Volume 163 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint should have been dismissed at the close of the plaintiff’s case, as no negligence had been proved against defendant.

<p>1. New York City—Right of Employee to Recover for Services as Notary Public. The office of notary public is not incompatible with the position of messenger or librarian in the office of the district attorney of the city and county of New York, and a notary holding such position may recover his fees as notary for services rendered at the request of the district attorney, in connection with the criminal business of the county, unless he has waived his right thereto, either expressly or impliedly.</p> <p>2. Trial—Burden of Proof. Upon the trial of an action against the ''city of New York by an employee thereof, to recover for services as a notary public, in which the defendant interposed the affirmative defense that the services were rendered voluntarily with no agreement that they were to be paid for, an instruction in substance that the burden was on plaintiff to establish an agreement that he should be paid is reversible error, since the jury should have been instructed that it was upon defendant to establish an agreement that he was not to be paid.</p>

The charter of that city provides that the mayor shall appoint four commissioners who shall constitute a board to be known as the board of street commissioners of the city of Binghamton ; that it shall have the management and control of the street department, and its powers and duties are defined.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The Drainage Act of 1895 is authorized by the Constitution of the state. (Const. of N. Y. art. 1, § 7; People ex rel. v. Bd. of Suprs., 147 N. Y. 15 ; People ex rel. v. Rice, 135 N. Y. 473; Cooley on Const.

The nature of the action and the facts, so far as material, are stated in the opinion. The conditions precedent to the introduction of the books of account were not complied with by plaintiff.

<p>1. Appeal — Presumption as to Reversal. The Court of Appeals is compelled to presume that a judgment was not reversed by the Appellate Division upon a question of fact, when the order of reversal is silent upon the subject, although the opinion of the Appellate Division shows an intention to reverse upon the facts as well as the' law.</p> <p>2. Contract—Substantial Performance—Burden of Proof as to Expense of Supplying Omissions. One who, relying upon substantial, as contrasted with complete performance of a contract, shows that he performed it except that through inadvertence he omitted to do some unsubstantial things, cannot recover anything until he shows that the things omitted, if worthy of any attention whatever, can be supplied for a comparatively small sum, in which event he can recover the contract price after deducting that sum.</p> <p>3. Material Deviations from Plan—Structural Defects. The defects caused by the failure of a building contractor to have girders of certain length and properly placed and to place a wooden partition on a brick wall in basement, as required by his contract, are structural defects which affect the solidity of the building and tend to defeat the object of the contract and are deviations from the general plan of so essential a character that they cannot be remedied without partially reconstructing the building, and hence do not come within the rule of substantial performance, with compensation for unsubstantial omissions.</p>

Appeals from judgments of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 30, 1897, affirming judgments in favor of defendants entered upon reports of a referee. The nature of the proceeding and the facts, so far as material, are stated in the opinion.

<p>Fire Insurance—Policy Forpeited by Alterations and Repairs Made Without Insurer’s Consent. Where a policy of fire insurance provides that “the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void * * * if</p> <p>mechanics be employed in building, altering or repairing the insured premises for more than fifteen days at any one time,” and alterations were made and continued by the insured, without the insurer’s consent indorsed upon the policy, for more than fifteen days, and consisted of the removal of the entire east end of the main building in which work was done, in order to connect it with the various floors of a new building erected by the insured in place of two smaller structures adjoining the main building to which the new structure was tied and bolted, the policy is forfeited, and the insured cannot recover for a loss by fire occurring while such work was in progress.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court had undoubted power to make Cohen and Scallion parties plaintiff. (Koehler v. N. Y. E. R. R. Co., 159 N. Y. 218.) Mo error prejudicial to the defendants was committed by the trial court in making Cohen and Scallion parties plaintiff to the .action, and the judgment awarded fully protected the defendants. (Pegram v. N. Y. E. R. R. Co., 147 N. Y. 135; Domschke v. Met. E. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment should be reversed and a new trial granted, because improper evidence was admitted and left to the jury upon the question of the authority of Stone, the president of the defendant, to issue warehouse certificates to himself when he actually had cotton on deposit with the defendant. (M. L. Ins.

. Appeal from a judgment of the Appellate Division of the Supreme Court in - the fourth judicial department, entered December 30, 1897, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

Applications having been made to the commissioners of taxes and assessments of the city of New York, by the Washington Building Association and twenty-one other parties, each owning separate and distinct parcels of real estate in different parts of New York city, for a reduction of the assessed valuation of their respective parcels, and hearings having been had, and the relief denied, a motion was made on behalf of all the parties for a writ of certiorari, to review such…

<p>1. Railroad — When Negligence in Oar Inspection is a Question of Pact. Where an experienced brakeman, while applying the brake upon a freight car of another company received by the defendant for transportation, is injured by the giving away of the brake chain attachment thereon, and upon examination after the accident it appeared that there were defects which rendered the parts liable to break, and there is evidence that a reasonable inspection would have disclosed such weakness, and the car had been inspected by defendant’s inspectors when received, but the condition of the brake attachment was not noticed, it is a question of fact for the jury whether the defects were discoverable or not by reasonable inspection, since a railroad company is bound to inspect the cars of another company used upon its road just as it would inspect its own.</p> <p>2. Rule as to Inspection— Car Inspectors and Brakemen are not Fellow-servants—■ Question of Fact. Where a railroad company has assumed to inspect cars at its terminus by servants especially designated for that purpose, a rule of the company that “At all stoppings of trains the brakemen or trainmen must inspect the wheels, brakes and trucks of the car and report any defects immediately to the conductor,” does not impose the duty of inspection upon the brakemen equally with the car inspectors and constitute them fellow-servants within the rule exempting the master from liability for the negligence of a co-servant, and a failure to discover defects which might constitute negligence in a car inspector does not necessarily establish contributory negligence on the part of a brakeman, but the question is one for the jury.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The title is fatally defective because the infants owning the equity of redemption were never properly served with a summons. The statute of 1853, under which the substituted service upon the infants was attempted, does not apply to infants, and is especially inapplicable to infants so young as to be incapable of an intent to avoid or evade service. (Stuyvesant v. Weil, 41 App.

This was an action to foreclose a bond and mortgage and to recover judgment for a deficiency against the defendant Louis Weill, as obligor upon the bond, if any such should arise upon a sale in foreclosure. The facts are not in dispute. The firm of Thorne & Angelí owned a plot of land in the city of Buffalo, the legal title to which was vested in Angelí, who held it for the benefit of the firm.

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 27, 1900, affirming a judgment in favor of plaintiff entered upon a verdict. This is a motion to dismiss the appeal on the ground that it is an appeal from a judgment unanimously affirming a judgment in an action uo recover damages for personal injuries. The action has been three times tried, and has been once before this court.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 20, 1897, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term, and granting a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May' 24, 1897, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 2, 1897, upon an order modifying, and affirming as modified, a judgment in favor of plaintiff entered upon the report of .a referee.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 7,1897, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 7, 1897, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, made January 9, 1900, reversing an order of the Surrogate’s Court of Westchester county adjudging William Y. Molloy, sheriff of said county, guilty of a civil contempt, and dismissing the proceedings.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 22, 1897, affirming a judgment in favor of plaintiff entered upon the report of a referee.</p>