and 121 New York State Reporter
INTERLOCUTORY INJUNCTION.
See "Injunction," § 1.
INTERLOCUTORY JUDGMENT.
See "Judgment," § 2.
Appealability, see "Appeal," § 1.
Review on appeal, see "Appeal," § 5.
INTERNATIONAL LAW.
§ 1. Right to interpleader.
Applicant for order of interpleader, having
Bar partitioned off from pavilion on Sundays
held not to render keeping pavilion open on
Sunday a violation of Laws 1897. p. 233, e
312, § 31, cl. "g."-In re Cullinan (Sup.) 660.
Sandwiches served with whisky on Sunday
held not to constitute a meal in good faith,
within Laws 1897, p. 234. c. 312, § 31, cl. “k”
allowing hotel keepers holding liquor tax cer-
tificates to sell liquor to guests on Sunday.—
In re Cullinan (Sup.) 660.
had two claims for same debt made upon it, In civil actions, see "Pleading," § 7.
held entitled to order, under Code Civ. Proc.
§ 820, providing that the court may grant_such
order in certain cases.-Wells v. Corn Exch.
Bank (Sup.) 480.
§ 2. Proceedings and relief.
Applicant for order of interpleader to court
having no equity jurisdiction, when same appli-
cation could have been made to court having
such jurisdiction, held entitled to order only in
the court having equity jurisdiction.-Wells v.
Corn Exch. Bank (Sup.) 480.
INTERROGATORIES.
To witnesses, see "Depositions."
See "Descent and Distribution."
INTOXICATING LIQUORS.
§ 1. Local option.
Inadvertent errors of town clerk held insuf-
ficient to justify resubmission of local option
questions, under Liquor Tax Law, Laws 1896,
p. 57, c. 112, § 16.-People v. Edwards (Sup.
618.
§ 2. Licenses and taxes.
In an action on a liquor dealer's bond, the
breach alleged being Sunday sales in prohibited
quantities, evidence held insufficient to establish
the defense that the liquor was served to guests
with meals.-Cullinan v. Rorphuro (Sup.) 570.
Under Code Civ. Proc. § 1015, and Liquor
Tax Law, Laws 1896, p. 69. c. 112, § 28.
subd. 2, as amended by Laws 1903, p. 1125,
c. 486, held, that the court, on the return day
of an order to show cause why a liquor tax
certificate should not be revoked. has authority
to order a reference, although the respondent
does not appear.-In re Cullinan (Sup.) 817.
§ 3. Regulations.
House kept for accommodation of guests held
a hotel, within Laws 1897, p. 234, c. 312, § 31,
cl. "k." permitting hotel keepers holding a
liquor tax certificate to sell liquor on Sunday.
In re Cullinan (Sup.) 660.
Former jeopardy bar to prosecution, see "Crim-
inal Law," § 2.
JOINT TENANCY.
See "Tenancy in Common."
In bank deposit, see "Banks and Banking,"
§ 3.
Where two persons own jointly a deposit in a
savings bank, the survivor becomes vested with
the entire fund.-Farrelly v. Emigrant Indus-
trial Sav. Bank (Sup.) 54.
Facts held to show that owner of a deposit in
a savings bank intended to make another joint
owner of the account.-Farrelly v. Emigrant In-
dustrial Sav. Bank (Sup.) 54.
Deed of tenants in common to one of the ten-
ants and a third person as joint tenants held to
create a joint tenancy.-Colson v. Baker (Co.
Ct.) 238.
Remarks and conduct at trial, see "Criminal
Law," § 4.
1. Appointment,
and
tenure.
Under Const. art. 6, § 4, a vacancy occurring
in office of Justice of the Supreme Court on Au-
gust 2d held properly filled at general election
on November 3d following, especially in view
of Laws 1892, p. 1490, c. 677, § 26.-People v.
Goodrich (Sup.) 114.
Facts showing a mere error in the applica-
tion of the law to a case before a city mag-
istrate held insufficient to justify his removal
on the ground that he was corrupt or incom-
petent. In re Baker (Sup.) 1022.
A petition for the removal of a police mag-
istrate for the alleged wrongful discharge of
certain persons charged with having policy
numbers in their possession held insufficient.
In re Baker (Sup.) 1022.
Compromise and settlement of judgment, see
"Accord and Satisfaction."
Decisions of courts in general, see "Courts,"
§ 2.
Effect of discharge of judgment creditor in
bankruptcy, see "Bankruptcy," § 3.
Review, see "Appeal."
In actions by or against particular classes of
parties.
Dissolved corporation, see "Corporations," § 6.
Indorser of note, see "Bills and Notes," § 3.
