Page images


self, and, apparently, never re has no jurisdiction to entertain an ceived any further attention or appeal from an order of the masupport from her husband after

rine court, except it be an order her separation from him:

granting a new trial (old Code, Held, that, under such circum secs. 34, 352, 354; sec. 9, chap. 545, stances, her earnings belonged to Laws of 1874; sec. 43, chap. 479, her, and were recoverable by her, Laws of 1875). (Bamberg agt. and not by her husband. (Pursell Stern, 76 N. Y., 555.) agt. Fry, ante, 317.)

2. Accordingly, held, that an order 2. The statutes of 1860 and 1862, as

of the general term of the marine to married women, have not alter.

court, granting a perpetual stay ed the common-law liability of the

of proceedings, was not appealhusband for the personal torts of able to the common pleas. (Id.) his wife, but when such torts are committed in the management and control of her separate prop. erty the rule is changed, and she MECHANIC'S LIEN. only is liable. (Lansing agt. Holdridge, ante, 449.)

1. In an action by a subcontractor

to enforce a lien claimed to have 3. The wife is liable in the same been acquired under chapter 478

manner, and to the same extent, of 1862, providing a mechanic's for frauds or torts committed in

lien law for the counties of Kings the management of her property, and Queens, the owner is entitled as she is upon contracts relating to be allowed for all payments to it. (Id.)

made to the contractor, although

made in advance of the terms pre4. Where the wife of H. owned a house, which was insured and was

scribed by the contract, if made occupied by N. as a tenant; the

without fraud or collusion, and

before notice of the filing of a wife set fire to it in the night and

lien under said act. it burned down, and the tenant's

(Post agt.

Campbell, 18 Hun, 51.) furniture was destroyed; H. was temporarily absent from home in a neighboring state, and was in no manner connected with her act;

MISJOINDER. suit was brought by N., to recover for his damages against the 1. A misjoinder of parties plaintiff wife, a daughter that was with is not a ground for the dismissal her at the time of setting the fire, of the complaint, as to all the parand H., the husband:

ties plaintiff, if either has a good Held, that H., the husband, was cause of action. (Enos agt. Leach, not liable. That the plaintiff's 18 Hun, 139.) damages resulted as a consequence of the tort committed by the wife 2. The objection of misjoinder of in the management of her separate estate, and for these damages she

parties plaintiff should be raised

by answer or demurrer. (Id.) may now be sued alone, and she holds her property as though "husbandless,from which to respond for the damages. (Id.)


1. A misnomer or misdescription of NEW YORK).

a legatee or devisee, whether a

natural person or a corporation, 1. The court of common pleas of will not invalidate the provision

the city and county of New York if, either from the will itself or


evidence aliunde, the object of the in question was recorded in Autestator's bounty can be ascer gust, 1878. It was made subject tained. (Leonard et al. agt. Daven "to two mortgages on said premport, ante, 384.)

ises, amounting in the aggregate to the sum of $5,000.” The first

of the said two mortgages was one MORTGAGE.

for $4,000, which is not in ques

tion here, and there was no other 1. K. conveyed to N. certain lands mortgage except the one in quesfronting on One Hundred and

tion on this house. In September Twenty-first street, in the city of

following the conveyance in quesNew York, at an agreed price.

tion, the last of the agreed adAt the same time it was agreed vances was paid. The purchasers between them that N. should erect

of the house in question claim : eleven houses on said lands, and

1st. That the releases executed by that K. should advance, from time

K. of the ten other houses opeto time, as the houses progressed,

rated as a discharge of their house. to N. certain moneys towards their

2d. That the receipt by him of the erection, for which advances it ten separate mortgages on the othwas further agreed that K. should

er houses, which, in the aggregate, receive from it a mortgage on each

were for a larger sum than the of the eleven houses for one-ele

original mortgage, but were less venth part of the money so ad

by the sum which was the proporvanced Afterwards, when part

tionate share of the premises in of the moneys so to be advanced

question, and which is sought to had been paid, N. executed to K.

be recovered of the advances a mortgage on the whole of said made, if the last payment made property to the amount of the ad subsequent to the date of the deed vances that had then been made. to the grantees of the premises in This mortgage, it was agreed,

question was deducted from the should be held as security till all

aggregate amount of said ten the advances should have been

mortgages: made, and till the eleven separate

Held, that the mortgage was a valmortgages should be executed.

id and subsisting lien on the premSubsequently the whole of the ises in question for the amount agreed advances having been

claimed, to wit, the proportionate made, eight of the houses were

amount of the advances made, desold by N. to various parties

ducting the amount of the last (among them the premises in ques

payment on account of the ad. tion), on each of which, except

vances from the aggregate of the the premises in question, the re

separate mortgages, and deductspective purchasers executed a ing the remainder from the gene mortgage (which was transferred ral mortgage left the sum claimed to K.) for the proportionate amount

as due.

