MASTER AND SERVANT— Conversion-demand made on a servant,
when insufficient against the master.

See CUSHMAN v. OOTHOUT

·Negligence of the master.
See NEGLIGENCE.

MEASURE OF DAMAGES:

See DAMAGES.

MECHANIC'S LIEN:

See LIEN.

MEMORANDUM - To refresh the memory of a witness.

See WITNESS.

MERGER - Married woman · -her contract merged by her marriage to the
other party to the contract.

See MATTER OF CALLISTER

PAGE.

MISAPPROPRIATION OF MONEY- Burden of proof — presumption of

innocence.

See EVIDENCE.

MISDEMEANOR:
See CRIMES.

MISJOINDER - Each cause of action must be complete.] The Code of Civil
Procedure permits the joinder of causes of action in certain cases, but each
cause of action as joined must have all the elements and attributes of an
independent cause of action. MULLEN v. GUINN.........

A complaint in partition containing an allegation that a devisee pro-
cured the death of the testator joined with one that a devise is void, not demur-
rable on the ground of a misjoinder of causes of action.

See ELLERSON v. WESTCOTT.

Of parties.

See PARTIES.

MISREPRESENTATION :

See FALSE REPRESENTATION.

MONEY RECEIVED - Receipt of the money must be shown — ratification
established by accounts stated.] George F. Comstock, who died in September,
1892, was the treasurer of the Union Coarse Salt Company and of the West-
ern Coarse Salt Company, and was the president of the American Dairy
Salt Company. His administrator brought an action for moneys alleged to
have been advanced by him to the defendant, the Union Coarse Salt Com-
pany, and the latter interposed a counterclaim. Upon the trial of the
action it appeared that, on the 14th day of November, 1887, a bank loaned
the defendant $10,399.12, by its check payable to the order of Geo. F.
Comstock, Treas." This check was indorsed by "Geo. F. Comstock, Treas,”
then by
Geo. F. Comstock, Jr.," who was president of the defendant, and
then by "Thomas Molloy, Treas.," who was treasurer of the American
Dairy Salt Company, and was then credited by the latter company to
the defendant. After that time and up to March 5, 1888, the defendant
received from the American Dairy Salt Company $10,551.62, of which
amount only $4,655.51 appeared in the account of the treasurer of the defend-
ant, the balance being found in the treasurer's account of the Western Coarse
Salt Company.

54

87

128

389

The defendant, by its counterclaim, first claimed as for money had and
received, and separately alleged a conversion of the loan of November 14,
1887, in that, without right, Comstock loaned the money to the American
Dairy Salt Company, knowing it to be insolvent and that the corporation
failed, and that the money was lost.

Upon an appeal by the plaintiff from a judgment entered upon a decision
to the effect that the facts stated constituted a conversion,

Held, that, as it was not shown that George F. Comstock personally ever
had any of the moneys represented by the check of November 14, 1887, an
action for money had and received would not lie;

Semble, that, as the books of the defendant showed a settlement of the
treasurer's account on February 15, 1892, at which time a balance was due by
the treasurer of $151.64, while on February 20, 1893, they showed a bal-
ance due him of $5,076.75, the amount which the plaintiff claimed, the
silence of the defendant, until the latter date, implied a ratification of the
act of the plaintiff or prior authority to him to act as he did;

That, as the books showed that, on or before March 5, 1888, the full
amount due by the American Dairy Salt Company had been repaid to the
defendant, the latter had not been damaged, and a finding that Comstock
had converted the check was erroneous;

That the fact that, by some arrangement, a part of the repayment had
been turned over to the Western Coarse Salt Company did not affect the
state of the account between the defendant and the American Dairy Salt
Company. FOWLER v. UNION COARSE SALT CO..

Money paid by mistake-agent of a deceased person may prove his
declarations- indirect testimony as to transactions with a decedent.

See KETCHUM v. HOLDEN..

MORTGAGE - Foreclosure by advertisement statute to be strictly followed.]
1. A compliance with the statutory requirements relating to foreclosure by
advertisement is a condition precedent to a valid sale under the power con-
tained in the mortgage; such requirements have the same effect as if they
were incorporated into the mortgage.

