INSURANCE - Continued.

the question was one of fact for the jury; and that it was erroneous for the
court to decide it as a matter of law. SNECK . TRAVELERS' INS. Co.....

3. Fire insurance policy - declarations of an agent, when not binding upon
the principal.] Upon the trial of an action brought to recover the amount
of a loss under a fire insurance agreement it appeared that the application
signed by the insured stated that the insurer would not be bound until some
director or agent thereof had approved of the application, and it had been
received at its office in a specified city; that the application was not approved
by a director of the insurer, although the agent, through whom the insur-
ance was effected, informed the insured, upon his signing the application
and paying the fee, that the insurance commenced from that time; no policy
was delivered to the insured.

Held, that in the absence of proof that the agent of the insurer had
authority to make another or different agreement than that provided for in
the by-laws and requirements of the company, the plaintiff could not

recover.

Where the power of an agent is apparently limited, a person dealing with
him is bound to inquire concerning the extent of his authority before acting
upon the faith of its existence; and a principal who has not clothed an agent
with either real or seeming authority is not bound by the simple declaration
of such agent that the principal is bound by his acts or statements.
ALLEN V. ST. LAWRENCE COUNTY FARMERS' INS. Co....

JUDGMENT-Waiver of the provision as to the time of entry of a justice's
judgment.] Although it is provided by section 3015 of the Code of
Civil Procedure that a justice of the peace must render judgment and enter
it in his docket book within four days after the submission of the cause to
him, such provision of the statute may be waived.

BEARDSLEY V. POPE..

Reference of a disputed claim - -a decision of the referee not stating the
grounds of the decision- -a a judgment entered thereon cannot be reviewed — power
of the General Term on appeal to send back the case to the referee.

See BAKER v. MOORE....

Effect in the State of New York of a foreign judyment of divorce —lia-
bility of the husband for the support of a child given to the wife.

See RICH v. RICH....

PAGE.

94

461

560

458

566

executors may not

Res adjudicata-what orders are not appealable ·
expend money to investigate whether a person judicially declared to be dead is
alive.

See MATTER OF NOTTINGHAM.

443

A judgment creditor of a corporation for which a receiver has been
appointed, who has not a lien, stands on an equality with simple creditors.
See MOSHER v. SUPREME SITTING OF IRON HALL...

394

Receiver in an action of ejectment—not compelled in proceedings under a
judgment in another action to pay such judgment.
See MERRITT v. SPARLING.

491

When separate judgments in two actions are necessary — nature of a

569

cross-action in chancery.

See NEW YORK SECURITY Co. v. SARATOGA GAS Co.....

JUDGMENT — Continued.

Administrator personally liable for costs--practice on the entry of a

personal judgment against an executor.

See MULLEN v. GUINN...

Costs subsequent to an offer of judgment.

See SCHULTE v. LESTERSHIRE BOOT & SHOE Co.......

Replerin in the cepit - what judgment is proper.

See HOFFMAN v. MARKHAM.

When it will not be set aside for fraud.

See QUINN v. JENKS..

JUDICIAL SALE - Foreclosure by advertisement -

-

PAGE.

statute to be strictly fol-
lowed - defective affidavits — before whom verification of affidavit of sale may be
made common-law proof of sale.

See VAN VLECK v. ENOS.....

JURISDICTION-Powers of courts.
See COURT.

...

JUSTICE OF THE PEACE-Justice's Court-authority of attorneys
therein.] 1. Under the provisions of section 2886 of the Code of Civil Pro-
cedure a party may prosecute or defend an action in a Justice's Court by
an attorney, and under the provisions of section 2890 thereof the authority
of the attorney may be shown by his oral testimony on the trial.

Where the authority of an attorney is properly proved by his own oath
in an action in a Justice's Court, such attorney must be deemed to have
power to manage and control the conduct of the suit. He may consent to
an adjournment for the purpose of summing up the case, and he may
also stipulate to give the justice additional time in which to render his decis-
ion, provided the stipulation is executed on the final submission of the case to
the justice.

The authority of the attorney to appear for his client and to act for him
continues until the final submission of the case, and his client is bound by his
acts, admissions and stipulations made in the conduct of the case prior
thereto. BEARDSLEY . POPE:

2. Waiver by the attorneys of statutory provisions.] Although it is pro-
vided by section 3015 of the Code of Civil Procedure that a justice of the
peace must render judgment and enter it in his docket book within four
days after the submission of the cause to him, such provision of the statute
may be waived. Id.

3.

County Court-power to direct a new trial in a Justice's Court — an
excuse for the default must be rendered.] The County Court is a tribunal of lim-
ited jurisdiction and can exercise on appeal only such powers as are conferred
upon it by statute. The power given to that court by section 3064 of the
Code of Civil Procedure to direct a new trial of an action begun in a court of
a justice of the peace, cannot be exercised unless the defendant "renders a
satisfactory excuse for his default; " and where the defendant fails to de
this the direction that a new trial be had in the court below is erroneous.

