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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.

and objections.

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.

(Sup.) 518.

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.

Patsiende trinstience in action for the

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 and to justify a 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.

A 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

liable for negligence in failing to keep the same lation.

in repair.-Levine v. Baldwin (Sup.) 92. 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. I 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 fa

A mere foreclosure sale of leased premises tally ambiguous as to purchase price.-Heyward v. Willmarth (Sup.) 75.

does not constitute a breach of the landlord's

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 pur

Where 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.

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 permit an occupancy extrahazardous on ac- l 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. I a certain advance payment a mere deposit as

LEGACIES.

LEGACY TAX.

and 118 New York State Reporter security for the payment of rent.--Forgotston v.

LANDS. Brafman (Sup.) 237.

In an action to recover rent, the verdict, di- See “Public Lands." rected for plaintiff, held, under the pleadings and evidence, error.-Vogel y. Hemming (Sup.) 473.

LAW OF THE CASE. In an action to recover rent, it was error to exclude evidence of surrender, eviction, and Decision on appeal, see "Appeal," $ 14. fraud; such defenses being pleaded.--Vogel v. Hemming (Sup.) 473.

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.

LEASES. A reletting by the landlord some time during the term held not to constitute an acceptance of See “Landlord avd Tenant." the tenant's surrender.-Isaacson v. Wolfensohn | Parol and extrinsic evidence. see “Evidence (Sup.) 555.

8 8. 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. 0. J. Gude Co. (Sup.) 672.

A landlord can recover from his tenant rent for the full period preceding a foreclosure sale | See (Taxation." 8 5. of the premises.-Mason v. Lenderoth (Sup.) 740. Where it does not appear when the deed on

LETTERS. foreclosure was delivered, damages to a tenant

Of administration, see “Executors and Adminfor breach of covenant thereby occasioned can- || not be computed.-Mason v. Lenderoth (Sup.) |

istrators," $ 2. 740. Foreclosure judgment presumed on appeal to

LIBEL AND SLANDER. have contained provision required by rule 61 of the general rules of practice.-Mason v. Lende- | 8 1. Actions. roth (Sup.) 740..

In action for slander, the particular words

spoken must be pleaded.–Van Alstype v. Lewis Evidence in an action for rent held insuffi- TSur

(Sup.) 761. cient to support the finding that the tenant held over without a new contract of tenancy.-Bon

In slander, complaint must allege that de v. Fenlon (Sup.) 858.

famatory matter was published or spoken of

plaintiff,- Van Alstyne y. Lewis (Sup.) 761. In an action against a tenant, a judgment disallowing a counterclaim for storage of machinery for plaintiff held proper.-- Watson v.

LICENSES.
Raab (Sup.) 972.
Where a sum is deposited as a pledge in the

For sale of intoxicating liquors, see "Intoxicat.

ing Liquors," $ 2. making of a lease, depositor can recover it, Lin when, upon inspection, he refuses to execute

Liability of railroad for injuries to licensee, see the lease.--Aquelina v. Provident Realty Co.

“Railroads," $ 3. of New York (Sup.) 1014.

LIENS. $ 6. Re-entry and recovery of possession by landlord.

Liens acquired by particular remedies or proWhere, in a summary proceeding by a land

ceedings. lord, the allegation that a certain amount of See "Taxation," 2. rent was due was denied by a verified auswer,

Portion judgment for plaintiff, without any evidence,

Particular classes of liens. was erroneous.--Brill y. Norkett (Sup.) 142. See "Attorney and Client," $$ 2, 4; “Carriers, **

$$ 1, 2; "Mechanics' Liens"; "WarehouseA 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. 8 2235, requiring it to describe LIMITATION OF ACTIONS. the interest in the land of petitioner.-Loft v. 1 Kaziz (Sup.) 228.

See “Mandamus," $ 2. Entire strangers to summary proceedings held $ 1. Acknowledgment, new promise, not authorized to intervene. by Code Civ. Proc. 8 2241, in view of provisions of sections 2231-1 Unsigued statement of payment ou back of 2237.-Heuser v. Antonius (Sup.) 580.