(Kendall agt. Niebuhr, advanced by K., who thereupon

ante, 156.) released his prior mortgage as to such house. N. also executed like 2. The general rule that after alienmortgages on the remaining three ation of a part of the mortgaged houses, whereupon K., in like premises the remainder becomes manner, released his lien as to primarily liable for the whole those, so that the entire prior mortgage and that the portions mortgage was released, except as alienated are liable only in the to the house in question, and that inverse order of alienation, and was sought to be charged only for then only to the extent remaining its proportionate amount of such due when the premises precedently advances under the first mortgage. liable have been exhausted is fully The conveyance of the premises recognized. (Id.)


3. But the rule of charging lands in constituted an equitable mortgage

the inverse order of alienation or and gave K. in equity an equitable holding a portion remaining ap lien which could be enforced parently covered by a mortgage against subsequent purchasers to discharged in consequence of the the extent actually due under it. release by a mortgagee with do (Id.) tice of other portions which were primarily liable is a mere rule in equity The release to a subse MORTGAGE FORECLOSURE. quent purchaser is not a technical discharge of the lands previously 1. Where three actions of foreclosure conveyed. Neither is it an equi had been commenced, the defendtable release or discharge, unless ants being the same in each, the upon the principles of natural mortgage in the first action coverequity and justice it ought thus to ing fifty acres of land which, after operate. (Id.)

the execution of this mortgage and

the two mortgages affected by the 4. A mortgagee is not bound, at his second action, had been sold to L.

peril, to ascertain if the mortgaged D., one of the defendants; the two premises have been aliened or mortgages in the second action mortgaged subsequent to his mort covered 150 acres, embracing the gage before releasing a part of the lands affected by the mortgage in mortgaged premises. Recording the first action; the mortgage in a conveyance is not notice to him; the third action covered 100 acres, it is notice only to subsequent pur being part of the land affected by chasers in good faith and for a the mortgages in the first and sec, valuable consideration. (Id.) ond action, and excluding the

portion sold to the defendant L. 5. Where a mortgagee, before re D.; on motion to consolidate the leasing part of his mortgage secu

three actions: rity, employs an attorney to search Held, that the motion could not the title and prepare the release be granted for the following reaand such attorney found of record certain conveyances, such knowl First. The authorities are against edge is equivalent to knowledge it (6 Abbott's New Cases, 69). by the mortgagee even if the at Second. The proceedings are, in torney failed to communicate such rem, against different pieces of information to his client. (Id.) property, and there is no reason

why one parcel should bear bur6. R., under his contract with N. was

dens in the way of costs which compellable to execute the release belong to another. upon recovering the separate mort

Third. Rights of individual degages. The record of the mort

fendants differ, and one defendant gage covering the whole of the should not bear that which beeleven houses was notice to the

longs to another. (Kipp agt. Delapurchasers of the premises in ques

mater, ante, 183.) tion of a lien which, under certain circumstances, might have been enforced against this lot for its MORTGAGOR AND MORTentire amount. If they had not

GAGEE. notice of the contract between K. and N., they were put upon their 1. Where the mortgagor conveys to inquiry in regard to it and by due a third party, who assumes the diligence could have ascertained mortgage, the relation of princiits terms. (Id.)

pal and surety arises between the

mortgagor and his vendee, and 7. The contract between K. and N. after notice of this relation the



mortgagee is bound to observe it 5. In the absence of any notice of and abstain from doing any act to change in the position of the the prejudice of the mortgagor, mortgagor, and of any request to or which would impair his re foreclose, a mortgagee out of poscourse against the mortgaged session may rely upon the personal premises in case he should be liability of his debtor, and is not obliged to pay his bond and be bound to look after or protect the subrogated to the mortgagee; the mortgaged premises ; and if he mortgagee in such a case, after foreclose the mortgage, the debtor notice, cannot, with impunity, re is entitled to credit only for the lease the land or extend the time net proceeds of sale realized by of payment, or do any other act his creditor, after the deduction to the prejudice of the mortgagor, of all liens for taxes, &c., and reand the prohibited acts are deter mains liable for the deficiency. mined by the law of principal and (Id.) surety. (Marshall and Miller agt.

Davies and others, ante, 231.) 2. But the actual relation of debtor

MOTIONS AND ORDERS. and creditor between the mortga- | 1. There is no absolute right to gor and mortgagee cannot be destroyed by any act of the mort

notice of eight days on enumerated

motions. A shorter notice may gagor alone, where the mortgage is given to secure the bond of the be prescribed by a judge or court, mortgagor. (Id.)

under section 780 of the Code, and Rule 37 of the supreme court.

