As a municipal corporation is not an insurer of the safe condition of its streets, it is necessary to show knowledge of the defect complained of, either by actual notice or by the lapse of sufficient time to charge it with notice; but if this be shown, the fact that the direct cause of the injury is not attributable to its servants or agents, does not affect the question of its liability. (Turner v. The City of Newburgh 109 N. Y. 301).

IV. The difficulty in applying the principles enunicated, is to determine the exact character of the duty to be performed.

The preservation of the public peace and the punishment of crime; the care for the public health; for paupers and lunatics; the maintaining of public schools for education and the providing of means for protection from fire are imposed upon a municipality in its public capacity and hence it has been held that police officers, (Butterick v. The City of Lowell, 2 Allen 172), the officers of the boards of health (Jones v. The Mayor 9 N. Y. State Rep. 247), the commissioners of charities (Maximilian v. The Mayor 62 N. Y. 160), the boards of education (Ham v. The Mayor 70 N. Y. 459), and the officers and employees of the fire departments (Smith v. The City

of Rochester, 76 N. Y. 506; Terhune v. The Mayor 88 N. Y. 247) are not the officers and agents of the municipality. On the other hand the maintaining of the public parks; the providing of sewers; the supply of water and gas, if undertaken by the corporation, are duties to be performed in its private character and for its special benefit.

Hence the department of parks (Ehrgott v. The Mayor, 96 N. Y. 264), the water boards (Bailey v. The Mayor, 3 Hill 531), and persons employed in the building of sewers, (Lloyd v. The Mayor, 5 N. Y. 369), or the supply of gas (Scott v. Manchester, 2 H. & N. 204) are the servants or agents of the municipality for whose acts it is liable.

No attempt has been made to touch in any but the most general way the question under discussion.

As the wayside-cross points the highway along which one must travel if he would reach the devious cross-roads and by-paths to which it leads, so the sole object of this article has been to point out the cardinal principles leading to the varied phases of a subject which has occupied the attention of the Courts for centuries and is still a prolific source of argument.

MASTER AND SERVANT.

P. 134. The nature and extent of a master's duty towards his servants in respect to providing proper machinery, etc., are well set forth in Stringham v. Hilton, 111 N. Y. 188.

The general rule that the master owes a duty to the servant to keep machinery and appliances in order and cannot delegate this duty does not apply to defects arising in its daily use, which are not of permanent character and may be easily repaired by the workmen, and to repair which suitable materials are supplied. (Cregan v. Marston, 126 N. Y. 568.)

A railroad company is bound to guard its employees against negligence of coemployees, so far as it can, by establishing reasonable rules in the management of its business, and the rule that the employee takes the risk of the business is subject to the qualification that the company perform this, as well as other duties, to protect the employee from unnecessary hazards while employed in his work. Thus the rules should provide for the giving of some signal to indicate when men are at work under a car, so that the car may not be moved to their injury. (Abel v. D. & H. Canal Co., 128 N. Y. 662; S. C., 103 N. Y. 581.)

P. 135. Servants of different grades may be deemed co-servants, so that the master will not be liable to one for an

(Cullen v. NorO'Brien v. Amer. Spancake v. P. &

injury by the other. ton, 126 N. Y. 1; Co., 53 N. J. L. 291; R. R. Co., 148 Pa. 184.) Thus the master of a vessel has been held to be a fellow-servant with one of his seamen. (Gabrielson v. Waydell, 135 N. Y. 1.)

The case of Chicago, etc., R. R. Co. v. Ross, 112 U. S. 377, is a leading authority, supporting the contrary view. It held that the conductor of a railroad train, who has the right to command the movements of the train and to control the persons employed upon it, represents the company while performing those duties, and does not bear the relation of co-servant to the engineer and other railroad employees on the train. But this decision was rendered by a bare majority of the court, and a recent decision seems to deprive it of much of its weight as authority. (B. & O. R. Co. v. Baugh, 149 U. S. 368.) In this case it was held that the engineer and fireman of a locomotive (which was run without a conductor) were fellow-servants, though there was a rule of the company that "whenever a train or engine is run without a conductor, the engineman will be regarded as a conductor and will act accordingly."

P. 138. Valuable recent cases in regard to the liability of a master for the wrongful acts of his servant are Wyllie v.

apprehension of such injury. Thus it is cruelty if a husband confines his wife; or starves her; or withholds from her necessary support or medical attendance, which he is able to provide. Threats of injury, which are likely to be carried into effect, may constitute cruelty, though no actual violence has yet been inflicted. (Bailey v. Bailey, 97 Mass. 373.) But "an assault or stroke, a slap or slaps with the hand, in a single instance; occasional petulance of temper, rudeness of language, sallies of passion, not endangering health or safety, have been considered insufficient." (Bishop on Marriage and Divorce, I. § 1610.)

