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nell v. Fidelity and Casualty Co. of New York
(Sup.) 315. Of writings, see “Discovery,” g 1.
What is a reasonable time within which to
deliver a policy of insurance under a contract INSTRUCTIONS.
is, an action for the rescission of such con
tract, a question for the trial court.-Calandra In civil action, see “Trial," $ 7.
v. Life Ass'n of America (Sup.) 498.
sentation, fraud, or breach of INSURANCE.
warranty or condition. Best and secondary evidence in action for premi forated.-McMyler v. Union Casualty & Surety
Plate glass held not uninsurable because peruns advanced on policy, see "Evidence,” g 3. Co. (Sup.) 170. Competency of evidence in action on policy, see "Evidence," $ 2.
Insured being merely a member of the firm Interpleader in action on policy, see “Inter- owning the property, the policy, conditioned to pleader," $ 1.
be void if the interest of insured be other than Trial by jury in action on policy, see "Jury,” unconditional ownership, is ineffectual. - Mc§ 1.
Grath Home Ins. Co. (Sup.) 374. § 1. The contract in general.
§ 5. Forfeiture of policy for breach of Reformation of insurance policy, for mistake
promissory warranty, covenant, of one party thereto only, denied.-Dougherty
or condition subsequent. v. Lion Fire Ins. Co. (Sup.) 10.
Insured's release of third person from liabili
ty for loss, so as to prevent insurer's subrogaWhere a life policy was to be issued to in- tion, held to avoid policy.-Bloomingdale v. Cosured “pending the delivery", of an endowment lumbia Ins. Co. (Sup.) 572. policy, and no time was fixed for such delivery, the presumption is that it was to be within a $ 6. Estoppel, waiver, agreements reasonable time.-Calandra V. Life Ass'n of
affecting right to avoid or forAmerica (Sup.) 498.
Knowledge of the facts by a broker soliciting Life policy, given to insured pending delivery insurance for insurer's agents does not waive of an endowment policy, is not rendered void condition of the policy that it shall be roid if inbecause insurer has no right to issue endow- sured's interest be other than unconditional and ment policies.-Calandra v. Life Ass'n of Ameri- sole ownership. — McGrath v. Home Ins. Co. ca (Sup.) 498.
(Sup.) 374. Where an insured accepts a life policy, pend
Refusal to defend suit brought against one ing the delivery of an endowment policy, for insured under an employer's liability policy held which he rays the premium, he has the right not to affect the right of the insurance comto demand the delivery of the endowment poli- pany to show that it was not liable to the cy within a reasonable time.-Calandra v. Life assured. - Tolmie v. Fidelity & Casualty Co. Ass'n of America (Sup.) 498.
(Sup.) 1020. Employer's liability policy coustrued, and held, that the company was not liable for injuries | 8 7. Risks and causes of loss. caused by a subcontractor or by his workinen.- The fact that glass is perforated when inTolmie v. Fidelity & Casualty Co. (Sup.) 1020. sured did not show a subsequent break to be
in consequence of such perforation.-McMyler § 2. Premiums, dues, and assessments.
v. Union Casualty & Surety Co. (Sup.) 170. Where agents to procure insurance, under oral agreement to give certaiu rebates, inform the $ 8. Right to proceeds. insured that they will give rebates no longer, after which insured accepts policies, his right to have a vested interest therein, of which they
Beneficiaries in a life insurance policy held to the rebate is terminated.-Depew v. Krule- could not be deprived without their consent.witch (Sup.) 242.
Sangunitto v. Goldey (Sup.) 989. Evidence held sufficient to show termination
Under life insurance policy, a change of beneof an agreement by insurance agents to give ficiary held not effected by notice to the comrebates to insured. – Depew v. Krulewitch pany, without an indorsement on the policy.(Sup.) 242.
Sangunitto v. Goldey (Sup.) 989. Insured held entitled, on rescission of contract, to recover excess over straight life premium $ 9. Actions on policies. which he had paid for premium on endowment In an action on a plate glass insurance polpolicy, or to a credit of such excess on next icy, evidence held not to show that the glass year's life premiums.-Calandra v. Life Ass'n was not in existence when the policy was isof America (Sup.) 498.
sued.-MeMyler v. Union Casualty & Surety § 3. Cancellation, surrender, abandon. Co. (Sup.) 170. ment, or rescission of policy.
