Abraham Clark Freeman John Proffatt.

The American decisions: cases of general value and authority ..., Volume 69 online

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Who are passengers.

Cited in BufTett v. Troy & B. R. Co. 40 N, Y. 168, holding one taking his seat
in railroad car for transportation becomes a passenger although he has bought
no ticket.

Cited in note in 2 L.R.A. 166, as to who are passengers.

— iMail clerks and express messengers.

Cited in Chesapeake & O. R. Co. v. Patton, 23 App. D. C. 133, holding railway
mail clerk is a passenger for hire; Pennsylvania R. Co. v. Price, 96 Pa. 256,
38 Phila. Leg. Int. 23, 11 Pittsb. L. J. N. S. 197; Yarrington v. Delaware & H.
•Co. 143 Fed. 565, — holding under statute of Pennsylvania railway mail clerk is
not a passenger ; Brewer y. New York, N. H. & H. R. Co. 124 N. V. 59, 21 A. S.
R. 647, 11 L.R.A. 483, 26 N. E. 324; Voight v. Balitmore & O. S. W. R. Co. 79
Fed. 561, — holding express messenger carried under contract with express com-
pany passenger for hire.

Cited in note in 61 A. S. R. 99, on mail agents or postal clerks as passengers.
— i Ticket as evidence of contract.

Cited in Ripley v. New Jersey R. & Transp. Co. 31 N. J. L. 388, as to ticket
l)eing evidence of contract.

Cited in reference notes in 81 A. D. 338; 90 A. D. 680; 82 A. D. 290,-
on payment of fare as affecting liability of carrier of passengers.
Foundation of duty of carrier.

Cited in Carroll v. Staten Island R. Co. 58 N. Y. 126, 17 A. R. 221; White-
iouse V. Grand Trunk R. Co. 2 Haskell, 189, Fed. Cas. No. 17,565,— holding

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it rests upon obligation of law and not upon contract; Sanford v. American
Dist. Teleg. Co. 13 Misc. 88, 34 N. Y. Supp. 144; Boniface v. Relyea, 5 Abb.
Pr. N. S. 259, 6 Robt. 397, 36 How. Pr. 457; Wells v. New York C. R. Co.
24 N. Y. 181 (dissenting opinion),— on same point.
Xiabillty of carriers for injuries.

Cited in reference notes in 75 A. D. 106, on liability of passenger carriers for
negligence; 75 A. D. 310, on extent of railroad company's duty to prevent ac-

Cited in note in 6 L.R.A.(N.S.) 722, on degree of care owed to passenger
in absence of stipulation upon the subject.
— ^To passengers carried free.

Cited in Siegrist v. Amot, 10 Mo. App. 197, holding it is bound to exert
the measure of care and skill appropriate to the employment; Higley v. Gilmer,
3 Mont. 90, 35 A. R. 450, holding ordinary CAre only is required toward "dead
heads" and trespassers; Flint & P. M. R. Co. v. Weir, 32 Mich. Ill, 26 A. R.
499, as to degree of care required of carriers- in transporting free passengers;
Perkins v. New York C. R. Co. 24 N. Y. 196, 82 A. D. 281; Bissell v. Michigan
S. & N. I. R. Co. 22 N. Y. 258, — as to liability of carrier to persons riding free ;
Littlejohn v. Fitchburg R. Co. 148 Mass. 478, 2 L.R.A. 502, 20 N. E. 103, as to
liability of carrier to child riding free.

Cited in reference notes in 75 A. D. 789, on liability of carrier for injury to
person carried gratuitously; 80 A. D. 52, on carrier's liability for negligent
injury to free passenger.

Cited in note in 2 L.R.A. 522, on liability of carrier where service is gratuitous.

— To one neither passenger nor employee.

Cited in reference notes in 85 A. D. 412, on liability of railroad to one neither
passenger nor employee for injury; 87 A. D. 607, on liability of passenger
carrier for injury to trespasser or one not employee or servant; 90 A. D. 56, on
liability of railroad for injury to one neither passenger nor employee.

— Care due towards mail clerks and express messengers on train.