The exercise of this power is sub3. In cases like the present the rela

ject to review. (The People ex rel. tion of creditor and principal debt

The Mayor agt. Nichols, ante, 200.) or is so affected that the mortgagee is bound, after notice of the equitable rights of the mortgagor,

2. Bringing on for hearing a certioraas between himself and vendee, to

ri upon the return thereto, is like respect them and do no act to

& motion for judgment on the their prejudice, and when he fore pleadings, on the ground that the closes the equities of the mort

answer raises no issue of fact, and gagor will be protected in the it would present a question of law order of sale. But the mortgagee

only. Such motion is of the class may sue upon the bond in the first called non-enumerated, as defined instance, notwithstanding the by supreme court Rule 38. (Id.) transfer of the land. (Id.)

3. Rule 44 of the supreme court, 4. Where a vendee of mortgaged which provides that a case on

premises has assumed the pay certiorari may be brought to a ment of the mortgage, the mort hearing “upon the usual notice of gagor cannot compel his creditor argument at special term,” is conto foreclose when there is no good trolled by section 780 of the Code, reason why he did not pay his which authorizes the judges to bond according to his agreement prescribe a notice of less than and take an assignment of the eight days. (Id.) bond and mortgage and proceed against the land and the subse- 4. A motion for a new trial, made quent grantees thereof for his upon the minutes of the judge indemnity. He can also proceed presiding at the trial, can only be in equity to compel such grantees, made before him at the same term as to whom he stood in the situa in which the trial was had. tion of a mere surety, to discharge (Thayer Manufacturing Jewelry the debt for his protection. (IX.) Company agt. Steinau, ante, 315.)


5. For the purposes of such motion, litigation was upon the answer of

it is not necessary to make a case. A. Plaintiff obtained judgment; The proceedings being fresh, the A. appealed, G. did not. The judge's minutes are presumed to minutes of the decision of the disclose the error, if any exists. general term were as follows: (Id.)

Judgment reversed, new trial

granted, costs to appellant to abide 6. When a motion for a new trial is the event." An order was there

made at special term, it should be upon entered reversing the judgfounded upon a case made and ment as to A. only, and directing settled according to the rules and a new trial as to her. It appeared practice of the court.

In no

by the opinion of the general term other way can it be well deter to have been its intention to remined by a judge, other than the open the whole case and to send one who tried the cause what it back for a new trial as to all the transpired at the trial and what parties interested. Plaintiff, withquestions distinctly arose. (Id.) out notice to G., discontinued as

to A. On motion of G. the gen7. An omission to move for a new

eral term modified its order so as trial on the minutes during the

to reverse the judgment in toto trial term, under section 999 of

and to grant a new trial both as the Code of Civil Procedure, can

to G. & A.: not be cured by a subsequent di

Held, that the general term had rection of the judge before whom

power to so modify; and that upthe trial was had, after the end of

on appeal to this court from the the term, that such motion be

order directing the modification made at the special term upon

the question as to the power of the minutes of the judge who pre

the general term to reverse a judgsided at the trial. (Id.)

ment against a party who had not appealed was not presented, as its

judgment was not up for review; 8. An order denying a motion to

that the question could only be set aside a judgment for deficiency

presented by appeal from the in a foreclosure suit, where the order of reversal. (Salmon agt. motion is based upon the fact that

Gedney, 75 N. Y., 479.) by a clerical error the name of the defendant against whom such judgment is rendered was omitted 11. Plaintiff recovered $1,000 against from the prayer for judgment for

H. for three libelous publications, deficiency in the copy of the com

he then brought this action for the plaint attached to the judgment

same and for two other publicaroll, is not reviewable here; it in

tions in the same newspaper, the volves simply questions of prac

five causes of action being set forth tice. (Tucker agt. Leland, 75

in separate counts, and a recovery N. Y., 186.)

of $4,000_was had upon all the counts. Pending an appeal from

this judgment the former judg9. So, also, an order denying a mo

ment was paid, and plaintiff theretion to set aside judgment of fore

upon moved to vacate the latter closure and sale because of non

judgment: joinder of a party defendant, is Held, that the motion was prenot reviewable here. (Id.)

mature. (Woods agt. Pangburn,

75 N. Y., 495.) 10. In an action to foreclose a mort

gage, A. & G. were made parties 12. The general term directed that defendant; their interests were the the judgment be set aside, that same, G. claiming as grantee of A. the three counts upon the causes They put in separate answers; the of action common to both actions

Vol. LVIII 77

« PreviousContinue »