In particular civil actions or proceedings.
Dispossession proceedings, see "Landlord and
Tenant," § 6.
On appeal, see "Appeal," § 6.
1. By default.
An application to open a default judgment
held improperly granted.--O'Meara v. Inter-
urban St. Ry. Co. (Sup.) 405.
Action of court in refusing to open default
held proper.-Audit Co. of New York v. Mc-
Naught (Sup.) 542.
Judgment held to be interlocutory, under Code
Civ. Proc. § 1200, defining judgment.-Maeder
v. Wexler (Sup.) 402.
The taxing of costs and including them in an
interlocutory judgment is proper, under the ex-
press provisions of Code Civ. Proc. § 3232.-
Maeder v. Wexler (Sup.) 402.
An interlocutory judgment properly provides
for execution for the collection of costs under
the express provisions of Code Civ. Proc. §§
779, 3233.-Maeder v. Wexler (Sup.) 402.
A memorandum, filed by a trial judge, stating
the grounds of his decision, is no part of the
judgment.-Forgotson Raubitschek (Sup.)
Where the record of a judgment does not
show against whom it was rendered, there is
no presumption that it was against the de-
fendant.-Goldberg v. Markowitz (Sup.) 1045.
A judgment held not to raise a presumption
A judgment that does not show against which
party it was rendered is void.-Goldberg v.
Markowitz (Sup.) 1045.
3. Opening or vacating.
An order granting a motion to set aside a
judgment after a trial on the merits, on the
ground that defendant's counsel had been guilty
of negligence, held error.-Early v. Bard (Sup.)
650.
§ 4. Merger and bar of causes of action
and defenses.
Where plaintiff sued on a building contract,
but recovered only for extras, a subsequent suit
for the reasonable value of work and material
held not a splitting of the cause of action, bar-
Maeder v. Wexler
ring the second action.-
(Sup.) 400.
Judgment for defendant on a building con-
tract, because there was not complete perform-
ance, held not a bar to an action for the rea-
sonable value of the work and materials.-
Maeder v. Wexler (Sup.) 400.
A judgment between the same parties, in
which the same question urged in a subsequent
suit was litigated, held res adjudicata, though
the first judgment was entered on a dismissal
of the complaint for failure of proof, and not
on the merits.-Engel v. Union Square Bank
(Sup.) 1070.
A judgment in an action by a trustee in
bankruptcy against defendant to determine the
ownership of certain policies assigned to the
latter held conclusive of a subsequent action
to recover any part of the fund arising from
such policies.-Engel v. Union Square Bank
(Sup.) 1070.
5. Conclusiveness of adjudication.
Adjudication that part of issue of bonds was
invalid held not to annul bouds sold to other par-
ties.-City of Ironwood v. Wickes (Sup.) 554.
Judgment in former action that a deed had
not been delivered held not binding on plaintiffs
in a subsequent partition suit.-Russ v. Max-
well (Sup.) 1077.
§ 6. Suspension, enforcement, and re-
Supreme Court has power temporarily to sus-
pend operation of its judgments.-Sponenburgh
v. City of Gloversville (Sup.) 602.
Pleading and evidence of judg-
ment as estoppel or defense.
A reply held not to deny that labor and mate-
rial, the reasonable value of which is sued for,
was not embraced in a former action on a con-
tract.-Maeder v. Wexler (Sup.) 400.
In an action on a judgment of a court of an-
other state, held, that plaintiff could prove facts
outside the record to show it had jurisdiction.-
Johnston v. Mutual Reserve Fund Life Ins.
Co. (City Ct. N. Y.) 438.
that a certain defendant appeared.-Goldberg Of property of decedent, see "Executors and
v. Markowitz (Sup.) 1045.
and 121 New York State Reporter
A purchaser of real estate "subject to exist-
ing tenancies," who found tenants in actual
ascertained the nature, extent, and terms of the
existing tenancies.-Anderson v. Connor (Sup.
449.
Want of, ground for dismissal of action, see possession, held conclusively presumed to have
"Dismissal and Nonsuit," § 2.
Grounds for reference instead of trial by jury,
see "Reference," § 1.
Instructions in civil actions, see "Trial," § 6.
Instructions in criminal prosecutions, see "Crim-
inal Law." § 4.
Questions for jury in civil actions, see "Trial,
$ 5.
Taking case or question from jury at trial, see
"Trial," § 5.
1. Right to trial by jury.
Defendant having applied for a jury trial in
the Municipal Court, on the setting aside of a
default for failure to appear and again on the
filing of his answer on the date specified there-
for, such application was in time, under Mu-
nicipal Court Act, Laws 1902, p. 1557, c. 580,
§ 231.-Levy v. Roossin (Sup.) 707.