Cited in Houston & T. C. R. Co. v. Hampton, 64 Tex. 427; Seybolt v. New
York, L. E. & W. R. Co. 95 N. Y. 502, 47 A. R. 75,— holding railroad owes
same degree of care to mail agents riding in postal cars in charge of mails as it
does to passengers; Blair v. Erie R. Co. 66 N. Y. *13, 23 A. R. 55, holding same
rule applies to express messengers; Carpenter v. Boston & A. R. Co. 97 N. Y.
494, 49 A. R. 540, as to liability of carrier for injury to mail clerk.

Cited in reference note in 47 A. R. 84, on carrier's duty to railway mail

Cited in note in 19 L.R.A. 340, on liability of railroad company for injury
received by postal clerk on train.
Contract to carry malls as inuring to mail clerk.

Cited in Seybolt v. New York, L. E. & W. R. Co. 31 Hun. 100 (dissenting
opinion), as to right of mail clerk or representatives to avail himself of con-
tract between government and carrier in action against carrier for injuries or
liimitatlon of carrier's liability.

Cited in notes in 82 A. D. 292, on exemption of passenger carrier from liability
by contract; 5 A. S. R. 728, on notices restricting liability of carriers of passen-
gers for tort or negligence.

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To free passengers.

Cited in Jacobus v. St. Paul & C. R. Co. 20 Minn. 125, Gil. 110, 18 A. R. 360,
31 Phila. Leg. Int. 277, holding carrier liable to one riding on free pass with
conditions on the back thereof exempting it from liability, for injuries received
through its gross negligence; Kinney v. Central R. Co. 34 N. J. L. 513, 3 A.
R. 265, holding contract that in consideration of free passage a passenger will
assume the risk of injuries to his person from the negligence of the servants
of the railroad company, is valid; Smith v. New York C. R, Co. 29 Barb. 132,
holding stipulation on back of drover's pass providing that persons riding free
to take charge of stock do so at their own risk or personal injury from what-
ever cause did not exempt carrier from liability for gross negligence or for want
of ordinary care; Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1, 2 A. R.
362; Pennsylvania R. Co. v. Henderson, 51 Pa. 315, 23 Phila. Leg. Int. 284,—
holding stipulation on back of drover's pass exempting carrier from liability for
injury to person or property did not exempt carrier from liability for injury to
person caused by its negligence; Ashmore v. Pennsylvania Steam Towing & Transp.
Co. 28 N. J. L. 180, on the disability of a carrier to contract against his own
liiability of carrier transporting htiggm^ free.

Cited in Flint & P. M. R. Co. v. Weir, 37 Mich. Ill, 26 A. R. 499, holding it
held to no greater diligence than any other gratuitous bailee.

Distinguished in Burkett v. New York C. & H. R. R. Co. 24 Misc. 76, 53 N. Y.
Supp. 394, holding carrier not liable for theft of trunk whose carriage was
procured by fraud.
Rights at railroad grade crossings.

Cited in reference note in 90 A. D. 60, on relative rights of railroad oom-
pany and travelers at grade crossings.
Necessity of pleading degrees of negligence.

Cited in Rockford, R. L & St. L. R. Co. v. Phillips, 66 111. 548; Ohio & M.
R. Co. V. Selby, 47 Ind. 471, 17 A. R. 719; Louisville A N. R. Co. v. Mitchell,
87 Ky. 327, 8 S. W. 706, — ^holding them a matter of proof and not of averment.

Cited in note in 69 L. R. A. 610-611, on recovery of allegation of ordinary
negligence on proof of wilful or gross negligence.
Pleading conclusions.

Cited in Lyons v. New York C. & H. R, R. Co. 39 Hun, 385, holding that
engineer of train was intoxicated may be shown under allegation that he was
incompetent; Hanselman v. Carstens, 60 Mich. 187, 37 N. W. 18; Grinde v.
Milwaukee & St. P. R. Co. 42 Iowa, 376, — holding while mere abstract con-
clusions of law cannot be pleaded, yet allegations which combine the elements
' of such conclusions and also of fact may.
Standard of care required of licensor or gratuitous bailee.

Cited in West v. Poor, 196 Mass. 183, 124 A. S. R. 541, 11 L.R.A.(N.S.) 936,
81 N. E. 960, holding them only liable for culpable negligence; Edwards v. New
York & H. R. Co. 98 N. Y. 245, 50 A. R. 659 (dissenting opinion), on duty
owing by proprietors of places to wliich general public is invited.

