JUSTICES OF THE PEACE.

See Appeal, § 1074; Courts, § 30.

IV. PROCEDURE IN CIVIL CASES. $873, 74 (N.Y.Co.Ct.) A motion for a change of justices under Code Civ. Proc. § 3151, on the ground that the defendant expected to prove by the justice that the plaintiff stated he had no cause of action, held insufficient. Davis v. O'Day, 137 N. Y. S. 411.

A justice's order denying a motion for a change of justices, which stated that the present justice was not a material witness, as set forth in the defendant's affidavit, held not insufficient for containing in addition the unsworn statement of the justice that the matters contained in the affidavit were not true.-Id.

881 (N.Y.Co.Ct.) Under Const. 1869, art. 6, § 18, and Amsterdam City Charter, § 50, service of process issued from a justice of the city within the county held sufficient.-Davis V. O'Day, 137 N. Y. S. 411.

§ 82 (N.Y.Co.Ct.) A return by an officer of a summons from a justice court showing service on the defendant, but not stating where servicè was made, prima facie confers jurisdiction on the justice.-Davis v. O'Day, 137 N. Y. S.

411.

§ 84 (N.Y.Co.Ct.) A general appearance before a justice and interposition of such defenses as the defendant had held not a waiver of an objection to a refusal of the justice to change justices on special appearance.-Davis v. O'Day, 137 N. Y. S. 411.

appliances and supply heat and water, and may omit such service pending necessary repairs, on failure, notwithstanding constant efforts at repairs, to supply heat, must reconstruct the plant or introduce a new one.-Ollwerter v. Escher, 137 N. Y. S. 881.

(E) Injuries from Dangerous or Defective Condition.

faith leased his entire building to a lessee, who § 164 (N.Y.Sup.) A landlord, who in good agreed to keep the premises in good repair at subtenant of a room in a building, caused more his own cost, is not liable for injuries to a than a year later by a defective floor.-Jenkins v. Gruen, 137 N. Y. S. 853.

§ 168 (N.Y.Sup.) A landlord cannot escape liability for injury to a tenant, caused by ed by Tenement House Law, § 21, because she treads on cellar stairs not of the width requir did not carry a light with her; the accident occurring on her first use of the stairs, which she had a right to assume were constructed as required by law.-Phelps v. Kaufman, 137 N. Y. S. 345.

§ 169 (N.Y.Sup.) In an action against a landlord for injuries to a third person by falling on stairs at a place where the light was inadequate, held, that his negligence in descending without holding to the railing was a question for the jury.-Downs v. Brown Realty Co., 137 N. Y. S. 327.

JUSTIFICATION.

See Libel and Slander, § 94.

KNOWLEDGE.

See Evidence, § 65; Vendor and Purchaser, §§ 228, 229.

LACHES.

snow in front of an apartment house, and that § 169 (N.Y.Sup.) Proof that there was ice and a tenant, upon leaving it, slipped upon the ice and was injured, and that she afterwards accused the janitor of having thrown soapy water on the sidewalk, does not establish any cause of action.-Pearlman v. Wahlig & Sonsin Co., 137 N. Y. S. 876.

VIII. RENT AND ADVANCES.

(A) Rights and Liabilities.

§ 186 (N.Y.Sup.) Where a municipal corpora tion, after the expiration of a lease, continued

LANDLORD AND TENANT.

See Accord and Satisfaction, $$ 4, 27; Brokers, § 63; Contracts, § 303; Evidence, 444; Joint Adventures, § 5; Judgment, 553; Life Estates, § 25; Mechanics' Liens, 73.

VII. PREMISES, AND ENJOYMENT AND USE THEREOF.

(D) Repairs, Insurance, and Improvements.

§ 152 (N.Y.Sup.) A landlord, stipulating that he will maintain proper heating and hot water

sence of allegation and proof of eviction, though possession was somewhat interfered with.-Lar sen v. City of New York, 137 N. Y. S. 144.

(B) Actions.

§ 231 (N.Y.Sup.) In an action for rent, in which defendant counterclaimed for false representations, defendant's uncontradicted testimony held to entitle him to judgment.-Hatasatah Realty Co. v. Gulick, 137 N. Y. S. 787.

§ 231 (N.Y.Sup.) In an action on a lease against the guarantor of the lessee for unpaid rent, the burden is upon the defendant to establish that an act of eviction set up as a defense was done by the landlord, or under his authority.-Katz v. Alvord, 137 N. Y. S. 870.

was permitted to maintain and operate it for over 30 years, unmolested by the state, he became a licensee, and his rights could be terminated without compensation only by giving him a reasonable notice to remove the property.Watson v. Empire Engineering Corporation, 137 N. Y. S. 231.

LIENS.

See Attorney and Client, §§ 190, 192; Judgment, 563; Livery Stable Keepers, § 8; Mechanics' Liens; Mortgages; Municipal Corporations, § 373; Vendor and Purchaser, § 229; Wills, § 732.

LIFE ESTATES.

See Executors and Administrators, § 298; Wills, §§ 15, 597, 614, 687.

