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Mandatory injunction, see "Injunction," § 4. § 1. Subjects and purposes of relief. A person who has been duly promoted as captain of police in the city of New York is entitled to a writ of mandamus to compel the civil service commissioners to certify such promotion on the pay roll and to compel the city police to certify the same.-People v. Ogden (Sup.) 73. § 2. Jurisdiction, proceedings, and relief.

In view of the answer in mandamus proceedings under Election Law, Laws 1896, p. 966, c. 909, § 114, to compel the count of void ballots and recount of protested ballots, showing that the inspectors of election had not complied with

section 111, the court held unauthorized to summarily proceed to determine the validity of the void and protested ballots.-In re Perry (Sup.) 406.

Limitations prescribed by New York Revised Charter, Laws 1901, p. 129, c. 466, § 302, held not to apply to mandamus by police officer to secure position as detective sergeant.-People v. Greene (Sup.) 565.

Mandamus by police officer to secure position as detective sergeant held barred by laches.People v. Greene (Sup.) 565.

Relator held to have lost by laches his right to mandamus to have his name placed on the list of persons eligible to teach in New York, under provisions of City Charter, Laws 1897, p. 388, c. 378, § 1081.-People v. Maxwell (Sup.) 947.

See "Mandamus."

MANDATE.

To lower court on decision on appeal, see "Appeal," § 15.

MANSLAUGHTER.

See "Homicide," § 1.

MARRIAGE.

See "Divorce"; "Husband and Wife."

MARRIED WOMEN.

See "Husband and Wife."

MARSHALS.

See "Sheriffs and Constables," § 2.

MASTER AND SERVANT.

See "Work and Labor."

Admissions by employés as evidence, see "Evidence," § 4.

Employer's liability insurance, see "Insurance," §§ 1, 6.

Execution against the person in action for wages, see "Execution," § 3.

Operation of statute of frauds on contract of employment, see "Frauds, Statute of," § 2.

§ 1. The relation.

On breach of a contract of employment, where the servant was unable to obtain work during the remainder of the term, the measure of damages was the stipulated salary for the unexpired portion of the term.-Leslie v. Robie (Sup.) 289.

A notice of discharge given to an actress held a substantial compliance with the contract, and operated to terminate the same.-Leslie v. Robie (Sup.) 289.

Certificates obtained by an employé that he called on customers held not admissible, even to show he got them, in an action for his dis

and 118 New York State Reporter

charge, made on the ground that he had not given his exclusive time to his duties as salesman. -Tishman v. Kline (Sup.) 452.

The evidence on the issues of wrongful discharge of an employé, being conflicting, is properly submitted to the jury.-Marsh v. Bergman (Sup.) 469.

Evidence of facts justifying breach of a contract of employment held inadmissible under a general denial.-Schreiber v. Ash (Sup.) 946. § 2. Master's liability for injuries to

servant.

Master held liable for injuries to an employé, who slipped on the pavement and fell through a defective sewer cover.-Leaux v. City of New York (Sup.) 511.

Where plaintiff was injured by the fall of rock while removing earth from defendant's track, the manner of removing the earth held a detail of the work, properly left to the judgment of the foreman.-Van Derhoff v. New York Cent. & H. R. R. Co. (Sup.) 650.

Selection of rope for the use of men under him by the foreman held to be the act of a corporation, for which it is liable.-Vogel v. American Bridge Co. (Sup.) 799. § 3.

Tools, machinery, appliances, and places for work.

used for switching purposes.-Shannon v. New York Cent. & H. R. R. Co. (Sup.) 646.

Actions.

§ 6.
Under Laws 1902, c. 600, § 2, in an action
for injury to an employé, there being no proof
of notice to the employer within 120 days,
nonsuit for failure to prove facts constituting
a cause of action should be granted.-Stahl v.
Schoonmaker (Sup.) 239.