Correlation of care to danger.

Cited in Sawyer v. Hannibal & St. J. R. Co. 37 Mo. 240, 90 A. D. 382, as to
degree of care required being in proportion to nature, difficulty and peril of the

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Negligence In failing to exercise care.

Cited in New York & N. H. R. Co. v. Schuyler, 34 N. Y. 30, as to its being
Gross negligence.

Cited in McGrath v. Hudson River R. Co. 19 How. Pr. 211, 32 Barb. 144;
Phillips y. Rensselaer'A, S. R. Co. 57 Barb. 644, — holding what is gross negligence
depends upon the particular circumstances of each case.

69 AM. DSC. 629, STOREY T. BRESmAN, 15 X. Y. 624.
Recovery of money lost at gaming.

Cited in Hendrickson v. Beers, 6 Bosw. 639, holding one who loses money
at play may assign his claim against- the winner of the money and action will
lie against the latter at suit of such assignee.

Cited in reference note in 78 A. D. 648, on validity of note for money won
at gaming.
Recovery of money from stalceholder.

Cited in Mahony v. O'Callaghan, 6 Jones t S. 461, holding under statute if
money has been paid over by stakeholder with authority, and consent of depositor
it may be recovered in action by latter against stakeholder; Lewy v. Crawford,
6 Tex. Civ. App. 293, 23 S. W. 1041, holding where parties have placed wager
on election in hands of stakeholder either party has the right to recover the money
from stakeholder before election, or when notice has been given the stakeholder
of the disaffirmance before he pays the money to the winner; Hensler v. Jennings,
62 N. J. L. 209, 41 Atl. 918, as to whether* payment to winner with uncon-
ditional consent of loser will relieve stakeholder.

Cited in reference note in 89 A. D. 603, as to whether money may be recovered
back from stakeholder's hands.
Construction of statute permitting recovery of money lost at gaming.

Cited in Luetchford v. Lord, 132 N. Y. 465, 30 N. E. 859 (reversing 57 Hun,
572, 11 N. Y. Supp. 597), holding that it is to be construed so as to accomplish
as far as possible, the suppression of gambling; Kennealy v. Leary, 67 N. J.
L. 435, 51 Atl. 475, as to statute providing for recovery of money lost at gaming
being a remedial statute.
Instructions assuming hypothesis at variance with fact.

Cited in Holmes v. Boydston, 1 Neb. 346; MacGowan v. Duflf, 14 Daly, 315;
Mark v. Hudson River R. Co. 56 How. Pr. 108; Jones v. John Kroder & Henry
Reubel Co. 96 App. Div. 140, 18 N. Y. Supp. 870; Brown v. Manhattan R. Co.
105 App. Div. 395, 94 N. Y. Supp. 190; Dean v. Tarry town, W. P. & M. R. Co.
113 App. Div. 437, 99 N. Y. Supp. 250; Decker v. Sexton, 19 Misc. 59, 43 N. Y.
Supp. 167; Spaulding v. Chicago & N. W. R. Co. 33 Wis. 582; Jackson v. Odell,
9 Daly, 371, — ^holding submission to the jury of a question of fact for a finding if
there is no sufficient evidence of such fact, is erroneous ; Rouse v. Lewis, 2 Keyes,
352, 4 Abb. App. Dec. 121, holding where there was no evidence to warrant jury
finding a waiver of the conditions of an agreement, the court was not bound to
instruct them as to the legal effect of such waiver.

Cited in notes in 72 A. D. 541, on giving abstract instructions; 13 L.R.A.
272, on nature and scope of judge's charge.
Direction of verdict.

Cited in reference notes in 90 A. D. 438, on instructing jury to find that a

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materia] fact is not proved; 95 A. D. 567, on court's duty to instruct jury that
there is no evidence to support issue; 32 A. S. R. 213, as to when verdict may
be directed; 72 A. S. R. 676, on direction of verdict.

Cited in note in 4 L.R.A. 777, on practice as to directing verdicts.
Duty of court to order non-suit.