A person claiming title under a foreclosure and sale by advertisement
assumes the burden of showing that the statutory requirements were complied
with. VAN VLECK v. ENOS..

2.

Defective affidavits.] Where the affidavits relating to such a sale, had
in 1869, fail to show that the clerk entered in the book in which notices of fore-
closure and sale were affixed, at the bottom of the notice, the time of receiv-
ing and affixing the same or that he subscribed it or that he indexed the
notice under the name of the mortgagor, the affidavits are materially defect-
ive and show no title in the purchaser. · Id.

3. Before whom verification of affidavit of sale may be made.] Where the
statute enumerates the officials who are authorized to take the affidavit of the
person who acted as auctioneer at the sale, no person other than one of such
officials has power to act in the premises. Id.

4.

Common-law proof of sale.] A sale in foreclosure by advertisement
may be shown to be valid by common-law proof, but such proof must posi-
tively establish all the facts required by the statute to be stated in the
affidavit of sale. Id.

5. What makes a person merely a mortgagee — as such he cannot bring an
action of ejectment - what title passes upon an administrator's sale of real estate
- proof of bona fides by a purchaser.] In an action of ejectment it appeared
that the plaintiff's title grew out of the following facts: Dewitt C. Enos,
owner of the premises in question, had given a mortgage upon them which
was unpaid at the time of his death; that an agreement was made between
the widow of Dewitt C. Enos, her father, Alanson Trask, and the defendant
Emilus C. Enos, by which the mortgage was to be purchased by the widow
and Emilus. foreclosed, and the title transferred to some other person for
the purpose of divesting the title which the infant children of the decedent
had in the premises. The mortgage was purchased and assigned to Alanson
HUN-VOL. LXXXVIII. 85

PAGE.

416

482

348

MORTGAGE — Continued.

Trask who foreclosed it by advertisement. The premises were sold in 1869,
and bid off by Eneas E. Enos (a son of the defendant Emilus J. Enos), under
an agreement made between himself, Emilus J. Enos and Alanson Trask,
by which Eneas E. was to bid off the premises for Emilus J., execute a mort-
gage to the widow for her advances, retain the title as security for his own
and upon repayment convey the premises to his father, Emilus J. Enos. The
mortgage was executed to the widow, but Eneas E. Enos never conveyed to his
father, who remained in possession of the premises until the commencement of
the present action of ejectment.

PAGE

In December, 1886, Emilus J. Enos made a general assignment, and in
September, 1887, his assignee sold his interest in the premises to the children
of Dewitt C. Enos, who are defendants. They received a deed conveying
such interest October 29, 1887, which was recorded January 6, 1888.

Eneas E. Enos having died in November, 188C, insolvent and without heirs,
proceedings were taken in a Surrogate's Court to sell his real estate for his
debts and funeral expenses, and the promises in question were sold to the
plaintiffs in March, 1888, and the deed of the administrators to them was
recorded April 18, 1888.

Thereafter the plaintiffs brought an action of ejectment and recovered a
verdict for the possession of the premises in question.

Held, that under the agreement by which Eneas E. Enos purchased the prem-
ises his interest was only that of a mortgagee entitled to be repaid his
advances, and that he could not have maintained an action of ejectment;

That the sale of the premises by the administrators of Eneas E. Enos to the
plaintiffs conveyed only the interest which the decedent had in the premises
at the time of his death, which was that of a mortgagee;

That even should it be assumed that a purchaser in good faith could cut off
the equities of Emilus J. Enos and those claiming under him, and acquire a
better title than Eneas E. Enos had at the time of his death, the plaintiffs
had not upon all the facts of the case, shown themselves to be purchasers in
good faith and without actual or constructive notice. Id.

6.

Chattel_mortgage to secure an accommodation indorser — when the
right to enforce the mortgage accrues.] A firm gave to their accommodation
indorser, John T. Baxter, as security and by way of indemnity, a chattel
mortgage upon their stock of goods, which provided that if judgment was
recovered or execution was issued against the mortgagors, or if they should
sell, assign, secrete or remove any of the mortgaged property, the indebted-
ness should at once become due, the liability of the indorser should become
fixed, and that after paying the indebtedness he should be entitled to imme-
diate possession of the property; it further provided that if the mortgagee
should at any time deem himself in danger of having to pay said indebted-
ness, or any part thereof, by delaying until it was due, he was cuthorized
after paying it to take immediate possession of the property and to sell it.