Where there is no proof of application or violation of labor law (Laws 1897, p. 468, c. 415, § 20, as amended by Laws 1899, p. 351, c. 192), or of the cause of a fall of bricks injuring a servant, a verdict for him in action for the injuries cannot be sustained.-Holzman Katzman (Sup.) 250.

V.

In an action by a servant against the master for injuries caused by the breaking of an elevator, evidence held not to show negligence on the part of defendant.-Kindorf v. Hoellerer (Sup.) 465.

In an action against a master for personal injuries, held, that the question of his negligence in failing to provide a safe place to work was for the jury, and that it was error to dismiss the complaint.-Leaux v. City of New York (Sup.) 511.

In action against a master for death of a servant, alleged to have been caused by the master's negligence, evidence held insufficient to support a finding that deceased was free from negligence.-Huff V. American Fire Engine Co. (Sup.) 651.

A lessee of a portion of a public park held liable to an employé for personal injuries received by reason of defects in the premises.contributory Leaux v. City of New York (Sup.) 511.

A master held not liable for injuries arising from an implement not furnished by him and to the use of which he had not consented.Hackett v. Masterson (Sup.) 751.

$ 4.

Risks assumed by servant.

A servant, employed to shovel pulp from a drainer, held to assume the risk of its falling down.-Vykess v. Duncan Co. (Sup.) 398.

Where plaintiff was injured by a fall of rock, while removing earth from defendant's track, a statement of the foreman, "Never mind looking up," held a declaration of a fellow servant, not imposing any liability on defendant.-Van Derhoff v. New York Cent. & H. R. R. Co. (Sup.) 650.

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In action against a master for death of a servant by the master's failure to guard a set screw, as required by law, evidence held insufficient to show that deceased was caught by the set screw.-Huff v. American Fire Engine Co. (Sup.) 651.

foreman in selection of a rope for men under A charge relating to mistake in judgment of a him held not pertinent under the theories of the parties.-Vogel v. American Bridge Co. (Sup.) 799.

§ 7. Liabilities for injuries to third persons.

The relation of master and servant held not to have existed between defendant and his codefendant, so as to render the latter liable as negligence of master for the negligent driving of defendant. -Thurn v. Williams (Sup.) 296.

Accident to an employé in putting a cover on a tank, it tipping and throwing him in, held caused by his negligence.-Sheehan v. Standard Gaslight Co. (Sup.) 34.

An employé, who noticed a defect in the premises and reported same to master, held not guilty of contributory negligence in continuing work on a promise to repair.-Leaux v. City of New York (Sup.) 511.

Locomotive engineer held guilty of contributory negligence in failing to have his train under control.-Shannon v. New York Cent. & H. R. R. Co. (Sup.) 646.

Railroad company held not negligent in failure to require the placing of torpedoes to warn approaching trains, when the track was being

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and the materials furnished, and the agreed mortgagor.-Barnes v. Long Island Real Esprice or value thereof.-Toop v. Smith (Sup.) tate Exch. & Inv. Co. (Sup.) 951. 326.

Code Civ. Proc. § 3417, requiring action to enforce mechanics' liens to be brought within 30 days after notice, held to vest the court with a sound discretion to vacate or refuse to vacate a lien, where action was not brought within such time.-William H. Jackson Co. v. Haven (Sup.) 356.

Refusal of trial court to vacate mechanic's lien for failure to sue within 30 days after notice, as required by Code Civ. Proc. § 3417, held to be a proper exercise of discretion.-William H. Jackson Co. v. Haven (Sup.) 356.

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The fact that a bond and mortgage were not in the possession of the mortgagee when payments were made was not, of itself, notice to the mortgagor of their assignment.-Barnes v. Long Island Real Estate Exch. & Inv. Co. (Sup.) 951.

Evidence held insufficient to show notice to mortgagor of assignment of mortgage.-Barnes v. Long Island Real Estate Exch. & Inv. Co. (Sup.) 951.

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Continuance in civil actions, see "Continuance." Dismissal of action, see "Dismissal and Nonsuit," 1.

