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See False Imprisonment.

See Adoption; Deposits in Court; Divorce, &

332; Guardian and Ward; Limitation of IMPROVEMENTS.

Actions, 8.72;, Master and Servant, &$ 278, See Eminent Domain, $ 62; Estoppel, § 93;

286; Municipal Corporations, $ 706; Parent Judgment, $ 747.

and Child; Theaters and Shows; Wills, §

657; Witnesses, & 275. INCOME.

VII. ACTIONS. See Trusts, 88 274, 331; Wills, $8 524, 529, 8 80 (N.Y.Sup.) The appointment of a guard564, 687.

ian ad litem for nonresident infant defendants

is a nullity, where made before service of INCOMPETENT PERSONS.

process upon them was complete.-Ford v.

Clendenin, 137 N. Y, S. 54.
See Insane Persons.

$85 (N.Y.Sup.) A guardian ad litem of in

fants, who gives the undertaking required by INCORPORATION.

Code Civ. Proc. $ 744, and who without order of

court deposits as such guardian in savings bank See Corporations, 14.

proceeds of actions brought by him for the in

fants, is not relieved of liability to the inINDEMNITY.

fants.-Harris v. Broadway Savings Inst., 137

N. Y. S. 234.
See Guaranty; Insurance, $ 388; Principal
and Surety.

INDEPENDENT CONTRACTORS. See Courts, $8 36, 188–190.
See Master and Servant, $ 316.


See Wills, 88 163, 164, 166.
See Mandamus, $ 81.


See Indictment and Information.
See Criminal Law, $$ 42, 1024; False Pretens-

es, &$ 4, 26, 29, 31; Gaming'; Perjury.8 25; See Corporations, $8 201, 320; Limitation ou
Theaters and Shows; Witnesses, $ 366.

Actions, § 60; Monopolies, § 24; Navigable

Waters, $$ 36, 37; Party Walls,

II. SUBJECTS OF PROTECTION AND $ 63 (N.Y.Sup.) An indictment for violation

of the local option law, alleging that the four
questions provided by Liquor Tax Law, § 13,

(B) Property, Conveyances, and incum

were "duly submitted,” was sufficient without
expressly alleging the various preliminary

8 38 (N.Y.Sup.) A railroad company held ensteps; the term "duly submitted” implying titled to restrain a village from work on certhe existence of every fact essential to the tain land claimed by it to have been dedicated proceedings.-People v. Yarter, 137 N. Y. S. by the railroad company to public use, pending 462.

the trial on the question of right.-Lehigh & $63 (N.Y.Co.Ct.), An allegation in an infor- / H. R. Ry: Co. v. Village of Warwick, 137 N. mation that accused "did unlawfuly operate" a

Y. S. 658. moving picture show, being a common show,

III. ACTIONS FOR INJUNCTIONS. mere conclusion of law.-People y. Wacke, 137 N. Y. S. 652.

$113 (N.Y.Sup.) A property owner held bar. $71 (N.Y.Co.Ct.) Under Code Cr. Proc. gred by laches from maintaining a suit to re145, defining information, requisites of informa- strain the elimination of certain

railroad grade tion stated. —People v. Wacke, 137 N. Y. S. 652. crossings, and the necessary alteration of cer

tain streets, and a bridge therefor.-Danner v. VII. MOTION TO QUASH OR DISMISS, New York & H. R. Co., 137 N. Y, s. 270. AND DEMURRER.

