See Carriers, 316. Business III. ACTIONS FOR INJUNCTIONS. IV. PRELIMINARY AND INTERLOCU- INQUISITION. (A) Grounds and Proceedings to Procure. See Insane Persons, 137 (N.Y.Sup.) Where municipal officers, INSANE PERSONS. porary injunction by taxpayers, the injunction See Extradition, 41; Release, 57. (B) Continuing, Modifying, Vacating, or 161 (N.Y.Sup.) The granting of a motion 483. II. INQUISITIONS. 20 (N.Y.) In proceedings by married sisters One held not incompetent within Code Civ. III. GUARDIANSHIP. 163 (N.Y.Sup.) Motion of defendants to 175 (N.Y.Sup.) Issues on the whole case of 186 (N.Y.Sup.) Loss of profits after judg- Counsel fees incurred by plaintiffs on an ap 42 (N.Y.Sup.) A committee of the person of VI. CONTRACTS. 73 (N.Y.Sup.) The contract of a lunatic aft- INSOLVENCY. See Assignments for Benefit of Creditors; For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER INSPECTION. See Railroads, 9. INSTRUCTIONS. To jury, see Criminal Law, 824; Trial, 251. INSURANCE. policy as to proof of loss held erroneous.Robinson v. Sun Ins. Office, 152 N. Y. S. 1022. XX. MUTUAL BENEFIT INSURANCE. (B) The Contract in General. 712 (N.Y.Sup.) A certificate issued by a fraternal association, organized in Canada and authorized to do business in New York, held a New York contract.-McClement v. Supreme See Appeal, 193; Judgment, 17; Wit- Court, I. O. F., 152 N. Y. S. 136. nesses, 142. I. CONTROL AND REGULATION IN 17 (N.Y.Sup.) Where a foreign fraternal insurance association obtains permission to do insurance business in New York, it agrees to obey state laws and conform to the public policy of the state.-McClement v. Supreme Court, I. O. F., 152 N. Y. S. 136. XI. ESTOPPEL, WAIVER, OR AGREE- 388 (N.Y.Sup.) Insurer against liability for injury, except to employés under age, by its assumption of the defense and its acceptance of premium on the policy, held not to have waived or estopped itself from relying on exception.— Holland Laundry v. Travelers' Ins. Co., 152 N. Y. S. 92. XII. RISKS AND CAUSES OF LOSS. (D) Life Insurance. 445 (N.Y.) Second insurance policy issued after the expiration of the first held a separate contract, so that whether decedent's suicide was within one year from the date of the policy was determinable by the date of the second policy, -Gans v. Etna Life Ins. Co. of Hartford, Conn., 108 N. E. 443, 214 N. Y. 326. XVI. RIGHT TO PROCEEDS. 590 (N.Y.Sup.) The beneficiary, and not a judgment creditor of insured, held entitled to the proceeds of a life insurance policy, on death of insured.-Lowenstein v. Koch, 152 N. Y. S. 506. XVII. PAYMENT OR DISCHARGE, ROGATION. 597 (N.Y.Sup.) Stipulation in fire policy that loss shall not become payable until 60 days after notice, proof of loss, and award of appraisers, if required, is reasonable.-Robinson v. Sun Ins. Office, 152 N. Y. S. 1022. 719 (N.Y.Sup.) An amendment to the bylaws of a fraternal association organized in Canada held violative of the vested rights of a member residing in New York.-McClement v. Supreme Court, I. O. F., 152 N. Y. S. 136. Where an extraordinary assessment and lien was violative of vested contract rights of a member, the member could sue to set aside the assessment and remove the lien, though the assessment was authorized by the Parliament of the Dominion of Canada.—Id. (F) Actions for Benefits. 815 (N.Y.Sup.) In action for death benefits, refusal to permit defendant under the pleadings to prove decedent's expulsion held erroneous.Raab v. National Slavonic Society of the Unit ed States of America, 152 N. Y. Š. 1033. INTENT. See Contracts, 147; Conversion, 15; INTEREST. See Corporations, 316; Customs and Ts- III. TIME AND COMPUTATION. 60 (N.Y.Sup.) Compound interest can be recovered only upon some new and independeat agreement, made upon good consideration.Spain v. Talcott, 152 N. Y. S. 611. Plaintiff held not to have acquiesced in de fendant's compounding of interest monthly.-Id INTERNAL REVENUE. 19 (N.Y.Sup.) A transcript of a judgment of the Municipal Court of the City of New York is not required to be stamped, etc., b Revenue Act U. S. Oct. 22, 1914. § 5, before the same can be filed by the county clerk.-People et rel. Tinton Bldg. Corporation v. Ganly, N. Y. S. 67. INTERPLEADER. See Jury, 13. INTERSTATE COMMERCE. XVIII. ACTIONS ON POLICIES. 