Dismissal or nonsuit on trial, see "Trial," § 6. New trial in civil actions, see "New Trial," § 2. Opening or setting aside default judgment, see "Judgment," § 1.

Quashing indictment or information, see "Indictment and Information," § 1.

Relating to pleadings, see "Pleading," § 5. Service of motion papers on attorney general, see "Attorney General."

Striking cause from calendar, see "Trial," § 2. Striking out evidence, see "Trial," § 4.

An order overruling motion to set aside a subpœna held conclusive that the subpoena was properly issued, appeal therefrom having been abandoned.-In re Randall (Sup.) 294.

An order entered without notice to plaintiff,

Affecting, validity of contract of sale, see containing no reference to an amended com

"Sales," § 1.

By broker, see "Brokers," § 3.

MODIFICATION.

Of contract, see "Contracts," § 3.

Of lease, see "Landlord and Tenant," § 2.

MORTGAGES.

Agreement by mortgagee as to disposition of proceeds of mortgage sale within statute of frauds, see "Frauds, Statute of," § 1. Liability of first mortgagee to second mortgagee for misrepresentation as to amount due, see "Fraud," § 2.

Of personal property, see "Chattel Mortgages." § 1. Assignment of mortgage or debt. Under the express provisions of Laws 1896, p. 616, c. 547, § 271, the recording of an assignment of a mortgage is not of itself notice to the

plaint on which it is based, should be resettled on motion of plaintiff.-Allen v. Becket (Sup.) 1009.

A motion to resettle an order entered without warrant should be denied.-Allen v. Becket (Sup.) 1011.

The entry of an order before 24 hours had elapsed after it was granted does not render it void, but only irregular.-Allen v. Becket (Sup.) 1012.

Where an order is entered irregularly by plaintiff, a duplicate entered by defendant should be set aside on plaintiff's motion.-Allen v. Becket (Sup.) 1012.

MUNICIPAL CORPORATIONS. See "Counties";

"Schools and School Dis

tricts," § 1. Authority of officers as to establishment of railroad crossings, see "Railroads," § 1.

and 118 New York State Reporter

City marshal, see "Sheriffs and Constables," | tired on a pension while under suspension on § 2. charges of misconduct.-People v. Greene (Sup.) Injunctions affecting, see "Injunction," §§ 1, 2. 673. Liability of street railroad company for injury to police officer directing operation of car, see "Street Railroads," § 1. Mandamus, see "Mandamus," § 1. Municipal courts, see "Courts," § 2. Ordinances relating to intoxicating liquors, see "Intoxicating Liquors."

Street railroads, see "Street Railroads."

1. Officers, agents, and employés. Refusal of civil service commissioners to certify the name of a captain of police on the pay roll held not justified by the evidence. People v. Ogden (Sup.) 73.

Title and salary of captain of police held de terminable only by quo warranto.-People v. Ogden (Sup.) 73.

Under Greater New York Charter 1897, Laws 1897, p. 399, c. 378, § 1103, the position of a school teacher in the city of New York is that of an employé, and not that of an officer of the city.-Murphy v. Board of Education of City of New York (Sup.) 380.

Under Laws 1897, p. 273, c. 378, § 779, as amended by Laws 1901, p. 321. c. 466, and Greater New York Charter, p. 257, § 739, the fire commissioner held authorized to remove a fire marshal only after a trial.-People v. Sturgis (Sup.) 403.

3 Laws 1901, p. 122, c. 466, § 290, relative to the police force of New York City, held to apply only to persons who continued in the detective service from April 1, 1901, until January, 1902, when the act took effect January, 1902.-People v. Greene (Sup.) 484.

A patrolman, assigned to duty in the detective bureau, held not acting under such appointment, so as to bring him within 3 Laws 1901, p. 122, c. 466, § 290.-People v. Greene (Sup.) 484.

