and 138 New York State Reporter
of the order opening a default which required § 5. Merger and bar of causes of action
the trustee to furnish an undertaking to meet
any deficiency occasioned by the default held
improper.-McLoughlin v. Collins Bldg. & Const.
Co. (Sup.) 620.
Parties defendant in foreclosure proceedings in
default held not entitled to notice of an amend-
ment of the complaint, and the judgment held
not more favorable than that demanded in the
original complaint within the meaning of Code
Civ. Proc. § 1207.-Hookey v. Greenstein (Sup.)
621.
Motion to open default to allow pleading dis-
charge in bankruptcy as a defense denied.-
Hitchings v. Simmons (Sup.) 794.
A notice of entry of an interlocutory judg-
ment held to sufficiently show that the judg-
ment was entered in the office of the clerk of
the City Court of the city of New York.-Four-
teenth Street Bank in City of New York v.
Strauss (Sup.) 956.
An objection to a notice of entry of an inter-
locutory judgment, in that the cover when
folded concealed the notice of entry, held frivo-
lous.-Fourteenth Street Bank in City of New
York v. Strauss (Sup.) 956.
If a default judgment is illegal defendant's
remedy is by motion to open the default, and,
if the judgment is erroneously entered, the
proper motion is to vacate it.-Fourteenth
Street Bank in City of New York v. Strauss
(Sup.) 956.
§ 2. On trial of issues.
*In an action for an interpleader, where the
only issue is as to the validity of an assign-
ment, and there is no finding on that issue, a
conclusion of law and judgment adverse to the
assignee cannot be sustained.-Jacquelin
Jacquelin (Sup.) 701.
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*A judgment for defendants in an action by
a foreign corporation on plaintiff's failure to
file a certificate with the Secretary of State
held not to preclude another action on the same
subject-matter.-United States Fidelity & Guar
anty Co. v. Schiff (Sup.) 396.
§ 6. Conclusiveness of adjudication.
In an action against highway commissioners
as individuals for services as counsel, notice
served held not sufficient notice to the town to
come in and defend.-McCoy v. McClarty (Sup)
80.
*A judgment of dissolution of a company be
not res judicata of a cause of action for fraud
in procuring a stockholder to unite in a peti-
tion for the dissolution of the company.-Vest
V. Vogt (Sup.) 164.
A judgment held not conclusive as to the ex-
istence of an easement in a street.-Lewischn
v. Lansing Co. (Sup.) 543.
it was conclusive as between the parties and
*Where a judgment was affirmed on appeal,
not subject to correction at special term for
the purpose of allowing a credit for certain
alleged payments.-Ferguson v. Bien (City Ct)
715.
*A deed given as "collateral security" did
not divest the grantor of interest in the land,
and a subsequent judgment against him te
came a lien against the land.-Graves Elevator
Co. v. Seitz (Sup.) 852.
Under Code. § 1268, a judgment lien attach-
ing to land before the owner's adjudication as
a bankrupt held not removed by his discharge
in bankruptcy.-Graves Elevator Co. v. Seits
(Sup.) 852.
JUDICIAL SALES.
*Facts held insufficient to justify a court's re-
fusal to confirm a receiver's report of sale.-
Wilber v. Wilber (Sup.) 179.
Resale of land held improperly ordered on the
ground of mistake of a proposed purchaser.—
Wilber v. Wilber (Sup.) 179.
Effect of appearance, see "Appearance."
Jurisdiction of particular actions or pro-
ceedings.
See "Contempt," § 1; "Divorce," § 2; “Quo
Warranto," § 1.
Accounting by executor or administrator, see
"Executors and Administrators," § 7.
Against state, see "States," § 1.
Criminal prosecutions, see "Criminal Law,” § ↳
Jurisdiction of particular classes of persons.
See "Corporations," § 6.
See syllabus.
Custody and conduct, see "Trial," § 6.
Grounds for reference instead of trial by jury,
see "Reference," § 1.
Instructions in civil actions, see "Trial," § 5.