The statutes of some States require that cruelty, to be a ground of divorce, should be "extreme," or "extreme and repeated," or should amount to "inhuman treatment," etc. What ordinarily would be deemed cruelty might not, it is evident, be so regarded under these statutes.

The term "desertion," as used in the law of divorce, contemplates a voluntary separation of one party from the other, without justification and with the intention of not returning. Thus where a husband refused to permit his wife to live with him unless she would give up all intercourse with her mother, though he gave no reason for such prohibition, and, because she would not accede to this, they then separated, the court said that her act in leaving her husband could not be deemed voluntary. "It was coerced by a harsh and unnatural condition, and she was at no time unwilling to return and live with him as his wife if that condition were withdrawn." He, on the contrary, was guilty of desertion in leaving her. (Williams v. Williams, 130 N. Y. 193.)

P. 153. What is a proper allowance for

temporary alimony is considered in Beadleston v. Beadleston, 103 N. Y. 402; Merritt v. Merritt, 99 N. Y. 643.

P. 155. A leading recent decision upon the obligation of a husband to support his wife is Vusler v. Cox, 53 N. J. L. 516.

INFANTS.

P. 176. Guardianship in socage still exists in New York. It seems that the powers and duties of such a guardian,

both at common law and under the N. Y. statutes, are limited to the real estate of the ward, and to animals, implements and other personal property connected with the real estate, but do not extend to other forms of personal property. (Foley v. Mutual Ins. Co., 138 N. Y. 333.)

By Laws of New York of 1893, c. 175, every married woman is declared to be the joint guardian of her children with her husband, with equal powers, rights and duties in regard to them with the husband. Upon the death of either father or mother, the surviving parent, whether of full age or a minor, of a child likely to be born, or of any living child, under the age of 21 years and unmarried, may by deed or last will dispose of the custody and tuition of such child during its minority, or for any less time, to any person or persons.

In New York, by statute, persons who neglect to provide, according to their means, for their children, may be prosecuted criminally as "disorderly persons," and may be compelled to give security for their support. (Code Crim. Pro., §§ 899, 901; People v. Strickland, 13 Abb., N. C. 473.)

"It may now be regarded as the settled doctrine that the contracts of an infant are not absolutely void, but only voidable.

As to contracts purely executory it must be shown that the infant ratified them after he became of age before they can be enforced against him. As to contracts executed, such as deeds of land or conveyances of personal property, they will generally be deemed to be ratified, and will thus become just as valid and effectual as the contracts of an adult, unless they be disaffirmed by the infant before he arrives at age, or within a reasonable time thereafter. . . The defense of infancy is for the benefit and protection of infants, and other persons cannot set it up for their own benefit." (Beardsley v. Hotchkiss, 96 N. Y. at p. 211.)

PERSONAL PROPERTY.

P. 512. The rule that the young of domestic animals belong to the mother is followed in the case of Arkansas Cattle Co. v. Mann, 130 U. S. 69.

If an animal, as a deer, be so wounded as to be brought within the power and control of the hunter, it becomes the hunter's property. But if the animal, though wounded, is able to continue his flight and retain his liberty, and is then killed by another, the right of property is in the latter. (Buster v. Newkirk, 20 Johns. 75.)

Where bees take up their abode in a tree, they belong to the owner of the soil, if they are unreclaimed. But if they have been reclaimed, the owner retains his property in them so long as he can keep them in sight and has the power to pursue them; he cannot, however, enter upon another's land to retake them without subjecting himself to an action of trespass. (Goff v. Kilts, 15 Wend. 550.)

P. 519. The rule in New York as to what choses in action can be assigned is

stated in the Code of Civil Procedure, § 1910.

P. 520. A gift for life of perishable articles, the use of which consists in their consumption, amounts to an absolute gift of property; but if the gift be of articles which may depreciate but not necessarily wear out by using, a full title is not given, though usually the life legatee will be entitled to the possession of such articles without giving security for their preservation. Where the use of money is for life, without discretion given to consume any portion of the principal, the gift is of the interest only, and usually security must be given against loss, or a trustee be appointed of whom a bond will be required. (Whittemore v. Russell, 80 Me. 297; see Terry v. Allen, 60 Ct. 530.)

P. 532. A recent interesting case as to treasure-trove is Atty. Gen. v. Moore, [1893] 1 Ch. 676. Two men, while ferreting for rabbits, came upon certain articles of ancient silver plate, worth £70 or £80, on a man's farm. They were held to belong to the crown.

P. 537. The modern cases are declaring that there is some right of property in a dead body. Thus it is held that the right to the possession of a dead body, for the purpose of preservation and burial, belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin, and the right of the surviving wife (if living with her husband at the time of his death) is paramount to that of the next of kin. This right is one which the law recognizes and will protect, and for any infraction of it— such as an unlawful mutilation of the remains-an action for damages will lie. (Larson v. Chase, 47 Minn. 307.)