IV. PRELIMINARY AND INTERLOCU. $ 140 (N.Y.Sup.) It is discretionary with a

TORY INJUNCTIONS. trial court whether it will set aside a defective information on motion before arraignment, and (A) Grounds and Proceedings to Procure. unless the question is free from doubt the court $ 136 (N.Y.Sup.) The court, in a suit to canshould leave counsel to his demurrer or motion cei a contract, held not authorized to grant a in arrest of judgment.--People v. Herbert, 137 temporary injunction, on the ground of lack N. Y. S. 409.

or failure of consideration. New York Motion For cases in Dec. Dig, & Am. Dig. Key No. Series & Indexes see same topic and section (3) NUMBER

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Picture Co. v. Universal Film Mfg. Co., 137, person and property of an incompetent, and N. Y. S. 278.

the award of commissions to the committee, he The court, in a suit by a corporation to can- has no right to such commissions upon the corcel a contract, whereby it transferred its busi- pus of the estate.-In re Stratton, 137 N. Y. ness to defendant, and whereby its stockhold-S. 311. ers agreed not to engage in such business for $ 42 (N.Y.Co.Ct.) The petition of a commita specified period in any part of the United tee of the person and estate of an incompeStates or Canada, except Arizona, will not tent, on his annual accounting under Code Civ. grant a preliminary injunction, on the theory Proc. $ 2341, to be allowed to deduct one-half that the transaction is an illegal restraint of commissions for receiving the corpus of the estrade.-Id.

tate, must be denied ; his proper remedy being The court, in a suit by a corporation to can under section 2342.-In re Stratton, 137 N. Y. cel its contract, whereby, it transferred its S. 311. business of producing and distributing materials for the moving picture business to de- V. PROPERTY AND CONVEYANCES. fendant, on the ground that the contract is invalid as in restraint of trade, will not grant a

8 67 (N.Y.Sup.) One who, after being retemporary injunction on the motion of plain. stored to sanity, accepts the proceeds of a

rescission of a conveyance agreed to by his tiff.-Id. $ 137 (N.Y.Sụp.) Where it is doubtful wheth- action.—Newton v. Evers, 137 N. Y. S. 507.

committee, is estopped to repudiate the transer plaintiff, suing for the cancellation of contracts, will succeed, and interference by the

INSOLVENCY. court by temporary injunction may result in irreparable injury to defendant, if he finally See Assignments for Benefit of Creditors; Banksucceeds, the court will not at plaintiff's_mo ruptcy; Sales, $ 296. tion grant a temporary injunction.-New York Motion Picture Co. v. Universal Film Mfg.

INSTRUCTIONS. Co., 137 N. Y, S. 278.

To jury, see Trial, $$ 211-268. VII. VIOLATION AND PUNISHMENT. 8 223 (N.Y.Sup.) An injunction restraining

INSURANCE. the representatives of a labor union from inter See Parties; Trusts, $$ 11, 46, 58, 59, 134; fering with the trade and business of a firm

Vendor and Purchaser, $ 199. employing nonunion labor, to coerce it into employing union labor, is not violated by a rep: / VI. PREMIUMS, DUES, AND ASSESSresentative informing union employés of a third

MENTS. person that they are handling nonunion material, but leaving to the men the voluntary had, without plaintiff's consent, transferred, on

$ 198 (N.Y.Sup.) That an insurance company determination to remain at work or leave. its books or elsewhere, her interest in a policy Bossert v. United Brotherhood of Carpenters to some other person, does not constitute the and Joiners of America, 137 N. Y. S. 321. of a labor union from conspiring to interfere Ins. Co., 137 N. Y. S. 887. An injunction restraining the representatives basis of an action for the return of the pre

mium.-Lewis v. London & Lancashire Fire with the good will and business of a firm employing nonunion labor is not violated by a

VII. ASSIGNMENT OR OTHER TRANSrepresentative informing members of the union

FER OF POLICY. employed by a third person that they are handling nonunion material, and that by continuing 8 199 (N.Y.Sup.) Straight life policies are to do so they will violate the rules of the union nonnegotiable choses in action, and are assiga. and will be fined.-Id.

able.-Johnston v. Scott, 137 N. Y. S. 243. INNKEEPERS.


ABANDONMENT, OR RESCISSION See Intoxicating Liquors, $$ 154, 248; Theaters

OF POLICY. and Shows.

