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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 v. 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 and Tenant." the tenant's surrender.-Isaacsou v. Wolfensohn Parol and extrinsic evidence, see “Evidence," (Sup.) 555.

$ 8. Lessee of sigu space held not relieved from obligation to pay rent by rejection of proposed

LEGACIES. sign by building department, when leave was

See "Wills." made subject to rules of such department.Landau v. 0. J. Gude Co. (Sup.) 672.

LEGACY TAX. A landlord can recover from his tenant rent for the full period preceding a foreclosure sale See "Taxation,” s 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 cannot 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- 81. Actions. roth (Sup.) 740.

In action for slander, the particular words Evidence in an action for rent held insuffi- spoken must be pleaded.–Van Alstyne r. Lewis

(Sup.) 764. 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 "Intoxicatmaking of a lease, depositor can

ing Liquors," $ 2.

recover it, 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, judgment for plaintiff, without any evidence,

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

$8 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. $ 2235, requiring it to describe LIMITATION OF ACTIONS. the interest in the land of petitioner.-Loft v. Kaziz (Sup.) 228.

See “Mandamus," 8 2. Entire strangers to summary proceedings held. & l. Acknowledgment,

promise, not authorized to intervene, by Code Civ. Proc.

and part payment. § 2244, in view of provisions of sections 2231 Unsigued statement of payment on back of 2237.--Heuser v, Antonius (Sup.) 580.

note barred by limitations held insufficient to




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.

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.)


See "Building and Loan Associations."

See “Mandamus."

To lower court on decision on appeal, see "Ap

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


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


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

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

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


and the materials furnished, and the agreed mortgagor.-Barnes v. Long Island Real Esprice or value thereof.-Toop v. Smith (Sup.) tate Exch. & Inv. Co. (Sup.) 951. 326.

The fact that a bond and mortgage were not Code Civ. Proc. $ 3417, requiring action to en- in the possession of the mortgagee when payforce mechanics' liens to be brought within 30 ments were made was not, of itself, notice to days after notice, held to vest the court with a the mortgagor of their assignment.—Barnes v. sound discretion to vacate or refuse to vacate Long Island Real Estate Exch. & Inv. Co. a lien, where action was not brought within (Sup.) 951. such time.-William H. Jackson Co. v. Haven

Evidence held insufficient to show notice to (Sup.) 356.

mortgagor of assignment of mortgage.-Barnes Refusal of trial court to vacate mechanic's v. Long Island Real Estate Exch. & Inv. Co. lien for failure to sue within 30 days after no

| (Sup.) 951. tice, as required by Code Civ. Proc. $ 3417, held

Mortgagee, which had assigned mortgage and to be a proper exercise of discretion.-William

then received payment through its financial H. Jackson Co. v. Haven (Sup.) 356.

officer, held liable to discharge mortgage.-$ 2, Enforcement.

Barnes v. Long Island Real Estate Exch. & A fraudulent grantee of real estate held en- | Iny. Co. (Sup.) 951. titled to contest the validity of a mechanic's lien,

& 2. Payment or performance of conwhere the conveyance was good as between the

dition, release, and satisfaction. parties thereto.-Toop v. Smith (Sup.) 326.

Contingent remaindermen held necessary parDefendant in mechanic's lien suit, who has ties to a suit to set aside satisfactions of cerfiled no lien as required by mechanic's lien law tain mortgages on real estate.-New York Se(Laws 1897, p. 545, c. 419), held not entitled to curity & Trust Co. v. Schoenberg (Sup.) 359. a personal judgment under Code Civ. Proc. $ 3412.-Deane Steam Primp Co. v. Clark (Sup.) 851.


Continuance in civil actions, see "Continuance."

Dismissal of action, see "Dismissal and NonRequired by statute of frauds, see "Frauds, suit," 1. Statute of," $ 4.

Dismissal or nonsuit on trial, see "Trial," $ 6.

New trial in civil actions, see "New Trial," $ 2. MERGER.

Opening or setting aside' default judgment, see

"Judgment," & i. Of cause of action in judgment. see "Judg. Quashing indictment or information, see "Inment," $ 5.

_dictment and Information," $ 1. of liability of members in judgment against

Relating to pleadings, see "Pleading," $ 5. association, see "Associations."

Service of motion papers on attorney general,

see "Attorney General."

Striking cause from calendar, see "Trial,” & 2. MINORS.

Striking out evidence, see "Trial," $ 4. See "Infants.”

An order overruling motion to set aside a sub

pana held conclusive that the subpoena was MISREPRESENTATION.

| properly issued, appeal therefrom having been

abandoned.--In re Randall (Sup.) 294. See "Fraud.”

An order entered without notice to plaintiff, Affecting validity of contract of sale, see containing no reference to an amended com"Sales," & 1.

plaint on which it is based, should be resettled By broker, see “Brokers," $ 3.

on motion of plaintiff.-Allen v. Becket (Sup.)


A motion to resettle an order entered without

warrant should be denied.-Allen v. Becket Of contract, see “Contracts," $ 3.

(Sup.) 1011. Of lease, see "Landlord and Tenant," $ 2.

The entry of an order before 24 hours had

elapsed after it was granted does not render it MORTGAGES.

void, but only irregular.-Allen v. Becket (Sup.)

1012. Agreement by mortgagee as to disposition of Where an order is entered irregularly by proceeds of mortgage sale within statute of plaintiff, a duplicate entered by defendant should frauds, see "Frauds, Statute of," & 1.

be set aside on plaintiff's motion.-Allen v. Liability of first mortgagee to second mort- Becket (Sup.) 1012.

gagee for misrepresentation as to amount due,

see "Fraud," $ 2. Of personal property, see "Chattel Mortgages."