612 (N.Y.Sup.) While no suit can be maintained on a fire policy where a valid award has See Carriers, 30, 89, 159, 177. been made, yet, if the award is invalid for fraud, plaintiff may sue on the policy without first suing in equity to set it aside.-Wilbisky v. German Alliance Ins. Co. of New York, 152 N. Y. S. See Gifts, 1048. 668 (N.Y.Sup.) In an action on a fire pol icy, the ruling of the court that as a matter INTER VIVOS. 18-49. INTESTACY. of law insured had complied with terms of See Wills, 449. INTOXICATING LIQUORS. See Judgment, 648; New Trial, 70. IV. LICENSES AND TAXES. 44 (N.Y.) A "liquor tax certificate" is the printed and written acknowledgment of the receipt from the applicant of the statutory sum for the excise tax on the business of trafficking in liquors at a designated place for a designated term, which must be conspicuous in the designated place. In re Farley, 108 N. E. 417, 214 N. Y. 212. certificates for the same premises, the county treasurer should not permit a transfer authorizing the sale of liquor at any other place, unless all the certificates outstanding for that place are surrendered.-Id. 108 (N.Y.) Under Liquor Tax Law, § 27, subd. 2, and section 15, subd. 8, held that proceeding to revoke and cancel a liquor tax certificate must be commenced within the term designated in it or before its surrender within that term. In re Farley, 108 N. E. 417, 214 N. Y. 212. JOINDER. 193. 462 (N.Y.Sup.) Under Liquor Tax Law, § 17, the county treasurer must issue a certificate, See Action, if properly applied for and the taxes paid, though there is an outstanding, unrevoked, untransferred certificate authorizing traffic in liquors at the same place.-People ex rel. Young v. Shults, 152 N. Y. S. 301. Under Liquor Tax Law, § 8, subd. 9, as amended in 1911 (Laws 1911, c. 298), held, that the issuance of a liquor tax certificate to a place before expiration of 60 days from the filing of notice of abandonment thereof was unauthorized.-Id. 88 (N.Y.Sup.) In suing for the penalty of a liquor tax bond, the state commissioner of excise acts in a representative capacity for the people, and evidence admissible for or against them is admissible for or against him.-Farley v. Patterson, 152 N. Y. S. 59. 103 (N.Y.Sup.) An agreement, which was not an assignment within Liquor Tax Law, 8 12a, or sale, within section 26, and which intended to leave title in the dealer, held not to vest in a brewing company title to the dealer's liquor tax certificate.-People ex rel. Spang v. Carey, 152 N. Y. S. 569. An attempted assignment of a liquor tax certificate prior to its issuance is ineffective.-Id. An attempted transfer of a liquor tax certificate is ineffective, unless the certificate is presented to the deputy commissioner of excise and his consent to the transfer is indorsed thereon, as provided by Liquor Tax Law, § 26.-Id. Where an agreement did not purport to assign a liquor tax certificate as collateral, it was not necessary that notice of abandonment and petition for transfer subsequently filed by the dealer under Liquor Tax Law, § 8, subd. 9, be accompanied by the alleged assignee's consent. -Id. An order of the deputy commissioner of excise permitting a liquor dealer to abandon the premises for which a liquor tax certificate was issued, and to transfer the certificate to other premises and to an assignee, pursuant to Liqnor Tax Law, §§ 25, 26, held proper.-Id. 48; Parties, 14; Pleading, JUDGMENT. See Ambassadors and Consuls, 6; Appeal, 314; Infants, 110; Internal Revenue, 19; Mortgages, 497: Municipal Corporations, 871; Partnership, 219; Principal and Agent, 145, 197; Release, 38; Wills, 344. I. NATURE AND ESSENTIALS IN 17 (N.Y.Sup.) Service of process on plaintiff fraternal insurance association in former suit against it in Illinois held insufficient, under Hurd's Rev. St. Ill., 1913, c. 110, § 8, to support a judgment which could be pleaded in bar of its suit on the same issues in this state.Famobrosis Society v. Royal Benefit Society, 152 N. Y. S. 84. Unauthorized appearance of attorney for plaintiff in suit in courts of Illinois held not to sustain judgment in such suit, so as to render it pleadable in bar of plaintiff's action against defendant in this state.-Id. IV. BY DEFAULT. (A) Requisites and Validity. 106 (N.Y.Sup.) A defendant, impleaded individually and as a corporation, not having answered the complaint alleging a cause of action against him individually, is in default; and plaintiff is entitled to relief against him, both individually and as a corporation.