$ 238 (N.Y.Sup.) The "insured," under In-

surance Law, $ 122, providing that fire insur-
ance companies shall cancel any policy upon

the request of the insured, includes the mortSee Evidence, § 60.

gagee, for whose benefit a mortgage clause has IN PAIS,

been inserted.-Lewis y. London & Lancashire

Fire Ins. Co., 137 N. Y, S. 887.
See Estoppel, $$ 90, 93.



See Wills, § 421.


(E) Nonpayment of Premiams or Assess

8 365 (N.Y.Sup.) Under the express terms of

an accident insurance policy, a beneficiary, $ 41 (N.Y.CO.Ct.) Until the judicial settle- paying a monthly premium after it was due, ment of the accounts of the committee of the l held not entitled to recover for injuries sus

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tained before 12 o'clock the following day.-

Popovitz v. United States Health & Accident
Ins. Co., 137 N. Y, S. 788.

See Bills and Notes, $ 123; Contracts, 88 154-

212; Deeds, § 123; Mortgages, SS 115-151 ;
XI. ESTOPPEL, WAIVER, OR AGREE Statutes, 88 215–241; Trusts, 88 134, 140;


$ 376 (N.Y.Sup.) There can be no waiver of
forfeiture of an insurance policy by, an agent, See Depositions.
who the policy distinctly provides has no au-
thority to waive its provisions.-Scheeler v.

Casualty Co. of America, 137 N. Y. S. 811.
$388 (N.Y.Sup.) Silence on the part of an

See Indictment and Information, $ 63.
insurance company or its agents will operate

as an estoppel against claiming a forfeiture of
the policy only where it has misled insured. $ 38 (N.Y.Sup.) Certain alleged irregulari-
Scheeler v. Casualty Co. of America, 137 N. Y. ties in the submission of local option questions
S. 811.

occurring prior to the canvass of the votes held
$ 388 (N.Y.Sup.) An indemnity insurer, un not sufficiently proved to authorize a resubmis-
dertaking, with knowledge of the facts, the de- sion.-In re Norton, 137 N. Y. S. 376.
fense of an action against insured, and depriv Where a local option election had been prop-
ing insured of control, and preventing a set-erly held under Liquor Tax Law, $ 13, and the
tlement for a comparatively small amount, is, yotes canvassed and the return of the judges
after judgment against insured, estopped to declared and filed, failure of the inspectors to
deny that the accident is within the policy. make and tile a return and to seal and deliver
Rosenbloom v. Maryland Casualty Co., 137 n. the ballot box to the proper custodian did not
Y. S. 1064.

authorize a resubmission.-Id.
An indemnity insurer, controlling the defense
of an action against insured and neglecting to

appeal, may not defeat an action on the policy § 154 (N.Y.Sup.) Under Liquor Tax Law
on the ground that there had been no adjudica (Laws 1896, c. 112) § 13, as amended by Laws
tion by a court of last resort.-Id.

1897, c. 312, and Laws 1910, c. 485, where the

sale of liquor not to be drunk on the premises
XIV, NOTICE AND PROOF OF LOSS. was negatived, but the sale by hotel keepers
8 558 (N.Y.Sup.) A letter by the attorney of

was authorized, a hotel keeper, having secured
an insurer and his retention of proofs held sell liquors not to be drunk on the premises.-

a license to sell at his hotel, had no right to
not to be a waiver for the company of a pro: People v. Yarter, 137 N. Y. S. 462.
vision of the policy requiring insured to give
notice of his illness as soon as reasonably pos. IX. SEARCHES, SEIZURES, AND FOR-
sible.--Scheeler V. Casualty Co. of America,

137 N. Y. S. 811.

§ 248 (N.Y.Co.Ct.) Where a complaint for the

search of premises, conducted as a hotel, for

liquors, verified on July 15, 1912, alleged that
$ 640 (N.Y.Sup.) An accident insurance com: lager beer was sold on the premises June 14,
pany, sued on a policy, held entitled to rely on 1912, but the receipt of the officer shows that
a provision concerning time when renewal the liquors have been taken from the premises
would be effective, without specially pleading since the verification of the complaint, the same
it.--Popovitz v. United States Health & Ac- complaint cannot be used as the foundation of
cident Ins. Co., 137 N. Y. S. 788.