Instructions in criminal prosecutions, see "Crim-
inal Law," § 5.
Questions for jury in civil actions, see "Trial,"
§ 4.
Questions for jury in criminal prosecutions, see
"Criminal Law," § 5.
Taking case or question from jury at trial, see
"Trial," § 4.
Verdict in civil actions, see "Trial," § 7.
1. Right to trial by jury.
*Greater New York Charter, § 1410, Laws
1901, p. 604, c. 466, providing that trials for
misdemeanors shall be without a jury, is not un-
constitutional.-People v. Flaherty (Sup.) 173.
*Under Municipal Court Act. Laws 1902, p.
1557, c. 580, § 231, the failure of one suing
three persons to demand a jury trial at the
time two of them appeared and answered held
not a waiver of a jury, though he demanded
one after the third defendant appeared and
answered.-Spencer v. Adams Dry Goods Co.
(Sup.) 867.
JUSTICES OF THE PEACE.
Civil jurisdiction and authority.
*Under Lockport City Charter, and Code Civ.
Proc. 2869, held, that a nonresident may not
maintain an action in a city justice court
against a resident of a town adjoining the town
of Lockport but not the city.-Sutphen v. Clark
(Sup.) 129.
2. Procedure in civil cases.
The adjournment of a trial by a justice of
the peace upon his own motion under circum-
stances not provided for by Code Civ. Proc. &
2959, held to deprive him of jurisdiction.-
Sherer v. Cannon (Co. Ct.) 709.
Affecting particular rights, remedies, or pro-
ceedings.
See "Discovery," § 1.
Application for security for costs, see "Costs,"
§ 2.
Filing supplemental pleading, see "Pleading,"
$4.
LANDLORD AND TENANT.
Authority of agent for landlord, see "Principal
and Agent," § 3.
Damages for breach of contract for lease, see
"Damages," § 1.
Guaranty of rent, see "Guaranty," § 1.
Injunction to restrain subletting of demised
premises, see "Injunction," § 1.
Injunction to restrain tenant from using pass-
way on demised premises, see "Injunction,"
§ 1.
Parol or extrinsic evidence of lease, see "Evi-
dence," § 5.
Recovery of rent in action for money received,
see "Money Received."
Taxation of leases, see "Taxation," § 1.
81. Terms for years.
In a suit for rent held, that defendant made
out a good defense of constructive eviction.-
Myers v. Bernstein (Sup.) 348.
execute a lease to plaintiff lessee of additional
In an action to compel defendant lessors to
premises, the complaint held insufficient.-Bedell
v. Edgett (Sup.) 1013.
§ 2. Premises, and enjoyment and use
thereof.
A lessee is not entitled to recover for a breach
of an agreement made by the original lessor,
collateral to the lease and resting in parol,
against the assignee of one to whom the prem-
ises were conveyed subject to the lease.-Tobey
v. Mattimore (Sup.) 393.
*In a suit by a landlord to collect rent of
his tenant, held, that the tenant failed to prove
by way of defense acts that constituted an evic-
tion.-Kinney v. Libbey (Sup.) 863.
*Where premises were in the possession of a
tenant under a lease which did not provide that
the owner make repairs, he was not obliged to
do so, and hence was not liable for injuries to
a person caused by the premises being in dis-
repair.-Jones v. Brumme (Sup.) 1038.
*In the absence of a statutory requirement, no
duty devolves upon a landlord to light the hall-
ways of a tenement, even though he retains con-
trol over them.-Robinson v. Crimmins (Sup.)
1076.
*Landlord held not liable for injuries to one
Plea of, in action for libel, see "Libel and Slan- inspecting an apartment who opens a door and
der," § 2.
steps into a dark passageway.-Robinson v.
Crimmins (Sup.) 1076.
§ 3. Rent and advances.