In an action on a policy, instructions that the A policy held canceled by notice of the insur- burden was on the defendant to prove that neier's intention to do so, as authorized thereby, ther it nor any one authorized in its behalf reand by request for remission of a portion of the received the money recited in the renewal recurrent premium earned and unpaid.-O'Con-ceipt for the current year held error.-O'Connell
and 118 New York State Reporter v. Fidelity & Casualty Co. of New York (Sup.) | thereto.-Kirsop v. Mutual Life Ins. Co. (Sup.)
(Sup.) 10244 meeting, denied. Sention at the
In an action on a policy claimed to have Where, in an action by insured's adminislapsed for nonpayment of premium, evidence of trator, insurer interpleaded the beneficiary and a custom of defendant's agents to mail renewal | paid the money into court, such act constituted receipts to policy holders before the expiration an admission of the validity of the policy and of the policy, whether premiums were paid or of the designation of the beneficiary.-Sangunot, held inadmissible.- O'Connell v. Fidelity & nitto v. Goldey (Sup.) 989. Casualty Co. of New York (Sup.) 315.
§ 2. Proceedings and relief. Where insurer canceled a policy under a clause giving it the general right to do so, evidence
An affidavit of a claimant of a fund due untending 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.
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.)
See "Descent and Distribution." 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 & Cas
INTOXICATING LIQUORS. ualty Co. of New York (Sup.) 315.
8 1. Local option. INTEREST.
Resubmission of local option to special town meeting, because of defective petition at the
en meeting, denied. --In re Rogers On particular classes of liabilities. See "Bills and Notes," 8 2. Funds of decedent's estate, see "Executors and $ 2. Licenses and taxes. Administrators," $ 3.
It is no defense to an application for the retoLiability arising on breach of bond on appeal cation of a liquor tax certificate for violation in criminal prosecution, see "Criminal Law," of liquor tax law (Heydecker's Gen. Laws, p.
2378, c. 29) 8 23, that the violation was perPenalty in bond, see "Principal and Surety," mitted by an agent without the knowledge or 8 1.
consent of the certificate holder.-In re Culli
nan (Sup.) 492. Pecuniary interest in particular subjects.
An indemnity bond, delivered with agreement Effect as to credibility of witness, see "Wit- that the secretary of the surety company would nesses," $ 4.
afterwards sign it, but with knowledge of his
limited authority. held not binding. not having § 1. Recovery. The failure to demand interest in the oral been signed
mand interest in the oral been signed till after an act making its penalty complaint and in the bill of particulars held not payable.-Cullinan v. Bowker (Sup.) 696. to prevent an allowance of interest.-Kohn v. Unauthorized illegal sale by a pharmacist's Schuldenfrei (Sup.) 870.
clerk held not a breach of the pharmacist's bond.
-Cullinan v. Burkhard (Sup.) 825. INTERLOCUTORY INJUNCTION. Right to rebate on voluntary surrender of
liquor tax certificate held not forfeited by one See "Injunction,” $ 4.
conviction of employé of holder of certificate.
-People v.. Cullinan (Sup.) 1018. INTERLOCUTORY JUDGMENT.
The holder of a liquor tax certificate does not
forfeit his right to rebate on surrender of cerAppealability, see "Appeal," $ 1.
tificate because of a violation of the law for
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 premcounting, see “Partnership,” 8 5.
ises to meet the provision of the statute.-In re § 1. Right to interpleader.
| McMonagle (Sup.) 1068. An insurance company held not entitled to Liquor Tax Law, Laws 1897, p. 220, c. 312, an order of interpleader, where it could have $ 17, subd. 8, requiring consent of owners of properly paid the amount due to an assignee dwellings within 200 feet of the nearest enof the policy at maturity, but refused to do so trance to the premises, construed.-In re Me until one of the assignors could make claim | Monagle (Sup.) 1068.
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
parties issue of liquor tax certificate held not complied See “Associations." with.-In re McMonagle (Sap.) 1068.
In particular civil actions or proceedings. Liquor Tax Law, Laws 1897, p. 229, c. 312, $ 28, subd. 2, as amended by Laws 1903, p.