Cited in Liddle v. Hodges, 2 Bosw. 537, holding when the court sees that a
verdict against the defendant would be without evidence, it is duty of court i»
order non-suit.
Errors reviewable on case made.

Cited in Brush v. Kohn, 14 Abb. Pr. 51, holding misdirection by the judge may
be so brought up.

69 AM. BEG. 632, PARTRIDGE ▼. GIIiBERT, 15 X. Y. 601.
Ownership in party walls and land supporting them.

Cited in National Commercial Bank v. Gray, 71 Hun, 295, 24 N. Y. Supp.
997; Cutting v. Stokes, 72 Hun, 376, 25 N. Y. Supp. 365; Dauenhauer v.
Devine, 51 Tex. 480, 32 A. R. 627; Ingals v. Plamondon, 75 111. 118, — holding
■land covered by party wall remains the several property of the owner of each
half, but the title of each owner is qualified by the easement to which the other
is entitled of supporting his building by means of the half of the wall belonging
to his neighbor; Hendricks V. Stark, 37 N. Y. 106, 93 A. D. 549, 4 N. Y. Trans.
App. 146, as to central line of party wall being boundary between adjoininj^

Cited in reference note in 50 A. S. R. 95, on party walls. •

Cited in notes in 92 A. D. 290; 89 A. S. R. 928, — on how party wall created.
Right or duty to rebuild party wall.

Cited in Reynolds v. Fargo, 1 Sheldon, 531, holding in absence of any covenant
creating the obligation, neither party is bound to rebuild it; Fleming v. Cohen,
186 Mass. 323, 104 A. S. R. 572, 71 N. E. 563, on right of either party to
rebuild party wall when necessary.

Cited in reference note in 44 A. S. R. 304, on right to rebuild party walls.

Cited in notes in 92 A. D. 293, on performance of work upon party wall:
89 A. S. R. 933-935, on right of owner of party wall to remove, rebuild, or
Right to take down deficient or unsafe party wall.

Cited in American Tube & Iron Co. v. Maypole, 44 111. App. 494, holding
when right to take down party wall, because it has become unsafe, exists, the
party who takes it down without the consent of the other must exercise reason-
able care to do his neighbor no unnecessary harm, and must furnish support
in place of wall; Partridge v. Lyon, 67 Hun, 29, 21 N. Y. Supp. 848, holding
one owner cannot remove and rebuild wall unless it is unsafe; Schile v. Brok-
liahus, 80 X. Y. 614; Crawshaw v. Sumner, 56 Mo. 517, — holding when party
wall becomes ruinous or dangerous either party may rebuild it; Dowling v.
Hennings, 20 Md. 179, 83 A. D. 645, holding that the uninterrupted enjoyment
and use of alley and alley walls for the period shown by the evidence raises the
presumption of mutual grants for such enjoyment and that one owner of wall
had no authority to interfere with alley or walls without consent of the other
unless he could do so without injury to possession of the other; Hieatt v.

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Morris, 10 Ohio St. 623, 78 A. D. 280, as to right of one owner to remove party

Cited in reference note in 78 A. D. 286, on rebuilding dilapidated party wall
by one owner.

Cited in note in 89 A. S. R. 937, on destruction of party wall.
Contributory cost and expense of party wall.

Cited in Sanders v. Martin, 2 Lea, 213, 31 A. R. 698, holding one owner who
has made additions to wall for his own convenience, is entitled to contributions
from co-owner, who afterwards uses the additions, to extent of one-half the
value of the additions at time they are thus used; Cole v. Hughes, 54 N. Y.
444, 13 A. R. 611, holding that agreement to compensate cost and expense of
party wall does not run with land where no privity of estate exists or is
created between parties; Antomarchi v. Russell, 63 Ala. 366, 36 A. R. 40, on
contribution between adjacent proprietors.

Cited in notes in 66 L.R.A. 697, on enforcement of obligation to contribute
to cost of party walls, by or against grantees or successors in title, based on
theory of implied equitable lien or charge; 66 L.R.A. 706, on enforcement by or
against grantees or successors in title of noncontractual obligation to contribute
to cost of party wall erected against nonbuilder's wish.
Easements appurtenant to party wall.