In an action for rent, the omission to prove
that the lease offered in evidence was signed by
the lessor was immaterial where the answer
*Point annotated. See syllabus.
and 138 New York State Reporter
admitted that the premises were leased for the | in evidence of the corporate books containing a
term specified in the complaint.-Tobey v. Mat- entry with respect to the use of the funds hold
timore (Sup.) 393.
improper.-People v. Burnham (Sup.) 725.
*In an action by a landlord for the recovery
of rent due, damages accruing from the breach
of the landlord's covenant to repair may be set
up as a counterclaim, though the tenant oc-
cupied the premises.-Uhlfelder V. Loughran
(Sup.) 891.
*The fact that a lease is oral does not affect
the rule that damages for the breach of the
landlord's covenant to repair may be allowed
as counterclaim in a suit for the rent, if a
valid consideration be shown for the covenant
to repair. Uhlfelder v. Loughran (Sup.) 891.
A provision in a lease that the tenant shall
pay damages in case of a breach of covenant
to pay rent, notwithstanding ejection by sum-
mary proceedings, held valid, and not contrary
to public policy.-Slater v. Von Chorus (Sup.)
Under the express provisions of Code Civ.
Proc. 2253, the eviction of a tenant by
summary proceedings terminates his liability
for future rent as such.-Slater v. Von Chorus
(Sup.) 996.
A complaint in an action by a landlord
against a tenant after eviction held to state a
sufficient cause of action to recover damages
for breach of the tenant's covenant to pay rent.
-Slater v. Von Chorus (Sup.) 996.
§ 4. Re-entry and recovery of posses-
sion by landlord.
In summary proceedings, the exclusion of cer-
tain evidence held error.-Realty Mortgage Co.
v. Byrnes (Sup.) 370.
In a proceeding to remove a tenant, under
Code Civ. Proc. § 2231, subd. 3, held, that the
statutory requirements had not been suffi-
ciently observed.-Iroquois Realty Co. v. Iro-
quois Hotel & Apartment Co. (Sup.) 748.
Of devise or legacy, see "Wills," § 3.
See "False Pretenses."
Former jeopardy, see "Criminal Law," § 2.
On a trial of an officer of an insurance com
pany for the larceny of its funds, a recei
given by accused to another for the deposit
canceled checks and the checks, which indicated
that they had passed to the credit of the supe
intendent of insurance, held inadmissible-
People v. Burnham (Sup.) 725.
On a trial of an officer of an insurance con
pany for the larceny of its funds, the record
of the meetings of the board of directors
the company held admissible as bearing on the
good faith of the officer.-People v. Burnha
(Sup.) 725.
pany for the larceny of its funds, the admission
On trial of an officer of an insurance com
pany was with intent to defraud the company
the use by the officer of the funds of the com-
held not authorized.-People v. Burnham (Sup)
On a trial of an officer of an insurance com
pany for the larceny of its funds, the evidence
ed the funds, essential to support a conviction
held insufficient to show that he misappropriat
-People v. Burnham (Sup.) 725.
On a trial of an officer of an insurance com
pany for the larceny of its funds, based on his
person against another officer individually.
act in using the same to pay a claim of a thir
the prosecution held required to prove certai
facts.-People v. Burnham (Sup.) 725.
On the trial of an officer of an insurance
company for the larceny of its funds, an in-
struction held erroneous for calling the atter
tion of the jury to a particular fact.-People
v. Burnham (Sup.) 725.
Decision on appeal, see "Appeal," § 8.
Jurisdiction of prosecution for, see "Criminal To witnesses, see "Witnesses," § 2.
Law," § 1.
§ 1. Offenses and responsibility there-
*Under Pen. Code, § 528, subd. 2, defining See "Landlord and Tenant."
larceny by a bailee or officer, the people, to
support a conviction of an officer of an insur-
ance company of larceny of its funds, held
required to prove that the officer having in his See "Wills."
possession funds appropriated the same to his
own use with intent to defraud the company
thereof.-People v. Burnham (Sup.) 725.
§ 2. Prosecution and punishment.
On a trial of an officer of an insurance com-
pany for the larceny of its funds, the admission
*Point annotated.