See "Replevin," $ 2. 1125, c. 486, § 12, relating to revocation of a
On appeal, see "Appeal,” $ 15. liquor tax certificate, held constitutional.-In re Personal judgment for deficiency on foreclosure, Cullinan (Sup.) 1075.
see "Mechanics' Liens," § 2. Petition to revoke liquor tax certificate held $ 1. By default. sufficient.-In re Cullinan (Sup.) 1075.
Refusal to open default, voluntarily incurEvidence held not to show building occupied red on refusal of continuance sought for abas a hotel continuously, so as to be exempt for sence of counsel, held proper.-Greenberg v. consents on application for liquor tax certificate. -In re Ireland (Co. Ct.) 1100.
Answering defendants, sued on a note as Consents of owners of buildings used mainly makers, held not entitled to raise the question for business purposes cannot be counted in de- that the order vacating the judgment against a termining consents on application for liquor tax defaulting maker was void.-Weston v. Citicertificate.-In re Ireland (Co. Ct.) 1100.
zens' Nat. Bank (Sup.) 743.
The court held authorized to vacate a judgISSUES.
ment inadvertently entered against a defaulting
defendant.-Weston v. Citizens' Nat. Bank Presented for review on appeal, see "Appeal,"
, „(Sup.) 743. $ 3.
Defendant against whom a default judgment
had been taken in the Municipal Court cannot JOINT ADVENTURES.
complain that an order opening the default was
not entered and served upon him.-Greenberg v. Liability of parties to a contract for the sale | Laeov (Sup.) 930. of land to their broker held not joint.-Whaples Default judgment, rendered at the time set v. Fahys (Sup.) 793.
for hearing after the conditional opening of a former default, held not erroneous for failure to
take a new inquest.-Greenberg v. Laeov (Sup.) JOINT-STOCK COMPANIES.
930. See "Associations."
§ 2. On trial of issues.
A judgment in the words: “Judgment ren
dered in favor of defendant and against plainJUDGES.
tiff. Plaintiff is duly entitled to $10"-deter
mines nothing.--Salsberg v. Tobias (Sup.) 151. See "Courts"; "Justices of the Peace.”
A judgment entered in favor of a defendant, Suspension for practicing law, see "Attorney
"Attorney without any decision as to the plaintiff's rights, and Client,” $ 1.
is without authority.-Sommer v. Soramer (Sup.) I 1. Rights, powers, duties, and liabil
$ 3. Amendment, correction, and reSince Const. art. 6, § 20, forbidding a surro
view in same court. gate to practice as an attorney in any court of Under Code Civ. Proc. & 723, only such record, ipso facto suspends him from practice
amendments can be made to a judgment as do on his election, an order of the Supreme Court not affect the merits.-Dunscomby. Poole (Sup.) suspending him generally from practice is su 749. perfluous.-In re Silkman (Sup.) 1025.
Judgment for defendant for surrender of cer
tain securities cannot be changed into one for JUDGMENT.
money damages.-Dunscomb v. Poole (Sup.)
749. Appealability of order vacating, see "Appeal,"
§ 4. Opening or vacating. Decisions of courts in general, see "Courts,"
Under Consolidation Act, Laws 1882, p. 335, $ 1.
c. 410, 81367, as amended by Laws 1894, p. Enforcement by creditors' suit, see "Creditors' | 1871, c. ,750, motion for the vacation of a judgSuit."
ment held improperly granted after the expiraOn pleading, see "Pleading," 5.
tion of 20 days. - Department of Health of City Presentation of grounds of review in record, see of New
of New York v. Babcock (Sup.) 604.
lor "Appeal," $ 5.
Under Consolidation Act, Laws 1882, p. 335, Review, see "Appeal."
c. 410, $ 1367, as amended by Laws 1894, p. Review of discretion of court in opening de-1871, c. 750, relative to the vacation of judgfault, see "Appeal," $ 10.
ments by justices, and Laws 1896, p. 978, c. Sales under judgment, see "Judicial Sales.” 748, Municipal Court Act, Laws 1902, p. 1562, Sufficiency of report of referee to sustain, see c. 580, $ 253, held not to apply to judgments "Reference,” g 3.
rendered while the former sections were in
and 118 New York State Reporter force.-Department of Health of Oity of New
Special jurisdictions. York v. Babcock (Sup.) 604.