The note in question was indorsed by Baxter, was discounted by a bank
and was by it before maturity transferred to John B. Smith, to whom the
mortgage was also assigned; thereafter a judgment was recovered against
the mortgagors, and an execution was levied on the property in question.

The mortgagors were disposing of the property by sale and had given a
second mortgage upon it. Smith, deeming his debt unsafe, threatened to
take possession under his mortgage, whereupon this action was brought to
restrain him from so doing.

Held, that the action could not be maintained;

That when Smith paid the bank for the note he had, within the meaning
of the mortgage, paid the indebtedness, and deeming the latter unsafe had a
right to enforce the mortgage, which was not merely an indemnity to the
mortgagee, but also a collateral security for the payment of the debt.

GRANT v. SMITH....

Equity-trust mortgage executed by a corporation — a stranger cannot
question the irregular appointment of a trustee — notice of the exercise of an
option to declare due all the bonds secured by a mortgage is an executive duty not
requiring a resolution of the board of directors— confirmation by the board-a
mortgage covering after-acquired personal property of a corporation
power to
mortgage it — effect of recording the mortgage— rule as to fixtures between mort-
gagee and bondholders — what are fixtures— necessity of proof that the property

32

MORTGAGE - Continued.

-

was subsequently acquired — property necessarily consumed in the conduct of a
business-discretion of the court in taking property from one receiver and trans-
ferring it to another.

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

Liability of one purchasing a part of premises and promising to pay a
mortgage upon the whole to one purchasing another part—one who seeks to
enforce the liability must have paid the debt.

See QUINN v. JENKS

PAGE.

Mortgage to A. providing for the payment of an annual sum to him for
life and on his death a certain sum to B. and C.-the destruction of the mort-
gage by A. is a revocation of the gifts to B. and C.

569

428

See BEEMAN v. BEEMAN..

14

Instrument in writing — when it is a bill of sale and not a chattel

mortgage.

See WHEELER v. EASTWOOD..

160

Amendment of a complaint upon the trial — extent of such an amendment
authorized in a mortgage foreclosure suit.

See SCHOONMAKER v. BLASS...

179

MOTION- For a new trial.

See NEW TRIAL.

Extra allowance · -an application therefor must

MOTION AND ORDER

be made to the court before which the trial was had—rule, 44, General Rules of
Practice its violation, if not objected to, disregarded on appeal.

-

See WILEY v. LONG ISLAND R. R. Co...

Application for a discovery of books and papers — after its denial a refer-
ence to determine whether the defendant can produce them is improperly ordered —
the order therefor affects a substantial right.

177

See FRANCIS v. PORTER.....

325

appeal.

Decision of the Special Term on conflicting affidavits not disturbed on
See VAN KEUREN 2. VAN KEUREN..

450

The sufficiency of a pleading will not be determined upon a motion for
leave to serve it.

See PADDOCK V. BARNETT....

MUNICIPAL CORPORATION - City of Binghamton-street opening —
rights in the award of parties interested.] 1. The language of section 4 of
title 7 of chapter 214 of the Laws of 1888 (the charter of the city of Bing-
hamton), directing the commissioners appointed in proceedings for the open-
ing of streets to ascertain and award to the respective owners of the prop-
erty to be taken and to all persons or corporations interested therein such
damages therefor (after deducting the benefits to the adjoining lands) as in
their opinion shall be a just compensation for the property so taken, con-
sidered in connection with the general provisions found in the statute, indi-
cates that all the property rights of the owners are to be acquired, and that
the award to be made shall include compensation not only for the principal
ownership but also for all interests in the property.

At the time an award is made for property taken for the purposes of open-
ing a street the persons holding mortgages or other liens upon such prop-
erty are interested therein, although they are not in form made parties
to the proceeding. It is to be supposed that as the proceedings are of a pub-
lic character, and notice thereof is required to be published as prescribed by
statute, persons having interests in the property are apprised of the proceed-
ings, although they do not in form appear therein.