Evidence held sufficient to support a finding that a policeman falsely accused a roundsman of attempting extortion of a sum of money. People v. Partridge (Sup.) 487.

The determination of the police commissioner, on trial of a police officer for improper conduct, will not be disturbed; there being testimony which, if believed, supports it.-People v. Partridge (Sup.) 779.

Dismissal of a policeman from the force on a third conviction by the police commissioner of improperly using his club held proper.-People v. Partridge (Sup.) 779.

Information charging aldermen with interest in city contract held insufficient.-People v. Mayer (Sup.) 817.

8 2. Public improvements.

A notice to a contractor to commence work on a street improvement on a specified date, which was received after the time named for commencing the work, held sufficient to require the contractor to commence work in a reasonable time.-Masterson v. City of New York (Sup.)

312.

In an action to recover a sum deducted by a city from the contract price for delay pursuant to contract, evidence held sufficient to require a determination by the jury as to whether the commissioner, in making the certificate as to overtime, was not actuated by bad faith.-Masterson v. City of New York (Sup.) 312.

Contract for paving held let to the lowest bidder, in accordance with the requirements of the city charter.-Sisson v. City of Buffalo (Sup.) 325.

damages caused by changes of grade of streets, Whether commissioners, appointed to assess filing their decision dismissing the claim of a landowner with the comptroller, did so pursu ant to or in the absence of statute making provision for such filing, held immaterial.-People v. Leonard (Sup.) 341.

A landowner, whose claim for damages caused by changes of grade of streets has been dismissed by the commissioners, held entitled to review the decision by certiorari or by moving the court to reopen the matter.-People v. Leonard (Sup.) 341.

Under the provisions of the Greater New York Charter, the police commissioner held The decision of commissioners, appointed to authorized to dismiss a policeman, where the assess the damages caused by changes of street return of his trial by a deputy showed a find-grades, dismissing a claim, held final as to them. ing that the policeman was guilty of miscon-People v. Leonard (Sup.) 341. duct.-People v. Partridge (Sup.) 487.

Under Laws 1892, p. 1657, c. 681, § 5, relating to officers holding over, there must be a special election to fill the office of village trustee, where there was a failure to elect at the regular election.-In re Travis (Sup.) 534.

A contractor, under contract for the construction of a city sewer, held not justified in relying on the drawing annexed to the specifications as a warranty as to the depth at which rock would be found.-Kelly v. City of New York (Sup.) 349.

Member of Brooklyn borough headquarters Under Revised Buffalo City Charter, § 11, squad held entitled to position as detective ser- subd. 17, and sections 397, 398, held, that pavgeant under Greater New York Charter, Laws ing contracts must be let to the lowest respon1897, p. 115, c. 378, § 320, and Revised Char-sible bidder.-People v. City of Buffalo (Sup.) ter, Laws 1901, p. 122, c. 466, § 290.-People 434. v. Greene (Sup.) 565.

Under Consolidation Act, Laws 1888, p. 1007, c. 583, tit. 11, § 42, and Greater New York Charter, Laws 1901, p. 154, c. 466, § 355, a policeman held not to have the right to be re

Under Revised Buffalo City Charter, § 283, relating to contracts by municipal authorities, the authorities could not reject the lowest bidder and accept a higher one.-People v. City of Buffalo (Sup.) 434.

§ 3.

Police power and regulations. Sanitary Code, § 134, relating to smoke in cities, held a reasonable regulation.-People v. Horton (Sp. Sess.) 942; Same v. Frisbie, Id. Under Laws 1901, p. 499, c. 466. § 1172, the Court of Special Sessions has exclusive jurisdiction of charges of misdemeanor committed in the city of New York.-People v. Horton (Sp. Sess.) 942; Same v. Frisbie, Id.

$ 4.