Justices' courts in civil cases, see "Justices of A surrogate held to have power to vacate or the Peace," $ 1. modify a decree in a proper case, without limi- | Particular courts, see "Courts." tation as to time.--In re Mather's Estate (Sur.) | Preliminary examination of accused, see “Crim
inal Law," $ 1. § 5. Merger and bar of causes of action and defenses.
JURY. · Where defendant failed to prove any damage
à Grounds for reference instead of trial by jury, under its counterclaim, and the court directed a verdict dismissing the counterclaim, it was not
I see "Reference," 8 1. res judicata as to the counterclaim.-Jarvis y.
Harmless misconduct, see "Appeal," $ 12. New York House Wrecking Co. (Sup.) 191.
Instructions in civil actions, see “Trial," $7.
Questions for jury in civil actions, see "Trial," $ 6. Foreign judgments.
$ 6. The judgment of a court of another state is Taking case or question from jury at trial, see entitled to the presumption of validity.-Gott- "Trial," $ 6. lieb v. Alton Grain Co. (Sup.) 413.
§ 1. Right to trial by jury. 8 7. Assignment.
Under Code, $$ 2247, 3065, defendant in disThe purchaser of judgments held, on parti- | possess proceedings held not to have waived his tion, entitled to a lien on the amount paid for right to a jury trial, on retrial pursuant to an them, less the sum received from the debtor order of the appellate court, by failing to de as against a subsequent mortgagee of the debt-mand a jury trial when the case was first tried. or.-De Wandelaer v. De Wandelaer (Sup.)-Freifeld v. Sire (Sup.) 144. 945.
An action on a fire policy held to have become JUDICIAL NOTICE.
a suit in equity, in view of interpleader of in
surance company.-Voss v. Smith (Sup.) 471. In civil actions, see "Evidence," 1.
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 JUDICIAL POWER.
v. Halwig (Co. Ct.) 221.
§ 2. Competency of jurors, challenges, See "Constitutional Law," $ 2.
Defendant is not deprived of an opportuniJUDICIAL SALES.
ty 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. Administrators," $ 7.
In a criminal trial, exceptions to the refusal The purchaser of real estate held not bound of the recorder to allow counsel for defendant to accept the title, where there was a reasonable to ask certain questions of talesmen held wair. doubt as to whether a contingent remainderman, ed.-People v. Childs (Sup.) 853. not made a party to a suit affecting the title, was a necessary party thereto.-New York Security & Trust Co. v. Schoenberg (Sup.) 359.
JUSTICES OF THE PEACE. That a purchaser of real estate at a judicial sale knew of a defect which rendered the title | 8
| $ 1. Civil jurisdiction and authority. unmarketable at the time of his purchase held
held A justice who adjourns a case for more than not to estop him from refusing to complete the eight days, as authorized by Code Civ. Proc. $ sale on such ground.-New York Security &
2959, 2960, loses jurisdiction.-Moore v. Taylor Trust Co. v. Schoenberg (Sup.) 359.
8 2. Review of proceedings. JURISDICTION.
Facts held not to show a default judgment, so as to be within Code Civ. Proc. $ 3064, au
thorizing a new trial on a certain showing, if Effect of appearance, see "Appearance." defendant appeals from such a judgment.
Fischer V. Brooklyn Heights R. Co. (Sup.) Jurisdiction of particular actions or proceedings. 254. Accounting by committee of insane person, see "Insane Persons," $ 1.
KNOWLEDGE. Against personal representatives, see "Executors and Administrators," $ 8.
By servant of danger, see "Master and ServDisputed claims against decedent's estate, see ant," $ 4.
"Executors and Administrators," 8 5. For breach of contract, see "Contracts," $ 5.
LACHES. For probate of will, see "Wills," $ 3. For violation of ordinances, see "Municipal Cor- Affecting right to amend pleading, see "Pleadporatious," $ 3.
T ing," $ 2.
LANDLORD AND TENANT. -Godfrey v. India Wharf Brewing Co. (Sup.)