4.

DE BEVOISE . INGALLS...

Technical errors in a Justice's Court, disregarded on an appeal to the
County Court.] A technical error in regard to the admission of evidence in a
court of a justice of the peace, not affecting the merits, may properly be dis-
regarded by the County Court when considering, on appeal therefrom, a judg-
ment rendered in the Justice's Court. FRINK 7. STEVENS..

128

226

18

428

348

560

186

283

Appeal from a Justice's Court - amendment of the answer in the
County Court.

See PADDOCK v. BARNETT...

381

to writing.

A magistrate's jurisdiction — not affected by a failure to reduce a charge
See PEOPLE v. CARTER

304

JUSTICE'S COURT:

See JUSTICE OF THE PEACE.

LACHES- Deposit of money · Statute of Limitations does not commence to
run until a demand has been made - presumption of payment arising from the
lapse of time — effect of the failure to appoint an administrator of a deceased
depositor.

See SHELDON v. HEATON...

PAGE.

535

-

Examination of a party before trial — laches in making the application.
See SKINNER . STEELE...

LAND:

See REAL PROPERTY.

LANDLORD AND TENANT Working a farm on shares- landlord's
remedy for the negligence of the tenant.] Where a tenant, who is working a
farm for the owner on shares, negligently allows the owner's cattle to escape
and commit a trespass upon the lands of another, the owner may pay the
damages to the person injured without consulting the tenant and charge
them against the tenant. BUTTON. KINNETZ...

LIEN Mechanic's lien -a contract providing that no payment should be
made until proof is furnished that no liens exist -effect thereof, on the rights of
lienors.] 1. On December 5, 1890, the trustees of the Masonic Hall and
Asylum Fund entered into an agreement with the firm of Dickison &
Allen, whereby the latter agreed to erect a Masonic home for $139,500, pay-
able in twelve installments, eleven to be paid as the work progressed, and
the twelfth (which was the sum of $28,500) to be paid when the building was
finished and accepted. The contract contained the following provision:
"It is also agreed that no payment shall be made hereunder until the said
parties of the second part (the contractors) shall have obtained a certificate
from the clerk of Oneida county showing that at the date of such payment
no liens or claims have been recorded or filed against said premises or build-
ing which are then unsatisfied of record."

On February 14, 1891, the contractors assigned to the Salt Springs
National Bank of Syracuse the final payment contemplated by the contract
as collateral security for present and future indebtedness; notice of which
assignment was given to the trustees of the Masonic Hall and Asylum Fund
on April 28, 1892.

On May 31, 1892, and at various times between that date and July 17,
1892, materialmen filed liens against the property under chapter 342 of the
Laws of 1885.

On June 4, 1892, the contractors assigned to the bank as collateral security
all payments due or to become due them, including all claims for extra
work; of which assignment the trustees received notice on June 6, 1892, upon
which day the contractors abandoned the work, and requested the trustees
to finish it, which they did, at a total expense, including $800 allowed as
damages for a breach of the contract, of $9,278.82. After allowing this sum
there remained due the contractors from the trustees $23,788.49.

On the 6th and 9th days of June, 1892, the bank recovered large judgments
against the contractors, and a receiver of their property was appointed.

In an action brought by the lienors to enforce their liens against the funds
due the contractors,

307

350

LIEN Continued.

-

PAGE.

Held, that the provision in the contract forbidding any payment by the
trustees except on proof furnished by the contractors that no liens existed
against the premises, was one intended by the parties to it not only for the
protection of the trustees, but also for that of the lienors;

That the rights of the lienors were superior to those of the bank, and that
they were entitled to be paid first in the order in which their liens were filed.
BATES v. SALT SPRINGS NAT. BANK.....

2. Failure of an agent to disclose his agency.] The fact that an agent
who agreed to repair a building did not disclose his agency and the name of
his principal, is of no importance in an action brought by such principal
to foreclose a mechanic's lien filed to secure the amount due under such
contract. BERRY . GAVIN...

3.

Mechanic's lien-incorrect statement in the notice as to ownership—
the interest of one who consents to the work is covered by the lien.] Upon the
trial of an action brought to foreclose a mechanic's lien it was shown that
the contract, for doing the work under which the lien was claimed, was made
with one of the two persons who were in possession of the premises, by vir-
tue of an equitable title thereto as vendees under a contract of sale; the ven-
dor named in such contract of sale thereafter conveyed the premises to that
one of the persons in the possession thereof who did not make the contract
for the work, and to his wife, with the consent of the other contract vendee
who contracted to have the work done. The person who made the contract
for the work in making the same acted for himself and his co-vendee, and
the grantees named in the deed were cognizant of the performance of the
work as it progressed. The notice of lien, filed subsequent to the date of the
conveyance, named as the owners of the property the two persons in the pos-
session thereof at the time the contract was made.