the issuance of another warrant thereon.-In re
$ 665 (N.Y.Sup.) Evidence held insufficient to Ingalls, 137 N. Y. S. 780.
support a judgment for intervener, claiming the $ 249 (N.Y.CO.Ct.) In a proceeding under Liq-
proceeds of a life policy by assignment.-Flynn vor Tax Law, $ 33, where the return of serv-
v. Prudential Life Ins. Co., 137 N. Y. S. 126. ices does not show that a copy of the warrant

containing a notice to all persons claiming any

interest in the liquors or vessels containing

them was posted on the premises, the service is
See False Pretenses, § 4; Fraudulent Con- illegal, and will be vacated.--In re Ingalls, '137
veyances, § 168; Life Estates, 8 15; Statutes, N. Y. S. 780.

215; Wills, '88 439, 440, 463, 481, 529,
545, 634.


See Criminal Law, $ 200.
See Courts, $ 189; Eminent Domain, $ 238;
Trusts, & 140; Usury; Vendor and Purchas-

er, 88 172, 196, 199.

$5 (N.Y.Sup.) Where five persons, including

defendant, associated together in a joint ven-

ture to lease mining property, which was nom-

inally leased in the name of a third person, and
See Injunction, 88 136, 137.

also to take an option to purchase in the name
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

137 N.Y.S.-75

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of one of the associates, not a party to the palpably unavailable as a matter of law.-LoD-
action, and the leased property and the pro- don v. Sclineider, 137 N. Y. S. 694.
ceeds are still in the custody of the nominal

$ 145 (N.Y.Sup.) In an action for conversion
lessee, defendant cannot be compelled in equi- of certain securities, facts held to show a meri-
ty to account to any of the other associates torious defense, entitling defendant to the va.
for their shares of the proceeds of the leased cation of a default judgment on terms.-Rycroft
property pursuant to the agreement of asso v. Pierce, 137 N. Y. S. 950.
ciation.-Bowman v. Furber, 137 N. Y. S. 560.

§ 151 (N.Y.Sup.) Defendant's statement that slegu

he did not appear on the trial because his son, JUDGES.

a necessary and material witness, was obliged See Constitutional Law, $ 48; Courts; Jus- to be in another state on the day preceding

, tices of the Peace; Motions.

and it would have jeopardized defendant's busi

ness interests, had he not been there, is a mere III. RIGHTS, POWERS, DUTIES, AND conclusion, and insufficient to entitle him to LIABILITIES.

an opening of his default.-Kugelman v. Merrisdiction of the person and the subject-matter show no satisfactory reason why defendant $36. (N.Y.Sup.) Where the court having ju- gentheim, 137 N. Y. S. 869.

$ 163 (N.Y.Sup.) Where the moving papers of the controversy imposes a fine for contempt, should be relieved of a default judgment, it is there is no civil liability on the part of the judge or those enforcing his orders, unless jur Hotel Co. v. Orleans Real Estate Co., 137 N.

an abuse of discretion to set it aside. -Cascade risdiction is subsequently divested, and it is shown that he acted out of actual malice.

Y. S. 1054. Bowman v. Seaman, 137 N. Y. S. 568.

$ 167 (N.Y.Sup.) Where a judgment on default was set aside on defendant giving an un


dertaking to pay any judgment plaintiff might

finally recover, and thereafter defendant filed a See Adoption, 16; Appeal, $$_91, 105, 864, counterclaim, which he withdrew, and consented 870, 874, 1175, 1180, 1194, 1195, 1212;' Con- to judgment for plaintiff on specified conditions, tracts, $ 350; Courts, $$ 30, 36, 99, 189; the judgment for plaintiff was within the unCriminal Law, $ 995; Limitation of Actions, dertaking, and, in the absence of fraud or col$$ 39, 72;. Principal and Surety; Process, Šlusion, was prima facie evidence against the 149; Receivers; Subrogation; Trusts, $ 331; surety:--E. R. Thomas Motor Branch Co, v, 1590 Usury, & 18; Wills, 88 346, 421, 432, 706.