The language of section 10 of title 7 of such act, construed in connection
with the language of section 4 thereof, indicates that all persons interested in
the premises sought to be acquired are interested, or are assumed to be inter-
ested, in the distribution of the award which is intended to work a cancellation
or extinguishment of the ownership or interest in the property acquired,
and it does not follow, because the commissioners omit to specify in detail the
persons to whom the damages awarded by them belong, under all the facts

381

MUNICIPAL CORPORATION — Continued.

and circumstances relating to the property taken, or because they in terms
award the damages to specified persons who own the fee in the premises,
that the rights of other persons interested therein were ignored or cut off.

When land is taken for public use the damages awarded take the place of
the land in respect to all the rights which are dependent upon it and inci-
dent to it, and it may be said that in equity the award represents that por-
tion of the land or the interest therein taken by virtue of the condemnation
proceedings. PATTERSON . CITY OF BINGHAMTON.....

2. · Notice of recorded incumbrances.] Where lands taken for the pur-
pose of opening a street in the city of Binghamton are incumbered, at the
time of the institution of the proceedings for such street opening, by a
mortgage which has been recorded, and remain so incumbered, the city is
presumed to have notice thereof. Id.

-

3. Recovery of an award.] Where the common council of the city of
Binghamton directs that the amount of an award, made by commissioners
for property taken for the purpose of opening a street in such city, shall be
paid to the clerk of the county of Broome, as the clerk of the Supreme
Court, and such payment has been made, all persons who assert a claim to
the amount awarded are limited to the remedy prescribed in section 10 of
title 7 of the charter of the city of Binghamton (Chap. 214 of 1888), to wit,
an application to the court held in the county of Broome, for directions for
'the payment over on the ascertainment of the person entitled thereto,"
and an action against the city to recover the amount of the award is not
maintainable. Id.

4. Designation by a common council of the land to be taxed for a contem-
plated improvement, when invalid.] Where, after a fair examination by the
common council of a city, in a matter within its jurisdiction, of the vari-
ous properties that might be benefited by a contemplated improvement, it
designates certain ones to be taxed and relieves others, its conclusion, if not
fraudulent, must stand; but where the common council, in effect, makes no
such examination and casts the burden upon a single piece of property
with the purpose of enforcing some extraneous right or duty claimed to exist,
but in no way connected with or enforcible by the statutory proceedings
in which it is engaged, and excludes other properties, which from the facts
and surroundings must of necessity be benefited by the improvement, it
proceeds upon wrong premises, and its proceedings and the assessment
growing out of them are invalid.

It is only when city officers have jurisdiction of the subject-matter and
conduct their proceedings in a manner consistent with the statute that their
proceedings are conclusive.

Chapter 326 of the Laws of 1880, like all other statutes, should receive a
reasonable construction, and it is not intended thereby to impose the duty
upon the railroad company therein named, in constructing crossings over the
streets of the city of Rochester, of building structures that will withstand
the enormous weight of the cars of an electric street railway having a
weight greatly in excess of that of the vehicles that would ordinarily pass
over the streets of such city.

5.

PEOPLE EX REL. W. N. Y. & P. R. R. Co. v. ADAMS......

Certiorari to review an assessment, when not affected by the transmis-
sion of an assessment roll.] Although an assessment roll passes into the
hands of the treasurer of the city of Rochester, before a certiorari is obtained
to review the same, the common council of such city and its assessors may
be compelled to reverse their action if they have committed an error, since,
under the charter of such city, its common council has the power, at any time
after the confirmation of the assessment roll, to reconsider its action in the
premises and proceed de novo.

Where it is shown upon the return to a writ of certiorari that, in the
imposition of a tax, the officers of a city proceeded upon a wrong basis;
essentially failed to comply with the statute which they invoked in making
their determination in relation to the subject-matter; did not pursue the
matter in the mode required by law, and violated the law to the prej-
udice of the relator, the assessment and all of the proceedings leading
up to the same will be vacated and annulled. Id.

PAGE.

272

122