MUNICIPAL CORPORATIONS, $1. Assignment of mortgage or debt. See "Counties"; "Schools and School Dis

Under the express provisions of Laws 1896, tricts," $ 1. p. 616, c. 547, $ 271, the recording of an assign-Authority of officers as to establishment of ment of a mortgage is not of itself notice to the railroad crossings, see "Railroads," $ 1.

and 118 New York State Reporter City marshal, see "Sheriffs and Constables,” | tired on a pension while under suspension on $ 2.

charges of misconduct.-People v. Greene (Sup.) Injunctions affecting, see "Injunction," $8 1, 2. 673. Liability of street railroad company for injury

The determination of the police commissioner, to police officer directing operation of car, see

on trial of a police officer for improper conduct, "Street Railroads," § 1.

will not be disturbed; there being testimony Mandamus, see "Mandamus," $ 1.

which, if believed, supports it.-People v. PartMunicipal courts, see "Courts," & 2.

ridge (Sup.) 779. Ordinances relating to intoxicating liquors, see "Intoxicating Liquors."

Dismissal of a policeman from the force on a Street railroads, see "Street Railroads."

third conviction by the police commissioner of

improperly using his club held proper.-People $1. Officers, agents, and employés. v. Partridge (Sup.) 779.

Refusal of civil service commissioners to cer- Information charging aldermen with interest tify the name of a captain of police on the in city contract held insufficient.-People v. pay roll held not justified by the evidence.- Mayer (Sup.) 817. People v. Ogden (Sup.) 73. Title and salary of captain of police held de.

8 2. Public improvements. terminable only by quo warranto.-People v. Og

A notice to a contractor to commence work on

a street improvement on a specified date, which den (Sup.) 73.

was received after the time named for comUnder Greater New York Charter 1897,

mencing the work, held sufficient to require the Laws 1897, p. 399, c. 378, $ 1103, the position contractor to commence work in a reasonable of a school teacher in the city of New York is time.-Masterson v. City of New York (Sup.) that of an employé, and not that of an officer 312. of the city.-Murphy v. Board of Education of City of New York (Sup.) 380.

In an action to recover a sum deducted by a

city from the contract price for delay pursuant Under Laws 1897, p. 273, c. 378, 8 779, as to contract, evidence held sufficient to require a amended by Laws 1901, p. 321, c. 466, and determination by the jury as to whether the Greater New York Charter, p. 257, § 739, the commissioner, in making the certificate as to fire commissioner held authorized to remove a overtime, was not actuated by bad faith.-Masfire marshal only after a trial.-People'y. Stur-terson v. City of New York (Sup.) 312. gis (Sup.) 403.

Contract for paving held let to the lowest bid3 Laws 1901, p. 122, c. 466, $ 290, relative der, in accordance with the requirements of the to the police force of New York City, held to city charter.Sisson v. City of Buffalo (Sup.) apply only to persons who continued in the de

325. tective service from April 1, 1901, until January, 1902, when the act took effect January,

Whether commissioners, appointed to assess 1902.-People v. Greene (Sup.) 484.

damages caused by changes of grade of streets,

filing their decision dismissing the claim of a A patrolman, assigned to duty in the de

landowner with the comptroller, did so pursutective bureau, held not acting under such ap

ant to or in the absence of statute making provipointment, so as to bring him within 3 Laws sion for such filing, held immaterial.-People v. 1901, p. 122, c. 466, § 290.--People v. Greene Leonard (Sup.) 341. (Sup.) 484.

A landowner, whose claim for damages causEvidence held sufficient to support a finding led by changes of grade of streets has been disthat a policeman falsely accused a roundsman

missed by the commissioners, held entitled to reof attempting extortion of a sum of money.

view the decision by certiorari or by moving the People v. Partridge (Sup.) 487.

court to reopen the matter.-People v. Leonard Under the provisions of the Greater New (Sup.) 341. York Charter, the police commissioner held! The decision of commissioners. appointed to authorized to dismiss a policeman, where the assess the damages caused by changes of street return of his trial by a deputy showed a find

grades, dismissing a claim, held final as to them. ing that the policeman was guilty of miscon

|--People v. Leonard (Sup.) 341. duct.-People v. Partridge (Sup.) 487.

A contractor, under contract for the construcUnder Laws 1892, p. 1657, c. 681, § 5, relating tion of a city 'sewer, held not justified in relyto officers holding over, there must be a spe-ing on the drawing annexed to the specifications cial election to fill the office of village trustee, as a warranty as to the depth at which rock where there was a failure to elect at the regu- would be found.-Kelly V. City of New York lar election.-In re Travis (Sup.) 534.

(Sup.) 349. Member of Brooklyn borough headquarters Under Revised Buffalo City Charter, § 11, squad held entitled to position as detective ser subd. 17, and sections 397, 398, held, that paygeant under Greater New York Charter, Laws

ing contracts must be let to the lowest respon1897, p. 115, c. 378, $ 320, and Revised Char

sible bidder.-People v. City of Buffalo (Sup.) ter, Laws 1901, p. 122, c. 466, 8 290.--People 434. v. Greene (Sup.) 565.

Under Revised Buffalo City Charter, $ 283, Under Consolidation Act, Laws 1888, p. 1007, relating to contracts by municipal authorities. c. 583, tit. 11, $ 42, and Greater New York the authorities could not reject the lowest bidCharter, Laws 1901, p. 154, c. 466, § 335, ader and accept a higher one.-People v. City of policeman held not to have the right to be re- | Buffalo (Sup.) 434.

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