LIBEL AND SLANDER.
Construction of instructions in action for, see
"Trial," § 5.
Striking out pleading, see "Pleading," § 7.
See syllabus.
1. Words and acts actionable, and unnecessary.-Rivers v. New York Evening Jour-
liability therefor.
nal Pub. Co. (Sup.) 1081.
*An article containing statements in respect
an officer of a corporation held libelous per
as to the corporation, whether the statements
ferred to a former officer of the corporation or
present one.-New York Bureau of Informa-
on v. Ridgway-Thayer Co. (Sup.) 202.
*The publication of a statement that a wo-
an was a defendant in an action for divorce,
hich could only be brought upon the grounds
f adultery, was libelous per se.-Rivers v. New
ork Evening Journal Pub. Co. (Sup.) 1081.
In an action for libel, an averment that the
efendant, maliciously intending to injure plain-
iff in her good name, fame, and reputation, pub-
shed a libel concerning her, does not amount to
n averment tendering an issue as to her chaste
haracter and good reputation.-Oakes v. Star
Co. (Sup.) 244.
*In an action for libel on the question whether
unitive damages should be awarded, any evi-
lence was admissible which tended to prove o
lisprove actual malice on the part of the de-
endant.-Butler v. Gazette Co. (Sup.) 637.
*In an action for libel certain evidence held
ompetent on question whether libelous article
vas carelessly published.-Butler v. Gazette
Co. (Sup.) 637.
*There can be no award of punitive damages
for the publication of a libel except upon proof
either of actual malice, or that the libel was
recklessly or carelessly published by the de-
endant.-Butler v. Gazette Co. (Sup.) 637.
In an action for libel, an instruction that the
defendant was not bound to personally investi-
zate the item if any investigation would have
been of no avail held not error.-Butler v.
Gazette Co. (Sup.) 637.
Matter relevant as a partial defense in an
action for libel, but not so pleaded, must be
treated as intended as a complete defense, ren-
dering the paragraphs demurrable for insuffi-
ciency.-W. T. Hanson Co. v. Collier (Sup.)
787.
In a suit for libel concerning a certain patent
medicine, allegations of the answer concerning
the same held to state a partial defense in
mitigation of damages.-W. T. Hanson Co. v.
Collier (Sup.) 787.
Where matter pleaded in justification in an ac-
tion for libel was demurred to, and was insuffi-
cient, defendant might be allowed to amend so
as to plead the matter as a partial defense, or
amplify it in justification.-W. T. Hanson Co.
v. Collier (Sup.) 787.
*In slander, the alleged defamatory words
must be set forth in full, and it is not suffi-
cient to state the substance and effect thereof.
-De Wolf v. Ford (Sup.) 876.
For practice of medicine, see "Physicians and
Surgeons."
For sale of intoxicating liquors, see "Intoxi-
cating Liquors," § 1.
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LIFE ESTATES.
See "Dower"; "Remainders."
Computation of limitations in action against
life tenant, see "Limitation of Actions," § 2.
Estate of life beneficiary held liable on note
given by her to the trustee.-Putnam v. Lincola
Deposit Co. (Sup.) 4.
Proceeds of sale of stock belonging to trust
estate reinvested in other stock held not to be
considered as part of the trust estate in favor
of remaindermen.-Putnam v. Lincoln Deposit
Co. (Sup.) 4.
*Under Code Civ. Proc. § 1655, relating to
actions for waste against the tenant of a par-
ticular estate, where it was shown that the
damages exceeded the value of the life estate,
the court correctly declared the interest of the
life tenant terminated.-McCartney v. Titsworth
(Sup.) 45.
*The removal of timber from land held waste,
under Code Civ. Proc. § 1655.-McCartney v.
Titsworth (Sup.) 45.
*The life tenant of premises may sue to re-
cover rental damages from an elevated railroad
operating in front of the premises.-Goggin v.
Manhattan Ry. Co. (Sup.) 548.