Use and regulation of public plaWhere, in an action for a penalty for maintaining steps projecting on a street, there was no evidence showing the street line, it was error to permit a recovery on the assumption that the street line was the same as the house line.-City of New York v. Childs (Sup.) 164. A sidewalk laid by a village held to become part of the lot owner's real property, so that, the village having removed it merely because he would not pay an assessment therefor, it is Hable to him.-Platt v. Village of Oneonta (Sup.) 699.

ces, property, and works.

§ 5. Torts.

Whether a rail extending over a crosswalk constitutes a sufficient notice of danger to a pedestrian to make it her duty to avoid it is a question of fact.-Gribben v. Metropolitan St. Ry. Co. (Sup.) 196.

In the absence of an appearance of danger, pedestrians have the right to assume that sidewalks are safe.-Gribben v. Metropolitan St. Ry. Co. (Sup.) 196.

In an action for injuries received by falling into a trench left open by defendants across a city sidewalk, admission in evidence of a per

The fact that a city had macadamized the surface of a street, and constructed catch-basins, etc., accelerating the flow of drainage water into a stream, held not to render it liable for an overflowing of the stream, unless the drainage had been increased to an extent beyond that which could be accommodated by the wa ter course in its natural condition.-Smith v. City of Auburn (Sup.) 725.

A city held not liable for an injury from a slight depression in the sidewalk.-Schall v. City of New York (Sup.) 737.

MUNICIPAL COURTS.

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Of partnerships, see "Partnership," § 1.

Goods of "Israel F." cannot be seized on a judgment against "Isaac F."-Greenberg v. Angerman (Sup.) 244.

A judgment against "W. B. Gottleib" was enforceable against the defendant, though his valid on account of the use of the initials of the name was "William B. Gottlieb," not being inChristian name, and surnames used being idem sonans.-Gottlieb v. Alton Grain Co. (Sup.) 413.

NAVIGABLE WATERS.

mit from city, which was not pleaded, held See "Waters and Water Courses." error.-Hubbs v. Schwaneflugel (Sup.) 560.

Where a municipal charter requires actual notice to the officials of a defective sidewalk before action therefor, that an official casually passed along the sidewalk held insufficient to establish the required notice.--McManus v. City of Watertown (Sup.) 638.

Under Laws 1897, p. 453, c. 414, § 322, a complaint in an action against a village for injuries must allege that 30 days have elapsed since a verified claim therefor was filed.Thrall v. Village of Cuba (Sup.) 661.

Whether placing a sign on sidewalk in the manner and under conditions of weather in which it was done was for the jury.-Cunningham v. Nilson (Sup.) 66S.

In action against city for damages arising from the overflowing of a stream into which it discharged sewage and surface waters, the judgment held erroneous because of having been tried and decided on a theory different from that of the complaint.-Smith v. City of Auburn (Sup.) 725.

A city is not liable to a landowner for dam ages caused by the overflowing of a stream into which it drains sewage and surface water, where the overflowing is the result of the landowner having unduly narrowed and obstructed the stream.-Smith v. City of Auburn (Sup.) 725.

NEGLIGENCE.

Harmless error in admission of evidence, see "Appeal," § 12.

By particular classes of parties. See "Carriers," §§ 1, 2; "Innkeepers"; "Municipal Corporations," § 5. Charterer of vessel, see "Shipping," § 1. Employers, see "Master and Servant," §§ 2-6. Railroad companies, see "Railroads,' "Street Railroads."

§ 3;

Savings bank, see "Banks and Banking," § 2. Telegraph or telephone companies, see "Telegraphs and Telephones," § 1.

Condition or use of particular species of property, works, or machinery.

1, 2.

See "Railroads," § 3; "Street Railroads," §§
Automobiles, see "Highways," § 1.
Demised premises, see "Landlord and Tenant,"
§ 4.
Contributory negligence.
Of passenger, see "Carriers," § 2.
Of person injured by defects in street, see "Mu-
nicipal Corporations," $ 5.

Of person injured by operation of railroad, see
"Railroads," § 3; "Street Railroads," §§ 1, 2.
Of servant, see "Master and Servant," §§ 5, 6.

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