are proved, and they exclude fault on
plaintiff's part, due care may be inferred. -

Wolpers v. New York & Queens Electric Light
& Power Co. (Sup.) 815.

On trial by court without jury, see "Trial," 3.
In an action for injuries to a child, held er- On trial in general, see "Trial," $ 3.
ror to dismiss complaint before plaintiff had
presented all his evidence, but, if that was im-

possible, because of want of an interpreter,
cause should have been remanded to calendar.-
Mennella v. Metropolitan St. Ry. Co. (Sup.) 930. Promissory notes, see “Bills and Notes."

See "Bills and Notes."

Of particular facts, acts, or proceedings.

See "Divorce," $ 1.
NEWLY-DISCOVERED EVIDENCE. Appeal from interlocutory order, see “Appeal,"
Ground for new trial in civil actions, see “New Increase of tax assessment, see “Tarati«n." } 3.
Trial," $ 1.

Injuries from defective bridge, see "B.idges,"

$ 2.

Limitation of liability of carrier, see "Carriers,"

& 2.

Loss insured against, see "Insurance," $ 7.
Publication of record of assessment of mu-
nicipal taxes, see "Municipal Corporations,"

Public improvements, see "Municipal Corpora•

tions,” g 3.
8 7.

Sale of pledge, see "Pledges."

School district meeting, see "Schools and School

Districts," $ 1.
Necessity of ordering on reversal on appeal, see That record of assessment of municipal tares is
“Appeal," $ 8.

open to inspection, see "Municipal Corpora:
Objections to rulings in lower court for purpose tions," 8 7.
of review, see “Appeal," $ 3.

To quit, see "Landlord and Tenant," $ 2, 6,

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To particular classes of parties.

Purchaser of real property, see “Vendor and
Purchaser," $ 4.

See “Bastards"; "Infants."
Cenant, see "Landlord and Tenant," $ 2. Custody of children on divorce, see "Divorce,"

$ 3.

Where, on the sale of a business, the pur- | In civil actions, see "Evidence," 8 7.
haser assumed a debt of the seller, a demand
jy the creditor on the purchaser for payment
hereof constitutes an acceptance of the prom-

se.-Lyon v. Clochessy (Sup.) 245.

Bill of, see "Pleading," $ 6.

in street, see "Municipal Corporations," $ 5.

Domicile or residence as affecting venue, see

“Venue," $ 1.

Persons concluded by judgment, see "Judg-

ment,” $ 5.
f easements, see "Easements," g 1.

To crime, see “Homicide," $ 1.

In actions by or against particular classes of


See "Schools and School Districts," $ 1.
Mandamus, see "Mandamus," $ 1.
validits of contracts with as affected by pub- Bank, see "Banks and Banking,” 3.
lic policy, see "Contracts," $ 1.

Stockholders, see "Corporations," $ 1.

In particular actions or proceedings.
Particular classes of officers.

See “Specific Performance,” $ 4.
see "Justices of the Peace"; "Receivers”; | Criminal prosecutions, see “Criminal Law," $ 2.
"Sheriffs and Constables.'

Foreclosure, see "Chattel Mortgages," $ 1;
Issociation officers, see "Associations."

“Mortgages," $ 2.
Corporate officers, see “Corporations,” $$ 2, 3. To revive judgment, see "Judgment," § 6.

Court otticers, see “Courts," $ 1.
E Sunicipal officers, see "Municipal Corporations," | To particular classes of conveyances, contracts,
$ 1.

or transactions.
school officers, see "Schools and School Dis- Joint interests, see "Joint Adventures.”
tricts," $ 1.

1. New parties and change of parties.

Affidavit held insufficient to show any right

in affiant to intervene in an action.-Bouden y.

Long Acre Square Bldg. Co. (Sup.) 1080.
udgment, see "Judgment," § 1.

Affidavit for intervention held insufficient to

show an assignment to atliant. - Bouden v. Long

Acre Square Bldg. Co. (Sup.) 1080.

§ 2. Defects, objections, and amend.
gece in civil actions, see "Evidence," $ 8.


A demurrer construed, and held to state but

a single ground for misjoinder of parties, and

was therefore not defective for failure to point
statement of facts and law on trial by court by Code Civ. Proc. § 4:50.- Town of Palatine v.

out the particular defect relied on, as required
without jury, see "Trial," $ 5.

Canajoharie Water Supply Co. (Sup.) 412.

f court, see "Motions."
leview of appealable orders, see "Appeal.”

$ 1. Actions for partition.

Under general practice rule 65, an action to

partition a single tract of real estate could not

be maintained, where the parties owned anoth-

er tract in common, located in the same city,
udicial notice of, see "Evidence," 8 1.

not included in such action.-Beetson v, Stoops
Tunicipal ordinances, see "Municipal Corpora. (Sup.) 332.
tions," $$ 3, 4.

One not in actual or constructive possession
lelating to street railroads, see “Street Rail- of premises cannot maintain partition.--Mer-
roads," 8 1.

sereau v. Camp (Sup.) 568.

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