§ 15 (N.Y.Sur.) What is "income" from capital stock, to which a life tenant is entitled under a will, as distinguished from "principal," to which the remainderman is entitled, defends largely on testator's presumed intention.-In re Bunker's Estate, 137 N. Y. S. 104.

A transfer of assets by a railway company to a trustee and subsequent issue of participation certificates by the trustee do not constitute a "dividend" on stock, so as to entitle a life tenant under a stockholder's will to it as against the remainderman.-Id.

$25 (N.Y.Sup.) A lease given by a life tenant terminated at the option of remaindermen on the landlord's death.-Hinton v. Bogart, 137 N. Y. S. 697.

Forfeiture of lease given by a life tenant at her death held waived by the receipt of rent thereafter by remaindermen.-Id.

Where certain remaindermen continued to receive rent from the lessee of the life tenant after the life tenant's death without dispossession, the relation of landlord and tenant was not interrupted, and the tenant was liable under the original contract.-Id.

LIMITATION OF ACTIONS.

II. COMPUTATION OF PERIOD OF

LIMITATION.

(A) Accrual of Right of Action or Defense.

$60 (N.Y.Sup.) An action to quiet title and remove a cloud thereon, and incidentally to enjoin defendant's interference with plaintiff's lands under water, by reason of its nature, is Gamble Mfg. Co., 137 N. Y. S. 737. not barred by limitations.-Dooley v. Proctor &

(C) Personal Disabilities and Privileges. § 72 (N.Y.Sup.) The 10-year statute of limitation against an action to set aside a judgment held to begin to run from the time of the sale of the property, and not from the date of of action would be extended only one year after the majority of infant defendants, whose right their majority by Code Civ. Proc. § 396.-Ford v. Clendenin, 137 N. Y. S. 54.

(H) Commencement of Action or Other Proceeding.

$120 (N.Y.Sup.) The running of the limitation of actions against New York City by Greater New York Charter (Laws 1901, c. 466) § 261, as amended by Laws 1906, c. 550, held not suspended, under the terms of Code Civ. Proc. § 405, by the commencement of an action in the City Court, which had no jurisdiction. Gaines v. City of New York, 137 N. Y. S. 964.

LIQUOR SELLING.

See Intoxicating Liquors.

LIS PENDENS.

§ 22 (N.Y.Sup.) Code Civ. Proc. § 1671, held terest in the property therein described superinot to give a party filing a lis pendens an inor to the rights of another under an unrecorded deed, who was not made a party to the action.-Nugent v. Foley, 137 N. Y. S. 705.

$24 (N.Y.Sup.) Under Code Civ. Proc. § 1671, held, that service of an answer by a junior mortgagor in mortgage foreclosure, setting

I. STATUTES OF LIMITATION. (B) Limitations Applicable to Particular Actions.

§ 39 (N.Y.Sup.) An action to have a judgment and sale adjudged null and void for want of jurisdiction, or to impeach such sale for constructive fraud in the purchase by a trustee, held subject to the 10-years limitation prescribed by Code Civ. Proc. $$ 388, 396.-Ford v. Clendenin, 137 N. Y. S. 54.

Though partition or ejectment might be maintained to recover land which was the subjectmatter of a judgment, held, that the 10-year limitation prescribed by Code Civ. Proc. § 388, for proceedings not specially provided for, applied to an action to set it aside for want of jurisdiction over the subject-matter.-Id.

The 10-year limitation prescribed by Code Civ. Proc. 388, applies to an action to set aside a judgment, invalid because rendered without jurisdiction of the parties defendant.-Id.

which the junior mortgagor had no security, operated as notice to a purchaser of that lot; lis pendens having been filed.-Hubbard v. Lydecker, 137 N. Y. S. 714.

LIVERY STABLE KEEPERS.

$7 (N.Y.Sup.) Where plaintiff delivered to defendant for storage in his garage an auto body in apparently good condition, and the same, when returned nearly three years later, was broken and the upholstery moth-eaten, and an expert proved that by the usual methods the body would not have been damaged to the extent that it was damaged, there was a prima facie case of negligence of defendant, who, to escape liability, must prove freedom from negligence.-Wimpfheimer v. A. T. Demarest & Co., 137 N. Y. S. 908.

§8 (N.Y.Sup.) A garage keeper, who had actual possession of taxicabs kept in his garage, had a lien thereon, unless it was barred by a former judgment.-Cuneo v. Freeman, 137 N. Y. S. 885.

I. THE RELATION.

(A) Creation and Existence.

§3 (N.Y.Sup.) In an action for services, it is
not necessary to establish a contract of employ-
ment that plaintiff should prove a consideration
other than the services rendered.-Butterly v.
Deering, 137 N. Y. S. 836.

86 (N.Y.Sup.) Evidence held to warrant a
finding that defendant contracted to employ
plaintiff to perform clerical services at specified
salary, and also to solicit retainers at a speci-
fied commission.-Butterly v. Deering, 137 N.
Y. S. 836.

89 (N.Y.Sup.) That a salesman held over aft-
er the expiration of a second six-months period
of employment did not give rise to a presump-
tion that the parties had agreed to a renewal
of the employment contract for a third six-months
period.-Moskowitz v. Mawhinney, 137 N. Y.
S. 903.