I note barred by limitations held insufficient to

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and part payment.

keep the note alive, when not in the handwrit- section 111, the court held unauthorized to suming of the payee or made with his privity.-In marily proceed to determine the validity of the re Salisbury's Estate (Sur.) 215.

void and protested ballots.-In re Perry (Sup.)

406. LIMITATION OF LIABILITY. Limitations prescribed by New York Re

vised Charter, Laws 1901, p. 129, c. 466, $ 302, Of carrier, see "Carriers,” 88 1, 2.

held not to apply to mandamus by police officer

to secure position as detective sergeant.-People LIQUOR SELLING.

v. Greene (Sup.) 565.

Mandamus by police officer to secure position See “Intoxicating Liquors."

as detective sergeant held barred by laches.

People v. Greene (Sup.) 565.
LIS PENDENS.

Relator held to have lost by laches his right

to mandamus to have his name placed on the Pendency of other action ground for abatement,

list of persons eligible to teach in New York, see "Abatement and Revival," $ 1.

| under provisions of City Charter, Laws 1897, p. 388, c. 378, $ 1081.- People v. Maxwell (Sup.)

947. LOAN COMPANIES.

MANDATE.
See "Building and Loan Associations."

See “Mandamus."
LOCAL OPTION.

To lower court on decision on appeal, see "Ap

peal," $ 15.
Traffic in intoxicating liquors, see “Intoxicating
Liquors," $ 1.

MANSLAUGHTER.
LUNATICS.

See "Homicide," $ 1.
See "Insane Persons."

MARRIAGE.
MACHINERY.

See “Divorce"; "Husband and Wife."
Dangerous machinery, see "Negligence," § 1.

MARRIED WOMEN.
MALICIOUS PROSECUTION. See "Husband and Wife.”
Harmless error in admission of evidence as to

MARSHALS.
probable cause, see "Appeal," § 12.
$ 1. Actions.

See “Sheriffs and Constables,” 2. Evidence, in an action for malicious prosecution, concerning occurrences in court on the

MASTER AND SERVANT. trial of the prosecution complained of, held admissible.-Loftus v. Meyer (Sup.) 861.

See "Work and Labor."

Admissions by employés as evidence, see "EviMALPRACTICE.

dence," $ 4.

Employer's liability insurance, see "Insurance," See “Physicians and Surgeons."

$81, 6.

Execution against the person in action for MANDAMUS.

wages, see "Execution," $ 3.

Operation of statute of frauds on contract of Mandatory injunction, see "Injunction," § 4. employment, see "Frauds, Statute of," 8 2. $ 1. Subjects and purposes of relief. $ 1. The relation.

A person who has been duly promoted as cap- On breach of a contract of employment. tain of police in the city of New York is enti- where the servant was unable to obtain work tled to a writ of mandamus to compel the civil during the remainder of the term, the measure service commissioners to certify such promotion

of damages was the stipulated salary for the on the pay roll and to compel the city police to unexpired portion of the term.-Leslie v. Rocertify the same.-People v. Ogden (Sup.) 73. bie (Sup.) 289. $ 2. Jurisdiction, proceedings, and re

A notice of discharge given to an actress held lief.

a substantial compliance with the contract, and In view of the answer in mandamus proceed

operated to terminate the same.-Leslie v Ro

P ings under Election Law, Laws 1896, p. 966. c. I bie wup.) 203. 909, $ 114, to compel the count of void ballots Certificates obtained by an employé that he and recount of protested ballots, showing that called on customers held not admissible, even to the inspectors of election had not complied with show he got them, in an action for his disand 118 New York State Reporter charge, made on the ground that he had not giv- | used for switching purposes.--Shannon v. New en his exclusive time to his duties as salesman. / York Cent. & H. R. R. Co. (Sup.) 646. -Tishman v. Kline (Sup.) 452.