Held, that the incorrectness of the statement as to the ownership of the
property did not vitiate the notice or defeat the lien;

That as the work was performed with the consent of the wife of the ven-
dee, who was named as one of the grantees in the deed, it was sufficient to
bring her interest within the operation of the lien. Id.

-

4. Foreclosure of a mechanic's lien by a sub-contractor - assignment by
the contractor of an installment due him - the assignee not a necessary party.]
An action to foreclose several mechanics' liens was brought by sub-contract-
ors against the owner of certain premises, the contractor for the erection of a
building thereon, and certain other lienors. The answer of the owner
alleged, among other things, that at a date prior to the filing of all the liens
except one, the contractor assigned all moneys due and to grow due upon the
second payment due him under the contract between the owner and the con-
tractor, to the firm of Cloughly, Nichols & Co., in payment for material used
in constructing the building, and that after the assignment the contractor
abandoned the contract, and failed and refused to complete the same.

Upon the trial of the action Cloughly was sworn as a witnesss for the
owner, and after the case was submitted, the court granted an order making
Cloughly, Nichols & Co. parties to the action.

Held, that Cloughly, Nichols & Co. were not necessary parties, and that
a complete determination of the claims asserted could be made without their
presence before the court, and that such order was unnecessary and would
be reversed on appeal. MULLIGAN v. VREELAND...

......

236

1

... 183

.....

Adjudication as to the ownership of a life insurance policy — payment
of the premium by a third person — a lien is thereby created in his favor superior
to that of the contingent beneficiaries.

See MANDEVILLE . KENT..

132

Mechanic's lien- costs subsequent to an offer of judgment — interest,

--

after offer, not considered — sections 14 and 19 of chapter 342 of 1885.
See SCHULTE v. LESTERSHIRE BOOT & SHOE CO.....

226

PAGE.

LIMITATION OF ACTION-Deposit of money - Statute of Limitations
does not commence to run until a demand has been made.] 1. Where a per-
son receives the money of another as a deposit the amount so received is not
due until demanded, and the Statute of Limitations does not commence to
run until a demand has been made. SHELDON. HEATON..
535

2. — Presumption of payment crising from the lapse of time.] The pre-
sumption of payment arising from lapse of time, in a case where the
Statute of Limitations has not run, is not conclusive and merely presents
a question of fact for the determination of the jury upon the trial of an
action brought to recover money alleged to be due the plaintiff, yet where
the evidence is such that a jury must find that such payment has been
made, the court may dismiss the complaint and direct a verdict. Id.

3. Effect of the failure to appoint an administrator of a deceased
depositor.] Upon the trial of an action brought to recover the amount of a
deposit made by the plaintiff's intestate thirty years prior to the commence-
ment thereof, it was shown that the intestate died about eight years after
making the same, and that from that time until the demand was made
immediately preceding the commencement of the action there was no
administrator of her estate.

Held, that the case was substantially the same as if only eight years had
elapsed between the delivery of the money and the demand made of the per-
son with whom it was deposited;

That under the circumstances the presumption of payment arising from the
lapse of time was not so irresistible as to justify the withdrawal of that
question from the jury. Id.

4. Promissory note - when a demand is unnecessary — parol evidence to
vary a written instrument.] An action was brought to recover money
deposited with the defendant by the plaintiff's intestate, for which the
defendant gave an instrument in the following words:

"$178.33.

"Due Mrs. M. E. Sheldon, one hundred and seventy-eight 33-100 dollars.
"ROUSES POINT, April 29, 1863.
(Signed) R. HEATON."
Held, that the instrument was a promissory note and that, as no time of
payment was mentioned therein, it was payable immediately;

That under the written contract the plaintiff's intestate could have sued at
once without a demand, as an action would have been a demand;

That the parties to the transaction having voluntarily entered into the
written contract, their rights were to be determined by the writing and its
terms could not be varied by parol evidence. SHELDON 2. HEATON..

-

Taxation of corporations — review of an assessment · -the Statute of
Limitations does not apply to it.

535

See PEOPLE EX REL. EDISON COMPANY v. CAMPBELL (No. 1)........ 527
MAGISTRATE- Failure to reduce a charge to writing.

MANDAMUS — Inspectors of election — compelled by mandamus to correct
clerical errors and violations of the Election Law- no appeal from the allow-
ance of an alternative writ of mandamus.

See PEOPLE EX REL. RANTON v. CITY OF SYRACUSE.

---

-

Veteran volunteer firemen — holding positions as clerks can be discharged
only for cause — -mandamus their proper remedy to secure reinstatement — chap.
577 of 1892.

See PEOPLE EX REL. DRAKE v. SUTTON..

MANDATORY - Statutes.

See STATUTE.

MANUFACTURING CORPORATION:

See CORPORATION.

203

173