Cited in Kerwin v. Post, 320 App. Div. 179, 104 N. Y. Supp. 1005, holding
that easement of each proprietor in party wall ceases with existence of state
of things which created it; Heartt v. Kruger, 121 N. Y. 386, 18 A. S. R. 829,
9 L.R.A. 136, 24 N. E. 841 (affirming 24 Jones & S. 382, 6 N. Y. Supp. 192) ;
Hoffman v. Kuhn, 57 Miss. 746, 34 A. R. 491; Moore v. Shoemaker, 10 App.
D. C. 6, — ^holding right to lateral support exists only so long as the wall con-
tinues to be sufficient for the purpose of mutual support and the buildings
remain in a condition to require the support.

Cited in note in 19 L.R.A.(N.S.) 885, on effect of destruction of building to
terminate adjoining owner's easement of support.

Rights in use of party wall.

Cited in Normile v. Gill, 159 Mass. 427, 38 A. S. R. 441, 34 N. E. 543, holding
owner of land in building party wall has no right to leave opening in wall for
windows; DeBaun v. Moore, 22 App. Div. 485, 48 N. Y. Supp. 16, holding where
two persons severally acquire from common grantor adjoining premises separated
by party wall which contains windows overlooking premises of one grantee, the
latter, who knew of the existence of the windows at time he took the title can-
not compel other grantee to close windows, unless their existence deprives him
of beneficial use of wall to which he is entitled; Nash v. Kemp, 12 Hun, 592
(affirming 49 How. Pr. 522), holding one proprietor had no right to erect
building so as to cover front of party wall; Moody v. McClelland, 39 Ala. 45,
84 A. D. 770, as to right of part owner to have his house supported by party
Right to raise party wall.

Cited in Everett v. Edwards, 149 Mass. 588, 14 A. S. R. 462, 5 L.R.A. 110,
22 N. E. 52, holding one owner of party wall may build it to a greater height
to support an addition to his building doing no injury to his co-owner; Brooks
T. Curtis, 50 N. Y. 639, 10 A. R. 545, holding one proprietor has right to increase

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height of party wall but in making such addition he acts at his peril and if
injury results to adjoining proprietor he is liable.
Party wall as easement or incumbrance.

Cited in Schaefer v. Blumenthal, 169 N. Y. 221, 62 N. E. 175; Hendricks v.
Stark, 37 N. Y. 106, 93 A. D. 649, 4 N. Y. Trans. App. 146,— holding a party
wall cannot be deemed a legal incumbrance upon property; Com v. Bass, 43
App. Div. 53, 69 N. Y. Supp. 315, holding party wall agreement constitutes
an incumbrance when it provides for the repair and rebuilding of the wall at
the joint expense of the parties.
Lateral support.

Cited in Briggs y. Klosse, 6 Ind. App. 129, 51 A. S. R. 238, 31 N. E. 208,
holding right of lateral support is easement and if one owner interferes with
it for purpose of making improvements on his own lot without consent of
other owner, so as to injure others building, he is liable.

Cited in notes in 26 A. D. 527, on right of lateral support; 33 A« S. R. 456,
on rights of lateral support for buildings acquired by grant.
Mutual easements.

Cited in Dillman v. Hoffman, 38 Wis. 559, holding where easements ar«
mutual neither party can insist upon easement in the estate of the other^ and
at the same time obstruct easement on his own estate.
— Support of buildings.

Cited in Pierce v. Dyer, 109 Mass. 374, 12 A. R. 716, holding there is no
implied obligation between owners of distinct parts of a building, which will
enable either to maintain an action against the other for mere refusal and
neglect to repair his tenement, whereby plaintiff's part is injured; Jackson v.
Bruns, 129 Iowa, 616, 3 L.R.A.(N.S.) 510, 106 N. W. 1, holding owner of
second story of building in absence of contract has no equitable right to compel
owner of first story to repair his foundation and walls for purpose of furnishing
support for second story, where the defective condition was caused by natural
deterioration due to elements and not the fault of the owner; Shirley v. Crabb,
138 Ind. 200, 46 A. S. R. 376, 37 N. E. 130, as to whether mutual easements
for perpetual support applies to future structures.
Right to use of one's own property.

Cited in notes in 8 L.R.A. 809, on right to use of one's own property; 6S
A. D. 369, on injuries to another's property through use of one's own.

