and 118 New York State Reporter v. Fidelity & Casualty Co. of New York (Sup.) | thereto.-Kirsop v. Mutual Life Ins. Co. (Sup.) 315. 95. Where, in an action by insured's administrator, insurer interpleaded the beneficiary and paid the money into court, such act constituted an admission of the validity of the policy and of the designation of the beneficiary.-Sangunitto v. Goldey (Sup.) 989. In an action on a policy claimed to have lapsed for nonpayment of premium, evidence of a custom of defendant's agents to mail renewal receipts to policy holders before the expiration of the policy, whether premiums were paid or not, held inadmissible.-O'Connell v. Fidelity & Casualty Co. of New York (Sup.) 315. Where insurer canceled a policy under a clause giving it the general right to do so, evidence tending to show that it was estopped to deny, der a policy, based on information and belief, as against the beneficiary, that the current pre-held insufficient to justify an order of intermium had been paid thereon, held inadmissi- pleader.-Kirsop v. Mutual Life Ins. Co. (Sup.) ble.-O'Connell v. Fidelity & Casualty Co. of New York (Sup.) 315. § 2. Proceedings and relief. 95. An affidavit of a claimant of a fund due un INTERROGATORIES. In an action on a policy, the introduction in evidence of a receipt for premium signed by de- To witnesses, see "Depositions." fendant's general agents held prima facie proof of the payment of the premiums.-O'Connell v. Fidelity & Casualty Co. of New York (Sup.) 315. In an action on a policy, whether the premium for the current year had been paid held a question for the jury.-O'Connell v. Fidelity & Casualty Co. of New York (Sup.) 315. INTESTACY. See "Descent and Distribution." 8 1. INTOXICATING LIQUORS. Local option. Resubmission of local option to special town meeting, because of defective petition at the biennial town meeting, denied. In re Rogers (Sup.) 1024. $ 2. Licenses and taxes. It is no defense to an application for the revocation of a liquor tax certificate for violation of liquor tax law (Heydecker's Gen. Laws, p. 2378, c. 29) § 23, that the violation was permitted by an agent without the knowledge or consent of the certificate holder.-In re Cullinan (Sup.) 492. An indemnity bond, delivered with agreement that the secretary of the surety company would afterwards sign it, but with knowledge of his limited authority, held not binding, not having been signed till after an act making its penalty payable.-Cullinan v. Bowker (Sup.) 696. Unauthorized illegal sale by a pharmacist's clerk held not a breach of the pharmacist's bond. -Cullinan v. Burkhard (Sup.) 825. Right to rebate on voluntary surrender of liquor tax certificate held not forfeited by one conviction of employé of holder of certificate. -People v. Cullinan (Sup.) 1018. The holder of a liquor tax certificate does not forfeit his right to rebate on surrender of certificate because of a violation of the law for which he has not been prosecuted.-People v. Cullinan (Sup.) 1018. Revocation of liquor tax certificate, because of false statements in application, cannot be Intervention in proceedings for partnership ac- prevented by a subsequent change of the prem counting, see "Partnership," 5. § 1. Right to interpleader. An insurance company held not entitled to an order of interpleader, where it could have properly paid the amount due to an assignee of the policy at maturity, but refused to do so until one of the assignors could make claim ises to meet the provision of the statute.-In re McMonagle (Sup.) 1068. Liquor Tax Law, Laws 1897, p. 220, c. 312, § 17, subd. 8, requiring consent of owners of dwellings within 200 feet of the nearest entrance to the premises, construed.-In re Me Monagle (Sup.) 1068. parties Provision in a liquor tax law as to the num- In actions by or against particular classes of ber of bedrooms required in a hotel to authorize issue of liquor tax certificate held not complied with. In re McMonagle (Sup.) 1068. Liquor Tax Law, Laws 1897, p. 229, c. 312, § 28, subd. 2, as amended by Laws 1903, p. 1125, c. 486, § 12, relating to revocation of a liquor tax certificate, held constitutional.-In re Cullinan (Sup.) 1075. Petition to revoke liquor tax certificate held sufficient. In re Cullinan (Sup.) 1075. Evidence held not to show building occupied as a hotel continuously, so as to be exempt for consents on application for liquor tax certificate. -In re Ireland (Co. Ct.) 1100. Consents of owners of buildings used mainly for business purposes cannot be counted in determining consents on application for liquor tax certificate. In re Ireland (Co. Ct.) 1100. See "Associations." In particular civil actions or proceedings. See "Replevin," § 2. On appeal, see "Appeal," § 15. Personal judgment for deficiency on foreclosure, see "Mechanics' Liens," § 2. § 1. By default. Refusal to open default, voluntarily incurred ou refusal of continuance sought for absence of counsel, held proper.