-Sanford v. Hart, 152 N. Y. S. 869. (B) Opening or Setting Aside Default. 138 (N.Y.Sup.) Where an attorney refuses to proceed before a judge having the right to hear a case, he has had his day in court, and cannot claim another opportunity to present his case.-Kugelman v. Katz, 152 N. Y. S. 365. 104 (N.Y.Sup.) In view of Liquor Tax Law, § 27, subd. 2, held, that the holder of a liquor 143 (N.Y.Sup.) Withdrawal of defendants' tax certificate was not required to institute pro- attorney from the case previous to trial, after ceedings to revoke a certificate illegally issued denial by judge of his request for a continuance, to the same place before expiration of 60 days held to work an involuntary default against defrom filing of notice of abandonment, as a condi- fendants, entitling them to have judgment, ention precedent to his right to require that the tered upon an inquest against them, set aside. county treasurer permit a transfer of his certifi--Kugelman v. Katz, 152 N. Y. S. 365. cate.-People ex rel. Young v. Shults, 152 N.144 (N.Y.Sup.) A default judgment against Y. S. 301. plaintiff, and for defendant, interposing a counWhere there are several valid outstanding terclaim, without evidence to sustain it, will be For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER vacated.-Boutross v. Beilouney, 152 N. Y. S. 988. (B) Persons Concluded. 670 (N.Y.Sup.) Judgment against trustee i his individual capacity held not to cordle V. ON MOTION OR SUMMARY PRO- him in his representative capacity.-Fisher v. CEEDING. Johnson, 152 N. Y. S. 944. (C) Matters Concluded. 713 (N.Y.Sup.) A judgment in an action to construe a will, in which all the legatees we parties, is conclusive in a subsequent action a legatee for life to recover income, computed from the death of testatrix.-Lawrence v. Little field, 152 N. Y. S. 130. 721 (N.Y.Sup.) A judgment in a prior tion between plaintiff and defendant held not adjudication that advances made by plaints testator were not for services rendered by de fendant.-Newcomb v. La Roe, 152 N. Y. S. 6. 735 (N.Y.Sup.) In an action against a colecting bank for negligence in failing to present a note for payment, so as to charge the indorse the judgment roll in an action by the plaintif against the indorser, in which he had fal to recover, held not conclusive evidence of the bank's negligence.-Gilpin v. Columbia Nat Bank, 152 N. Y. S. 619. XVII. FOREIGN JUDGMENTS. 818 (N.Y.Sup.) The rule that the authority of an attorney to represent a party to a suit cannot be collaterally attacked in attempting to invalidate a judgment has no application where the judgment was recovered in the eart of another state.-Famobrosis Society v. Ro Benefit Society, 152 N. Y. S. 84. 818 (N.Y.Sur.) Const. U. S. art. 4. § L requiring full faith and credit to judgments of other states, held not to prevent courts of New York from inquiring into jurisdiction of cer of another state to render judgment upon whi a party relies in invoking aid of courts of th state. In re Akin's Estate, 152 N. Y. S. 319 329 (N.Y.City Ct.) Under Const. U. S. art 6, § 2, the judgments of the consular courts of China, established by Rev. St. U. S. § 4084130 (U. S. Comp. St. 1913, $$ 7655-7676, titled to the same weight in the state court to effectuate the treaty with China, are ef the judgments of other federal courts located outside the state of the forum.-Newman 1. Basch, 152 N. Y. S. 456. Under Rev. St. U. S. § 916 (U. S. Comp. St. 1913, § 1540), a judgment of the Consule Court of China may be sued upon in courts of New York.-Id. A judgment of the Consular Court of China is entitled, under the United States Constit tion, to full faith and credit in the courts of every state.-Id. XXI. ACTIONS ON JUDGMENTS. (A) Domestic Judgments. 648 (N.Y.Sup.) In suit on a liquor tax bond for breach of condition, a conviction of the principal for a violation of such law was conclusive between the people and the principal as breach of condition.-Farley v. Patterson, 152910 (N.Y.City Ct.) The Consular Court of N. Y. S. 59. to A judgment of acquittal in a criminal action is not admissible in evidence against the people in a civil suit against the defendant, as on a liquor bond.-Id. China is a court of record, so that an act on its judgments is barred in 20 years, under Code Civ. Proc. § 376, and not in 6 years, der Code Civ. Proc. § 382. subd. 7.