90. Agreements releasing tenants within statute of In an action against a landlord for injuries
frauds, see "Frauds, Statute of," $ 1. caused by a defect in a water pipe, evidence held Authority of agent of lessor, see “Principal to justify finding of negligence on the part of Agent," § 3.
the landlord in failing to sooner discover and Parol and extrinsic evidence as to lease, see repair the defect.-Levine v. Baldwin (Sup.) 92. “Evidence," $ 8.
water pipe, used to carry off water from Relevancy of evidence in action for breach of the roof of a building demised to various tenrental contract, see “Evidence," $ 2.
ants, leading through the cellar into the sewer, Right of tenant to damages for nuisance, see held' an appliance the control of which was re"Nuisance," $ 1.
tained by the landlord, and he was therefore § 1. Creation and existence of the re- in repair. -Levine v. Baldwin (Sup.) 92.
liable for negligence in failing to keep the same lation. Acceptance of rent by landlord from sub Lease construed, and held not to require a tenant after termination of the principal lease tenant to repair a water pipe used to carry off held to create a tenancy between the landlord water on the roof, leading through a part of and subtenant, terminable only on service of the building leased to him.-Levine v. Baldwin the statutory five days' notice to quit.-Sim- (Sup.) 92. mons v. Pope (Sup.) 973.
There can be no breach of a covenant by a § 2. Leases and agreements in general. landlord for quiet enjoyment, where the lessee
remains in possession.-Greenwood v. Wetterau Agreement that tenant in possession under a (Sup.) 287. lease might occupy rent free until building was torn down held void for uncertainty and want
A city held not liable to an employé of a lessee of consideration.-Kaven v. Chrystie (Sup.) 470. of a portion of a public park for personal in
juries received through defects in the premises. § 3. Terms for years.
-Leaux v. City of New York (Sup.) 514. Option given lessee to purchase held not fatally ambiguous as to purchase price.—Heyward does not constitute a breach of the landlord's
A mere foreclosure sale of leased premises v. Willmarth (Sup.) 75.
covenant for quiet enjoyment.-Mason v. LendeThe agreement to pay rent is a sufficient con- roth (Sup.) 740. sideration for an option given a lessee to purchase the premises and an adjoining tract.- to be given to the owner, the tenant could not
Where a lease provided for notice of defects 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.
In an action for breach of a lessor's agree
ment to give possession, the measure of damEvidence held insufficient to show a surrender age is the difference between the rent reserved of the premises by the lessee and an acceptance and the rental value.-Rosenblum v. Riley (Sup.) by the lessor, so as to relieve the lessee from lia- 884. bility for rent.-Morris v. Dayton (Sup.) 392.
A grantee of leased premises held not relieved Facts held to show a surrender and accept- from liability for the negligent management of ance of leased premises, relieving the lessee of the elevator service in the leased premises by liability for rent. Krumdieck v. Ebbs (Sup.) showing that his grantor made a contract with 525.
a third person for the furnishing of heat and Permitting a tenant to retain possession, and electricity for the building.-Wagner v. Welconsenting to receive rent, subsequent to the ling (Sup.) 979. tenant's breach of a covenant not to sublet or The liability for the negligent management permitan occupancy extrahazardous on of the elevator service in a leased building held count of fire, is not a waiver of such breach. to rest primarily on the original owner, which Rouiaine v. Simpson (Sup.) 875.
liability was transferred to his grantee.-WagLandlord held entitled to recover from tenant ner v. Welling (Sup.) 979. extra insurance premium, payment of which
The covenant in a lease that the lessee should was made necessary by tenant's breach of cove
make repairs held not to extend to an elevator nant against subletting.-Rouiaine v. Simpson in the building.-Wagner v. Welling (Sup.) 979. (Sup.) 875.
A landlord held to have waived written notice $ 5. Rent and advances. by the tenant of election to take under the pro In a suit for rent, the question of a surrender visions of a lease for a renewal term.-Schuck and acceptance of the premises held for the V. Schwab (Sup.) 896.
jury.-Ewing v. Barnard (Sup.) 137. § 4. Premises, and enjoyment and use
Facts held insufficient to show individual liathereof.
bility for rent of saloon.-Blum v. Flanagan The measure of damages for a breach of a
(Sup.) 146. covenant to repair is the difference between the A stipulation in a lease construed not to make rental value if repaired and as they really are. a certain advance payment a mere deposit as