-Greenberg v. Angerman (Sup.) 244. Answering defendants, sued on a note as makers, held not entitled to raise the question that the order vacating the judgment against a defaulting maker was void.-Weston v. Citizens' Nat. Bank (Sup.) 743. The court held authorized to vacate a judgment inadvertently entered against a defaulting defendant.-Weston v. Citizens' Nat. Bank (Sup.) 743. Defendant against whom a default judgment had been taken in the Municipal Court cannot complain that an order opening the default was not entered and served upon him.-Greenberg v. Laeov (Sup.) 930. Default judgment, rendered at the time set for hearing after the conditional opening of a former default, held not erroneous for failure to take a new inquest.-Greenberg v. Laeov (Sup.) 930. § 2. On trial of issues. A judgment in the words: "Judgment rendered in favor of defendant and against plaintiff. Plaintiff is duly entitled to $10"-determines nothing.-Salsberg v. Tobias (Sup.) 151. A judgment entered in favor of a defendant, without any decision as to the plaintiff's rights, is without authority.-Sommer v. Sommer (Sup.) 444. 3. Amendment, correction, and review in same court. Under Code Civ. Proc. § 723, only such amendments can be made to a judgment as do not affect the merits.-Dunscomb v. Poole (Sup.) 749. Judgment for defendant for surrender of certain securities cannot be changed into one for money damages.-Dunscomb v. Poole (Sup.) 749. § 4. Opening or vacating. Under Consolidation Act, Laws 1882, p. 335, c. 410, § 1367, as amended by Laws 1894, p. 1871, c. 750, motion for the vacation of a judg ment held improperly granted after the expiration of 20 days.-Department of Health of City of New York v. Babcock (Sup.) 604. Under Consolidation Act, Laws 1882, p. 335, c. 410, § 1367, as amended by Laws 1894, p. 1871, c. 750, relative to the vacation of judgments by justices, and Laws 1896, p. 978. c. 748, Municipal Court Act, Laws 1902, p. 1562, c. 580, § 253, held not to apply to judgments rendered while the former sections were in and 118 New York State Reporter force.-Department of Health of City of New York v. Babcock (Sup.) 604. A surrogate held to have power to vacate or modify a decree in a proper case, without limitation as to time.-In re Mather's Estate (Sur.) 1105. 5. Merger and bar of causes of action and defenses. Where defendant failed to prove any damage under its counterclaim, and the court directed a verdict dismissing the counterclaim, it was not res judicata as to the counterclaim.-Jarvis v. New York House Wrecking Co. (Sup.) 191. 6. Foreign judgments. The judgment of a court of another state is entitled to the presumption of validity.-Gottlieb v. Alton Grain Co. (Sup.) 413. § 7. Assignment. The purchaser of judgments held, on partition, entitled to a lien on the amount paid for them, less the sum received from the debtor as against a subsequent mortgagee of the debtor. De Wandelaer v. De Wandelaer (Sup.) 945. JUDICIAL NOTICE. In civil actions, see "Evidence," § 1. JUDICIAL POWER. See "Constitutional Law," § 2. JUDICIAL SALES. Special jurisdictions. Particular courts, see "Courts." JURY. Grounds for reference instead of trial by jury, § 1. Right to trial by jury. Under Code, §§ 2247, 3065, defendant in dispossess proceedings held not to have waived his right to a jury trial, on retrial pursuant to an order of the appellate court, by failing to demand a jury trial when the case was first tried. -Freifeld v. Sire (Sup.) 144. An action on a fire policy held to have become a suit in equity, in view of interpleader of insurance company.-Voss v. Smith (Sup.) 471. Demand for jury trial on arraignment for assault in City Court of Utica must be two days before cause is set down for hearing.-People v. Halwig (Co. Ct.) 221. § 2. Competency of jurors, challenges, and objections. Defendant is not deprived of an opportunity to examine the jury, he having one attorney in court, merely because the court will not wait for his associate counsel.-Fischer v. Brooklyn Of property of decedent, see "Executors and Heights R. Co. (Sup.) 254. The purchaser of real estate held not bound to accept the title, where there was a reasonable doubt as to whether a contingent remainderman, not made a party to a suit affecting the title, was a necessary party thereto.