United States Fidelity & Guaranty Co., 137 N.

Y. S. 1094.

VI. ON TRIAL OF ISSUES. $ 17 (N.Y.Sup.) A judgment against nonresi.

(B) Parties. dent defendants, entered before service of pro $ 239 (N.Y.Sup.) Inconsistency of the ver

614 cess by publication was complete, is void for dict, in an action against master and servant, lack of jurisdiction.—Ford v. Clendenin, 137 N. in finding against the master and for the serv: Y. S. 54.

ant, when the master could be liable only if the

servant was negligent, does not render void the III. ON CONSENT, OFFER, OR AD judgment against the master.- Pangburn . MISSION.

Buick Motor Co., 137 N. Y. S. 37. $ 84 (N.Y.Sup.) Where defendant admitted

(C) Conformity to Process, Plendings, liability on a cause of action for $30.05 and Proofs, and Verdict or Findings. set up a counterclaim, which was dismissed, plaintiff was entitled to judgment for that testified that a contract with defendant was

$ 250 (N.Y.Sup.) Where plaintiff pleaded and amount, and a judgment for defendant was er completed on a certain date, and that work roneous.--Schenck v. Fischer, 137 N. Y. S. 857.

was done thereafter under a separate contract IV. BY DEFAULT.

with different terms, a recovery for such sub

sequent work according to the terms of the (A) Requisites and Validity.

written contract was not warranted by the § 109 (N.Y.Sup.) Defendant, by refusing to England Ry. Co., 137 N. Y. S. 627.

pleadings and proof.-O'Hehir v. Central New go on with the trial and leaving the courtroom, heid to have suffered a deliberate default.-Cas XI. COLLATERAL ATTACK. cade Hotel Co. v. Orleans Real Estate Co., 137 N. Y, S. 1054.

(B) Grounds.

$ 490 (N.Y.Sup.) A plaintiff, suing to fore(B) Opening or Setting Aside Default.

close a mechanic's lien, may impeach a prior $143 (N.Y.Sup.) A default should be vacated, judgment, adjudging that he has no lien, by where defendant's counsel was engaged in the showing that he was not served with summous trial of another cause, without an opportunity and complaint in such action.-Callaban v. Gerto procure other counsel, and on a denial of a bereux, 137 N. Y. S. 996. motion to hold the case pending the completion of counsel's engagement.--Evans v. White, 137 XIII. MERGER AND BAR OF CAUSES N. Y. S. 1089.

OF ACTION AND DEFENSES. $ 145 (N.Y.Sup.) Vacation of a default is er (A) Judgments Operative as Bar. ror, where it appears that the default was de $ 540 (N.Y.Sup.) A judgment by a court of liberate, and that the defense relied upon is competent jurisdiction, unreversed, is conclu

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sive as between the same parties and those ments was permitted under Code Civ. Proc. $
claiming under them on the issues tried in the 1531, bars a further assertion of claims for im-
action.--Pierce v. Kinney, 137 N. Y. S. 475. provements.-Ketcham v. Deutsch, 137 N. Y. S.

$ 553 (N.Y.Sup.) A tenant, dispossessed for 402.
nonpayment of rent, having brought a proceed.
ing under Code Civ. Proc. $ 2259, to adjudicate

XXI. ACTIONS ON JUDGMENTS. his rights on redemption held not entitled, in a

(B) Foreign Judgments.
subsequent action against the landlord, to re-
cover any damage arising prior to the final or-

$ 946 (N.Y.Sup.) Under Code Civ. Proc, Cal. der in such proceeding.-- Terwilliger v. Brown-$283, a California court held to have authority ing, King & Co., 137 N. Y. S. 572.

to set aside a judgment entered to enforce a $ 563 (N.Y.Sup.) A judgment in an action to Wisconsin judgment, after the reversal of the foreclose a chattel mortgage on taxicabs, where original judgment upon notice to the attorney in a garage keeper appeared and set up'a claim who secured the California judgment for the to a lien, which does not recite what disposi N. Y. S. 1029.

nonresident plaintiffs.-Elis v. McGovern, 137 tion was made of such claim, is insufficient, in the absence of other evidence to show what XXII. PLEADING AND EVIDENCE OF was decided, to constitute a bar to a subsequent action based on such lien.-Cuneo V.