8 6. - Actions. The evidence on the issues of wrongful dis- Under Laws 1902. c. 600.8 2. in an action charge of an employé, being conflicting, is for injury to an employé, there being no proof properly submitted to the jury.-Marsh V. of notice to the employer within 120 days, Bergman (Sup.) 469.

nonsuit for failure to prove facts constituting Evidence of facts justifying breach of a con- a cause of action should be granted.-Stahl v. tract of employment held inadmissible under a Schoonmaker (Sup.) 239. general denial.-Schreiber v. Ash (Sup.) 946. | Where there is no proof of application or vio

lation of labor law (Laws 1897, p. 468, c. 415, § 2. Master's liability for injuries to

| $ 20, as amended by Laws 1899, p. 351, c. 192), servant.

or of the cause of a fall of bricks injuring a Master held liable for injuries to an employé,

servant, a verdict for him in action for the who slipped on the pavement and fell through

injuries cannot be sustained.-Holzman v. a defective sewer cover.-Leaux v. City of New

Katzman (Sup.) 250. York (Sup.) 511.

In an action by a servant against the master Where plaintiff was injured by the fall of

for injuries caused by the breaking of an elerock while removing earth from defendant's

theivator, evidence held not to show negligence on track, the manner of removing the earth held

the part of defendant.-Kindorf v. Hoellerer a detail of the work, properly left to the judgment of the foreman.-Van Derhoff v. New

(Sup.) 465. York Cent. & H. R, R. Co. (Sup.) 650.

In an action against a master for personal

injuries, held, that the question of his negliSelection of rope for the use of men under him

gence in failing to provide a safe place to work by the foreman held to be the act of a corpora

was for the jury, and that it was error to distion, for which it is liable.-Vogel v. American

miss the complaint.-Leaux V. City of New Bridge Co. (Sup.) 799.

York (Sup.) 511. $ 3. - Tools, machinery, appliances, In action against a master for death of a and places for work

servant, alleged to have been caused by the A lessee of a portion of a public park held master's negligence, evidence held insufficient to liable to an employé for personal injuries re- support a finding that deceased was free

from ceived by reason of defects in the premises.- contributory negligence.--Huff v American Leaux v. City of New York (Sup.) 511.

Fire Engine Co. (Sup.) 651. A master held not liable for injuries arising In action against a master for death of a from an implement not furnished by him and servant by the master's failure to guard a set to the use of which he had not consented. screw, as required by law, evidence held insuffiHackett v. Masterson (Sup.) 751.

cient to show that deceased was caught by the

set screw.-Huff v. American Fire Engine Co. § 4. — Risks assumed by servant.

(Sup.) 651. A servant, employed to shovel pulp from a drainer, held to assume the risk of its falling

A charge relating to mistake in judgment of a

foreman in selection of a rope for men under down.--Vykess v. Duncan Co. (Sup.) 398.

him held not pertinent under the theories of the Where plaintiff was injured by a fall of rock, parties.-Vogel v. American Bridge Co. (Sup.) while removing earth from defendant's track, a statement of the foreman, "Never mind looking up,” held a declaration of a fellow servant, 8 7. Liabilities for injuries to third not imposing any liability on defendant.--Van

persons. Derhoff v. New York Cent. & H. R. R. Co.

The relation of master and servant held not (Sup.) 650.

to have existed between defendant and his

defendant, so as to render the latter liable as $5. - Contributory negligence of master for the negligent driving of defendant. servant.

--Thurn v. Williams (Sup.) 296. Accident to an employé in putting a cover on Defendant held chargeable with the use by a tank, it tipping and throwing him in, held his servant of water in sweeping the sidewalk, caused by his negligence.-Sheehan y. Standard so as to be liable to plaintiff, who slipped on Gaslight Co. (Sup.) 34.

the ice formed thereby.-Kavanagh v. Vollmer An employé, who noticed a defect in the (Sup.) 475. premises and reported same to master, held not guilty of contributory negligence in con MEASURE OF DAMAGES. tinuing work on a promise to repair.-Leaux v. City of New York (Sup.) 511.

Sce "Damages," $ 2. Locomotive engineer held guilty of contributory negligence in failing to have his train un

MECHANICS' LIENS. der control.--Shannon v. New York Cent. & II. R. R. Co. (Sup.) 646.

$ . Proceedings to perfect. Railroad company held not negligent in fail- Under Lien Law, Laws 1897, p. 518, c. 418, ure to require the placing of torpedoes to warn & 9, subd. 4, a notice of lien held not to contain approaching trains, when the track was being a sufficient statement of the labor performed

799.

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