-New York Security & Trust Co. v. Schoenberg (Sup.) 359. That a purchaser of real estate at a judicial sale knew of a defect which rendered the title unmarketable at the time of his purchase held not to estop him from refusing to complete the sale on such ground.-New York Security & Trust Co. v. Schoenberg (Sup.) 359. JURISDICTION. Effect of appearance, see "Appearance." Against personal representatives, see "Execu- Disputed claims against decedent's estate, see For violation of ordinances, see "Municipal Cor- In a criminal trial, exceptions to the refusal of the recorder to allow counsel for defendant to ask certain questions of talesmen held waived.-People v. Childs (Sup.) 853. JUSTICES OF THE PEACE. 81. Civil jurisdiction and authority. 2. Review of proceedings. Facts held not to show a default judgment, so as to be within Code Civ. Proc. § 3064, authorizing a new trial on a certain showing, if defendant appeals from such a judgment.Fischer v. Brooklyn Heights R. Co. (Sup.) 254. KNOWLEDGE. By servant of danger, see "Master and Servant," § 4. LACHES. Affecting right to amend pleading, see "Pleading," $ 2. LANDLORD AND TENANT. INDEX. Agreements releasing tenants within statute of frauds, see "Frauds, Statute of," § 1. Authority of agent of lessor, see "Principal and Agent," § 3. Parol and extrinsic evidence as to lease, see "Evidence," § 8. Relevancy of evidence in action for breach of rental contract, see "Evidence," § 2. Right of tenant to damages for nuisance, see "Nuisance," § 1. § 1. Creation and existence of the relation. Acceptance of rent by landlord from subtenant after termination of the principal lease held to create a tenancy between the landlord and subtenant, terminable only on service of the statutory five days' notice to quit.-Simmons v. Pope (Sup.) 973. ¡ 2. Leases and agreements in general. Agreement that tenant in possession under a lease might occupy rent free until building was torn down held void for uncertainty and want of consideration.-Kaven v. Chrystie (Sup.) 470. § 3. Terms for years. Option given lessee to purchase held not fatally ambiguous as to purchase price.-Heyward v. Willmarth (Sup.) 75. 1191 -Godfrey v. India Wharf Brewing Co. (Sup.) 90. In an action against a landlord for injuries caused by a defect in a water pipe, evidence held to justify a finding of negligence on the part of the landlord in failing to sooner discover and repair the defect.-Levine v. Baldwin (Sup.) 92. A water pipe, used to carry off water from the roof of a building demised to various tenants, leading through the cellar into the sewer, held an appliance the control of which was retained by the landlord, and he was therefore liable for negligence in failing to keep the same in repair. Levine v. Baldwin (Sup.) 92. Lease construed, and held not to require a tenant to repair a water pipe used to carry off water on the roof, leading through a part of the building leased to him.-Levine v. Baldwin (Sup.) 92. There can be no breach of a covenant by a landlord for quiet enjoyment, where the lessee remains in possession.-Greenwood v. Wetterau (Sup.) 287. A city held not liable to an employé of a lessee of a portion of a public park for personal injuries received through defects in the premises. -Leaux v. City of New York (Sup.) 514. A mere foreclosure sale of leased premises does not constitute a breach of the landlord's covenant for quiet enjoyment.-Mason v. Lenderoth (Sup.) 740. The agreement to pay rent is a sufficient consideration for an option given a lessee to purWhere a lease provided for notice of defects chase the premises and an adjoining tract.-to be given to the owner, the tenant could not Heyward v. Willmarth (Sup.) 75. recover for injuries to goods from water coming Extrinsic evidence held to render description through a defective roof, in the absence of such of premises in lease giving lessee option to pur-notice.-Sternberg v. Burke (Sup.) 862. chase sufficiently definite.-Heyward v. Willmarth (Sup.) 75. Evidence held insufficient to show a surrender of the premises by the lessee and an acceptance by the lessor, so as to relieve the lessee from liability for rent.-Morris v. Dayton (Sup.) 392. Facts held to show a surrender and acceptance of leased premises, relieving the lessee of liability for rent. - Krumdieck v. Ebbs (Sup.) 525. Permitting a tenant to retain possession, and consenting to receive rent, subsequent to the tenant's breach of a covenant not to sublet or permit an occupancy extrahazardous on count of fire, is not a waiver of such breach.Rouiaine v. Simpson (Sup.) 875. ac Landlord held entitled to recover from tenant extra insurance premium, payment of which was made necessary by tenant's breach of covenant against subletting.