-Newman v. Basch, 152 N. Y. S. 456. JUDICIAL SALES. See Executors and Administrators, 340; Quieting Title, 7. right to a jury trial was waived when not de320-152 N. Y. S. 822. manded in his objections.-In re Holme's Will, After the time for demanding a jury trial in 50 (N.Y.Sup.) A purchaser at a judicial contested proceedings to probate a will, held, sale is charged with notice of whatever an exerror to permit contestant to withdraw his obamination of the record title would reveal.jections and refile same with a demand for jury trial added thereto.-Id. Pillmore v. Walsworth, 152 N. Y. S. 344. See Courts. JURISDICTION. JURY. See Trial, 136–178. II. RIGHT TO TRIAL BY JURY. 10 (N.Y.) Const. U. S. Amend. 7, as to trial by jury, does not limit state action.-Middleton v. Whitridge, 108 N. E. 192, 213 N. Y. 499. 10 (N.Y.) The right of trial by jury is preserved by Const. art. 1, § 2, in all such cases as existed in the time of the adoption of Const. 1846-Moot v. Moot, 108 N. E. 424, 214 N. Y. 204. (N.Y.Sup.) There is no constitutional right of trial by jury, within Code Civ. Proc. § 2538, as to probate courts, of the issues of release and fraud, raised by the answer and reply, relative to right of petitioner to maintain the proceeding for accounting by an executrix and testamentary trustee. In re Fox's Estate, 152 N. Y. S. 431. 13 (N.Y.Sup.) Where, in replevin, the bailor of the goods in controversy was substituted as defendant for the bailee, pursuant to Code Civ. Proc. § 820, authorizing interpleader, the action became an equitable one, and neither party had the right to trial by jury.-Gleason v. Bush, 152 N. Y. S. 54. Where an adjournment was granted on stipulation that the case should be tried before the Surrogate, necessarily without a jury, held error to grant contestant's demand made thereafter for a jury trial.-Id. 28 (N.Y.Sup.) Right, under Code Civ. Proc. § 970, of jury trial of issues of fact in partition, held not waived by plaintiff securing adjournments when case appeared on Special Term calendar; he not having noticed it for 356. trial thereon.-Barker v. Barker, 152 N. Y. S. 37 (N.Y.) Power of Appellate Division, under Code Civ. Proc. § 1317, as amended by Laws 1912, c. 380, to make new findings of fact and final adjudication on the merits, in a case triable of right by jury, held limited by Const. art. 1, § 2.-Middleton v. Whitridge, 108 N. E. 192, 213 N. Y. 499. Const. art. 1, § 2, guaranteeing only the substantial right of trial by jury, is not contravened where the Appellate Division makes such final disposition of the case as the trial court should have made.-Id. The final disposition of a jury case, which Code Civ. Proc. § 1317, as amended by Laws 1912, c. 380, authorizes the Appellate Divihave made, and so not one invading the province sion to make, is such as the trial court should of the jury.—Id. · LABOR UNIONS. See Injunction, 104. LACHES. Though an action at law was changed to one in equity because of an order of interpleader, pursuant to Code Civ. Proc. § 820, the par- See Street Railroads, 34; Taxation, ties to the litigation could treat it as a common-law action.-Id. 14 (N.Y.Sup.) Defendant, sued for contribution by his cosurety, is entitled to a jury trial; an action at law being maintainable, the complaint conforming to such an action, and no issue requiring aid of a court of equity appearing.-Parshelsky v. Palley, 152 N. Y. S. 351. 25 (N.Y.) In view of Laws 1787, c. 69, 2 Rev. Laws 1813, p. 198, and 2 Rev. St. [1st Ed.], pt. 2, c. 8. tit. 1, art. 3, § 40, Const. art. 1, § 2, Gen. Rules of Practice. No. 31 as amended in 1910, is invalid in so far as it provides that the right to trial by jury of the issue of adultery in a divorce case is waived by failure to demand within 20 days.-Moot v. Moot, 108 N. E. 424, 214 N. Y. 204. Though a party by his failure to demand waived his right to insist on jury trial, the court may disregard the default and grant jury trial. Id. 25 (N.Y.Sup.) Under Code Civ. Proc. $$ 2537, 2538, 2617, held, that the contestant's 496. LANDLORD AND TENANT. See Frauds, Statute of, 129; Master and THE RELATION. 9 (N.Y.Sup.) A purchaser, who goes into possession under contract of sale, does not become a tenant, and is not liable to the vendor for the use of the land.-Goetzmann v. Caldwell, 152 N. Y. S. 491. II. LEASES AND AGREEMENTS IN (A) Requisites and Validity. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER |