The index to this volume and the catch-lines at the beginning of the head-notes are framed in accordance with the system employed in the current digests of the reports of this State, and give the topic and the various subdivisions of the topic to which each case is referable.

THE

MISCELLANEOUS REPORTS

OF THE

STATE OF NEW YORK.

COMMENCING FEBRUARY, 1911.

CORA NEWMAN, Plaintiff, v. GEORGE T. STEWART and RALPH W. THOMPSON, Defendants.

(Supreme Court, New York Trial Term, February, 1911.)

Under section 316 of the Public Health Law, permitting hospitals to deliver corpses to medical colleges with the assent of "relatives or friends," a post-mortem examination of the body of one who died in a hospital must be consented to by relatives, but, if after reasonable inquiry no relative can be found, the assent of "friends" will suffice.

Where it does not appear what, if any, effort was made to discover the relatives of one who died at a hospital beyond the fact that the name of a woman was entered as "friend" in the hospital records, a post-mortem examination made in reliance on her consent is not a compliance with section 316 of the Public Health Law.

ACTION to recover a penalty for the violation of section 316 of the Public Health Law.

Jacob Friedman, for plaintiff.

A. R. Watson, for defendant.

FORD, J. Under section 2213 of the Penal Law, dissection of a human body may be performed with the consent of the husband, wife or next of kin. This is extended by section 316 of the Public Health Law so as to permit

Supreme Court, February, 1911.

[Vol. 71.

hospitals to deliver corpses to medical colleges with the assent of "relatives or friends." A reasonable construction of this provision is that the consent of relatives must be obtained, if they can be found, and that reasonable inquiry must be made to find them. Only in case they cannot be found will the assent of "friends" suffice. The evidence in this case did not disclose what, if any, effort was made to discover the relatives of the deceased, beyond the fact that the name of a woman was entered as friend" in the hospital records. Her consent was obtained and the post mortem examination made in reliance upon it. a compliance with the law and the motion to set aside the verdict and for a new trial must be denied.

Motion denied.

This was not

HENRY E. FISH, Plaintiff, v. ANSTEY CONSTRUCTION COMPANY et al., Defendants.

(Supreme Court, Kings Trial Term, February, 1911.)

Mechanics' liens: Notice of lien

Statement as to ownership; Amend

ment: Priorities-Prior mortgage.

One filing a notice of mechanic's lien is put upon inquiry as to the true owner of the premises and a notice filed only against a vendee in possession under an executory contract of sale acquires no lien upon the vendor's interest; nor can the court upon the trial of an action to foreclose a mortgage claimed to be prior to the mechanic's lien permit an amendment of the notice of lien so as to claim against the vendor or the holders of mortgages on the property.

In such a case, mortgages given by the vendee to the vendor upon closing the contract of sale and which represent the same indebtedness as antecedent mortgages that are then discharged pursuant to the terms of the contract are prior to the mechanic's lien.

ACTION to foreclose mortgages.

G. H. Brevillier, for plaintiff.

Misc.]

Supreme Court, February, 1911.

Sidney F. Strongin (G. M. Moscowitz, of counsel), for defendant Dangler.

M. V. Dorney (G. M. Moscowitz, of counsel), for defendant Trudder.

PUTNAM, J.

Action to foreclose mortgages on seventeen lots on East 8th street, Brooklyn.

In 1905, two mortgages were placed on a tract of land including the lots here involved; one dated April 5, 1905, to Edward L. Swift, for $25,000, and the other dated November 13, 1905, to Michael L. McLaughlin, for $8,200, which was subsequently reduced to $6,200.

In January, 1908, Lake Shore Realty Company, incorporated under the laws of New York, purchased this property subject to the two mortgages above mentioned. About May, 1908, the holders of said mortgages threatened to foreclose. As the Lake Shore Company was then unable to meet this demand, certain of the stockholders of that company, individually, advanced the funds necessary to purchase said mortgages, and, in May and July, 1908, had them assigned to plaintiff, who executed two declarations of trust in favor of the contributors to this fund in proportion to the amount of their respective contributions.

The Lake Shore company, on August 31, 1909, entered into an agreement with defendant Anstey Construction Company, which provided for the sale to said defendant of the tract comprising these seventeen lots at the price of $950 for each lot, payable $150 in cash, and the balance in stated installments, to be secured by purchase-money mortgages. The Anstey company was, however, to erect upon each of the several lots a house as described. The Anstey company was to get a building loan to be secured by mortgage upon said lots and buildings, which should be given a priority. The above cash payment of $150 was to be paid out of the first installment on the building loan, and, upon receiving such payment, a full covenant deed of the several lots should be executed by the vendor. The title to all or any of the lots could be taken by the Anstey company, at any time, upon