II. SERVICES AND COMPENSATION.
(B) Wages and Other Remuneration.
§73 (N.Y.Sup.) Where defendant either dis-
charged plaintiff or consented to his leaving his
employment, defendant could not defend an ac-
tion for services on the theory that plaintiff
left before the end of the term.-Butterly v.
Deering, 137 N. Y. S. 836.

That a servant, in leaving his employment,
unintentionally gathered up papers on his desk,
among which were papers belonging to his em-
ployer, did not deprive him of the right to re-
cover for services rendered.-Id.

§ 80 (N.Y.Sup.) Where, in an action for serv-
ices rendered under contract to be paid for re-
tainers "procured" by plaintiff, it was impos-
sible to determine whether fees allowed were on
account of cases with which plaintiff merely had
something to do, as distinguished from procur-
ed, the judgment was unsustainable.-Butterly
v. Deering, 137 N. Y. S. 836.

III. MASTER'S LIABILITY FOR IN-
JURIES TO SERVANT.

(B) Tools, Machinery, Appliances, and
Places for Work.

§§ 101, 102 (N.Y.Sup.) A master need use on-
ly reasonable care to provide reasonably safe
tools and appliances, and he need not so act as
to make an accident resulting in injury to serv-
ants impossible.-Kwiatkowski v. Nichols Cop-
per Co., 137 N. Y. S. 586.

$$ 101, 102 (N.Y.Sup.) A master need not pro-
vide other instrumentalities than he has fur-
nished merely because of request of a servant;
and it is immaterial that there are better ap-
pliances, so long as those provided are reason-
ably safe.-Santiago v. John E. Walsh Stevedore
Co., 137 N. Y. S. 611.

§ 107 (N.Y.Sup.) A master, operating a cop-
per working plant and maintaining in the con-
duct of his business tracks supplied with cars
designed for moving heavy bodies about the
factory by the use of hand power, was not guil-
ty of negligence at common law or under the
Employer's Liability Act for failing to supply
the cars with safety brakes merely because the
tracks were constructed on a slightly descend-

ing grade.-Kwiatkowski v. Nichols Copper Co.,
137 N. Y. S. 586.

$116 (N.Y.Sup.) A plank extended between
brick piers along a steel tube which plaintiff
was engaged in painting held a scaffold within
Labor Law, & 18, and hence the court erred
in charging that defendant was not liable for
furnishing an unsafe scaffold, unless the loca-
tion was obviously dangerous.-Holsapple v.
International Paper Co., 137 N. Y. S. 450.

§ 117 (N.Y.Sup.) A "stiff-leg derrick" used in
sewer construction held a "structure" within
Labor Law, § 18; and hence a fall thereof due
to insufficient inspection resulting in the death
of an employé held actionable negligence.-
Stevens v. Stanton Const. Co., 137 N. Y. S.
1024.

$121 (N.Y.Sup.) The requirement, under La-
bor Law, § 81, that vats be properly guarded,
requires guards to prevent injury to employés
through splashing of liquids, as well as to pre-
vent their fall into vats, if such injury would
be foreseen by a reasonably prudent man in
using ordinary care.-Bell v. Proctor & Gam-
ble Mfg. Co., 137 N. Y. S. 266.

Machinery, permitted to remain unguarded, in
violation of Labor Law, § 81, is "defective.”
within the meaning of the Employer's Liabil-
ity Act.-Id.

§ 121 (N.Y.Sup.) Labor Law, § 20, requiring
the guarding of elevator shafts, held not to
require a division of the various wells of the
elevator shaft, so as to guard against possi-
ble accidents in the work of installing the ele-
vators. Swenson v. Charles T. Wills, 137 N.
Y. S. 516.

$129 (N.Y.Sup.) Any absence of lights was
not the proximate cause of the injury of a
stevedore acting as gangwayman in the loading
of a ship; he being able to see, the accident
occurring from the winchman starting up the
engine too quick, and he not depending on sight
for his actions, but they being controlled by
signals given by a whistle-Santiago v. John
E. Walsh Stevedore Co., 137 N. Y. S. 611.

$129 (N.Y.Sup.) In an action for the death
of an employé of a general contractor, caused
by materials used by one subcontractor falling
on him in consequence of the acts of an em-
ployé of a subcontractor, the former subcon-
tractor held not liable, while the second subcon-
tractor was liable.-Morton v. Smith Hoisting
Co., 137 N. Y. S. 829.

(C) Methods of Work, Rules, and Orders.
sisting in installing the elevators in a new
§ 134 (N.Y.Sup.) Where intestate, while as-
building, fell down an elevator shaft and was
killed, neither his master nor the general con-
tractor were bound to suspend work on the
building while the elevators were being in-
stalled, nor to anticipate possible missteps or
momentary losses of balance on the part of
employés.-Swenson v. Charles T. Wills, 137
N. Y. S. 516.

(D) Warning and Instructing Servant.

$150 (N.Y.Sup.) In an action for death of
a servant from falling down an elevator shaft
in a new building in process of construction,
defendants held not negligent in failing to pro-
vide a signal to warn him of the approach of