-Rouiaine v. Simpson (Sup.) 875. A landlord held to have waived written notice by the tenant of election to take under the provisions of a lease for a renewal term.-Schuck v. Schwab (Sup.) 896. In an action for breach of a lessor's agreement to give possession, the measure of damage is the difference between the rent reserved and the rental value.-Rosenblum v. Riley (Sup.) 884, A grantee of leased premises held not relieved from liability for the negligent management of the elevator service in the leased premises by showing that his grantor made a contract with a third person for the furnishing of heat and electricity for the building.-Wagner v. Welling (Sup.) 979. The liability for the negligent management of the elevator service in a leased building held to rest primarily on the original owner, which liability was transferred to his grantee.-Wagner v. Welling (Sup.) 979. The covenant in a lease that the lessee should make repairs held not to extend to an elevator in the building.-Wagner v. Welling (Sup.) 979. § 5. Rent and advances. In a suit for rent, the question of a surrender and acceptance of the premises held for the jury.-Ewing v. Barnard (Sup.) 137. Facts held insufficient to show individual liability for rent of saloon.-Blum v. Flanagan (Sup.) 146. A stipulation in a lease construed not to make a certain advance payment a mere deposit as and 118 New York State Reporter security for the payment of rent.-Forgotston v. Brafman (Sup.) 237. LANDS. In an action to recover rent, the verdict, di- See "Public Lands." rected for plaintiff, held, under the pleadings and evidence, error.-Vogel v. Hemming (Sup.) 473. In an action to recover rent, it was error to exclude evidence of surrender, eviction, and fraud; such defenses being pleaded.-Vogel v. Hemming (Sup.) 473. LAW OF THE CASE. Decision on appeal, see "Appeal," § 14. LAW OF THE ROAD. Money received by a landlord, on a reletting of the premises during the term to a third per- See "Highways," § 1. son, must, in an action for rent, be credited to the tenant.-Isaacson v. Wolfensohn (Sup.) 555. A reletting by the landlord some time during the term held not to constitute an acceptance of the tenant's surrender.-Isaacson v. Wolfensohn (Sup.) 555. LEASES. See "Landlord and Tenant." Lessee of sign space held not relieved from obligation to pay rent by rejection of proposed sign by building department, when leave was See "Wills." made subject_to_rules of such department.— Landau v. O. J. Gude Co. (Sup.) 672. A landlord can recover from his tenant rent LEGACIES. LEGACY TAX. for the full period preceding a foreclosure sale See "Taxation," § 5. Where it does not appear when the deed on foreclosure was delivered, damages to a tenant for breach of covenant thereby occasioned cannot be computed.-Mason v. Lenderoth (Sup.) 740. LETTERS. Of administration, see "Executors and Administrators," § 2. Foreclosure judgment presumed on appeal to have contained provision required by rule 61 of the general rules of practice.-Mason v. Lende-1. roth (Sup.) 740. Evidence in an action for rent held insufficient to support the finding that the tenant held over without a new contract of tenancy.-Bon v. Fenlon (Sup.) 858. In an action against a tenant, a judgment disallowing a counterclaim for storage of machinery for plaintiff held proper.-Watson v. Raab (Sup.) 972. Where a sum is deposited as a pledge in the making of a lease, depositor can recover it, when, upon inspection, he refuses to execute the lease. Aquelina v. Provident Realty Co. of New York (Sup.) 1014. § 6. Re-entry and recovery of possession by landlord. Where, in a summary proceeding by a landlord, the allegation that a certain amount of rent was due was denied by a verified answer, judgment for plaintiff, without any evidence, was erroneous.-Brill v. Norkett (Sup.) 142. A petition in summary proceedings, stating that petitioner is the lessee and as such is the landlord of the premises, held not to satisfy Code Civ. Proc. § 2235, requiring it to describe the interest in the land of petitioner.-Loft v. Kaziz (Sup.) 228. Entire strangers to summary proceedings held not authorized to intervene, by Code Civ. Proc. § 2244, in view of provisions of sections 22312237.-Heuser v. Antonius (Sup.) 580. LIBEL AND SLANDER. Actions. In action for slander, the particular words spoken must be pleaded.-Van Alstyne v. Lewis (Sup.) 764. In slander, complaint must allege that defamatory matter was published or spoken of plaintiff.-Van Alstyne v. Lewis (Sup.) 761. |