Interest on a seat in a stock exchange owned
by a decedent held income and not principal,
and to pass to his widow as a life beneficiary
of his residuary estate. In re Weaver's Estate
(Sur.) 475.
A complaint in a libel suit held to sufficiently
show application of libelous article to plaintiff,
and that the statement of that fact in the ex-
press language of Code Civ. Proc. § 535, was See "Insurance," §§ 7, 8.
*Point annotated. See syllabus.
and 138 New York State Reporter
LIMITATION OF ACTIONS.
Particular actions or proceedings.
See "Mandamus," § 2.
Accounting by executor or administrator, see
"Executors and Administrators," § 7.
On claims against decedent's estate, see "Ex-
ecutors and Administrators," § 4.
On insurance policy, see "Insurance," § 8.
1. Statutes of limitation.
out service of the summons.-Lipschutz v. 3
ton (Sup.) 850.
*Where plaintiff fails to serve the sum
in an action within 60 days after filing a
pendens as provided by Code Civ. Proc.
defendant may, under the express provisions f
section 1674, apply to the court for the
cellation of the notice, on the ground that ph
tiff has unreasonably neglected to proceed a
the action.-Lipschutz v. Horton (Sup.) 850
An action in respect to a conveyance of trust
property which was a constructive fraud must
be brought within 10 years, under Code Civ.
Proc. § 388, providing for the limitation of cer- Carriage of, see "Carriers," § 3.
tain actions.-Chorrmann v. Bachmann (Sup.)
151.
§ 2. Computation of period of limita-
*Limitations do not begin to run against an
action by remaindermen against life beneficiary
and trustee to determine rights of parties in
trust property till the death of the life tenant.
-Putnam v. Lincoln Deposit Co. (Sup.) 4.
Under Niagara City Charter, Laws 1892, p.
241, c. 143. § 53, as amended by Laws 1897, p.
1004, c. 739, where an infant was injured by the
alleged negligence of a city, his service of notice
within 30 days did not necessarily require the
commencement of his action for injuries within
a year thereafter.-Winter v. City of Niagara
Falls (Sup.) 39.
*For the purpose of computing the running
of limitations on an action to restrain the main-
tenance and operation of an elevated railroad
in front of premises, the cause of action ac-
crued when the road was completed and opera-
tions begun.-Goggin v. Manhattan Ry. Co.
(Sup.) 548.
3. Acknowledgment,
new promise,
and part payment.
*Payment of interest by one of the makers
of a joint note from their joint funds held to
toll the six years' statute of limitations.—In
re Hallenbeck (Sup.) 568.
LIQUIDATED DAMAGES.
See "Damages," § 1.
LIQUOR SELLING.
See "Intoxicating Liquors."
Order canceling as law of the case, see "Courts,"
§ 2.
*The filing of lis pendens under Code Civ.
Proc. § 1670, held not permitted under the facts.
-Krainin v. Coffey (Sup.) 174.
LOAN ASSOCIATIONS.
See "Building and Loan Associations."
To association, see "Associations."
To compel filing of certificate of incorpora
tion, see "Corporations," § 4.
To review tax assessment, see "Taxation," § 2
§ 1. Nature and grounds in general.
*On improper transfer of action by justice of
a Municipal Court to another district, manda-
mus will not be granted to compel him to re
tain jurisdiction, as his action may be reviewed
by appeal.-People v. Murray (Sup.) 740.
§ 2. Jurisdiction, proceedings, and re-
*A separate statement of defense to an alter-
native writ of mandamus not being as broad as
the writ held bad.-People v. New Rochelle Wa-
ter Co. (Sup.) 92.
Code Civ. Proc. § 1670, held not to permit the A separate statement of defense to an alterna-
filing of successive notices of pendency of ac- tive writ of mandamus held not sufficiently
tion so as to enable plaintiff to obtain the broad.-People v. New Rochelle Water Co. (Sup.)
benefit of a notice of pendency indefinitely with-92.
*Point annotated. See syllabus.
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