Freeman, 137 N. Y. S. 885.

8 949 (N.Y.Sup.) Defense alleging, recovery (B) Causes of Action and Defenses Merg- against joint tort-feasor and satisfaction by ed, Barred, or Concluded.

him held to sufficiently show that the recovery 8 585 (N.Y.Sup.) A former judgment in favor was on the same cause of action.-Berg v. of defendant in an action to recover for sery- | Bates, 137 N. Y. S. 1032. ices of a physician to a mutual beneficial as $ 951 (N.Y.Sup.) A party, relying on a forsociation, on the ground that plaintiff had been mer judgment as a defense to an action, has expelled, held no bar to a subsequent action to the burden of establisbing that it constitutes recover salary for the balance of his term, aft- a bar.-Cuneo v. Freeman, 137 N. Y. S. 885. er reversal of his expulsion.–Page v. Cohen, 8 951 (N.Y.Sup.) Where, in an action on a 137 N. Y. S. 116.

judgment, the defendants set up a judgment of
$ 590 (N.Y.Sup.) A personal judgment against another state, and the plaintiff, by a plea, set
a husband alone, in an action against him and up an order of the same court vacating such
his wife to foreclose a mechanics' lien, held no judgment, the burden is on the defendants to
bar to plaintiff's right to maintain a new action impeach the order.-Ellis v. McGovern, 137 N.
to enforce the lien against the wife.-Pierce v. Y. S. 1029.
Kinney, 137 N. Y. S. 475.
8 614 (N.Y.Sup.) Uncollected judgment against

the husband for a debt for labor and materials
in the improvement of the wife's real estate See Evidence, & 20.
held no bar to an action by the contractor to
foreclose a mechanics' lien. --Pierce v. Kinney,

137 N. Y. S. 475.

See Constitutional Law, $ 70.
(C) Persons Who may Take Advantage of
the Bar.

$ 631 (N.Y.Sup.) A demurrer to a defense by. See Executors and Administrators, $ 379; Lim-
one joint tort-feasor alleging the recovery of
judgment for the same cause against the other

itation of Actions, 8 39.
tort-feasor and a satisfaction thereof was im-
properly sustained.-Berg v. Bates, 137 N. Y.

S. 1032,

Where principal and agent were jointly lia- See Adoption, $.?; Contempt, § 57; Courts;
ble for aiding a debtor to transfer his property

Eminent Domain, 172; Executors and Adin fraud of his creditors, and the principal re

ministrators, 88 32, 379, Judges, $ 36; Jusceived a part of the proceeds, the recovery

tices of the Peace, 8 82; Municipal Corporaand satisfaction of a judgment against the

tions, 374; Trusts, 88 161, 168; Wills, 88 agent relieved the principal from liability in

211, 249,
both respects.-Id.

In an action against one of two joint tort-
feasors, the recovery and satisfaction of judg. See Trial, 88 315, 317.
ment against the other tort-feasor is a proper


$ 12 (N.Y.Sup.) Const. art. 1, § 2, in proCATION.

viding that trial by jury "in all cases where

it has been heretofore used shall remain in(D) Judgments in Particular Classes of violate forever," meant that questions of fact Actions and Proceedings.

shall be determined by juries, and not by the $ 747 (N.Y.Sup.) A

satisfied judgment in court.-Perlman v. Brooklyn Heights R. Co., ejectment, wherein a deduction for improve- 1 137 N. Y. S. 917.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

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