.69 AM. DEC. 642, PEOPIjE v. McCANN, 16 N. Y. 58.
Constitutionality of statutes embracing more than one subject or subjects
not expressed In the title.

Cited in Murray v. New York, 11 Jones & S. 164, holding under constitution
local statute which embraces more than one subject is void; People ex reL
Schenectady Astronomical Observatory v. Allen, 42 N. Y. 404; People ex rel.
Pratt V. Brooklyn, 13 Abb. Pr. N. S. 121, — holding under constitution the sub-
ject of a local statute must be expressed in the title; Richards v. Richards,
76 N. Y. 186; Fall Brook Coal Co. v. Lynch, 47 How. Pr. 620,— holding consti-
tutional provision requiring subject matter of act to be expressed in title only
applied to local or special acts: Robert v. Kings County, 3 App. Div. 366, 38
N. Y. Supp. 521, holding provision of constitution prohibiting acts embracing
more than one subject restricted to legislature and did not apply to resolution of

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board of supervisors; State v. Young, 47 Ind. 150 (dissenting opinion), as to
purpose of section of constitution requiring subject matter of act to be
expressed in title.

Cited in reference notes in 71 A. D. 359, on constitutionality of statutes
containing provisions not embraced in title; 73 A. D. 217, on necessity that
statute relate to but one subject which shall be expressed in its title; 74 A. D.
534, on validity of statutes embracing subjects not expressed in title; 82 A. D.
110, on constitutional provision that act of legislature shall embrace but one
subject and that expressed in the title; 90 A. D. 284, on constitutional require-
ment as to subject and title of statute; 21 A. S. R. 149, on correspondence
between title and body of act; 41 A. S. R. 311, on expression of subject of
statute in title; 41 A. S. R. 31 J, on reference to title in construction of statute.

Cited in note in 61 A. D. 343-346, as to when statutes are constitutional
or unconstitutional under provision that they shall contain but one subject to
be expressed in the title.
— General provisions in local law.

Cited in People ex rel. Akin v. Morgan, 65 Barb. 473, 1 Thomp. & C. 101,
holding when a local or private bill contains provisions which apply to whole
state, the act is valid although the title does not refer to such provisions;
Ferguson v. Ross, 126 N. Y. 459, 27 N. E. 954, holding general provision inserted
in an act containing local provisions is valid whether the subject is expressed
in the title or not; Williams v. People, 24 N. Y. 405, as to validity of act local
in many of its provisions but public in its motives and object.

Distinguished in People ex rel. Lee v. Chautauqua County, 43 N. Y. 10, holding
joining of two subjects in a bill, one public or general, and the other private or
local, will not save private matter bill from conflicting with clause of constitu-
tion which prohibits a private bill from embracing more than one subject.
—. Sufficiency of title.

Cited in Barton v. Pittsburg, 4 Brewst. (Pa.) 373, 3 Pittsb. 242, 18 Pittsb.
L. J. 44, 2 Legal Gaz. 321; Alexander v. Bennett, 6 Jones & S. 492, — holding
it is only necessary that the title express the subject of the act and not its pro-
visions: People ex rel. Crowell v. Lawrence, 41 N. Y. 137, holding bill for changing
steam underground to surface railway and for compensation to persons injured
was not double in its subject; Ballentyne v. Wickersham, 75 Ala. 533, holding
act to establish inferior court of general jurisdiction for Mobile County, and
to define jurisdiction of said court, and the criminal jurisdiction of justices of
the peace in said county expressed in title and contained in body two distinct
and independent subjects and was in violation of constitution; State v. Miller,
45 Mo. 495, holding '*an act to prevent issue of false receipts or bills of lading
and to punish transfers of property by warehousemen, wharfingers and others"
IS sufficiently in conformity with constitution; Smith v. New York, 34 How. Pr.
508, holding act providing that mayor etc., of the City of New York shall not
be liable upon any contract or expenditures etc., made by any board or oflScer
of the corporation, not expressly authorized by that act void as embracing
subject not contained in title of the act; Central Crosstown R. Co. v. Twenty-
third Street R. Co. 54 How. Pr. 168, holding statute which embodies various
different provisions relating to a common subject and having a natural although

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