Of defects, see "Master and Servant," § 4.
LANDLORD AND TENANT.
See "Use and Occupation."
Authority of agent as to leases, see "Principal
and Agent," § 2.
Leases by corporate officers, see "Corporations,"
§ 3.
Mortgage of leasehold, see "Mortgages," § 2.
Right of lessee to recover for maintenance of
nuisance, see "Nuisance," § 1.
§ 1 Leases and agreements in general.
There is no implied warranty that premises
are fit for the purpose for which they are leas-
ed.-Ducker v. Del Genovese (Sup.) 889.
§ 2. Landlord's title and reversion.
A purchaser of real estate "subject to exist-
ing" tenaucies, who recognizes a tenant found
in possession at the time of the purchase by
collecting rent from him, validates thereby the
voidable lease held by the tenant.-Anderson v.
Connor (Sup.) 449.
Code Civ. Proc. § 369, relative to adverse
possession under written instrument, has no
application to a holding under assessment lease
for a term of years, or a holding over after the
expiration of such lease.-Miller v. Warren
(Sup.) 1011.
Possession under a tax or assessment lease
being established, it will be presumed that a
holding over at the expiration of such lease
is still in subordination to paper title, unless
a disclaimer or surrender and retaking be
shown. Miller v. Warren (Sup.) 1011.
3. Terms for years.
Giving by landlord to a city of a license sim-
ilar to one given by tenant to landlord held
not an acceptance of premises then abandoned
by tenant.-Pierson v. Hughes (Sup.) 223.
Landlord held entitled to regard holding-over
tenants as tenants for another year.-Pierson
v. Hughes (Sup.) 223.
Evidence held to authorize a finding that there
was an actual surrender of a lease, and a ter-
mination thereof, in consideration of payment
of a month's rent in advance.-Goldsmith v.
Schroeder (Sup.) 558.
Damage to a leased apartment from water.
used in extinguishing fire in another part of
the building, held within the provision of the
lease as to rights of the parties in case of
damage from fire.-Roman v. Taylor (Sup.)
653.
The right of a lessee under Real Property
Law, Laws 1896, p. 589, c. 547. § 197, to sur-
render when the building becomes untenantable.
held taken away in case of damage from fire by
a provision of the lease.-Roman v. Taylor
(Sup.) 653.
4. Premises, and enjoyment and use
thereof.
Assault by hall boy on tenant held not to con-
stitute an eviction.-Haas v. Ketcham (Sup.)
411.
Landlord of a building held to have owel
occupant of building duty of keeping a certain
balcony in the rear of the building in a safe
condition. Clarke v. Welsh (Sup.) 697.
of plaintiff's intestate, owing to the railing of
In an action against a landlord for the death
a balcony in the rear of the building having
given way with her as she leaned over the rail-
ing, held, that the question of her contributory
negligence was one for the jury.-Clarke v.
Welsh (Sup.) 697.
Breach of a landlord's agreement to rect a
new stoop to a building rented entire to plain-
tiff's husband held not to create a liability in
tort for injuries to plaintiff from defects in the
old stoop.-Stelz v. Van Dusen (Sup.) 716.
The lessee of real property must run the risk
of its condition, unless he has an express agree-
ment by the lessor covering that subject.—
Prahar v. Tousey (Sup.) 845.
A lease held not to obligate the lessee to re-
build the leased buildings after their collapse.
-Ducker v. Del Genovese (Sup.) 889.
See "Receiving Stolen Goods."
A landlord is not liable for failing to give
a tenant notice of a latent structural defect, See "Appeal," § 6.
of which the landlord had no actual knowledge.
-Smith v. Donnelly (Sup.) 893.
5. Rent and advances.
Eviction, to constitute a defense to a claim for
rent, must take place before the rent falls due.
-Klinker v. Guggenheimer (Sup.) 474.
Reut held not payable in advance, under a
lease providing for payment of rent in equal
monthly installments on the 1st day of each
month during the term.-Goldsmith v. Schroeder
(Sup.) 558.
A tenant's occupation of a part of the prem-
ises, under a lease covering the whole thereof,
not delivered, under protest, held not a waiver
of his claim of possession to the part not de- See "Taxation," § 4.
livered.-Sullivan v. Schmitt (Sup.) 714.
Where the entire premises leased had not
been delivered to a tenant, his offer to pay the
balance due on the first month's rent if the
entire building leased was delivered held not an
admission that the landlord was entitled to re-
cover rent under the lease.-Sullivan v. Schmitt
(Sup.) 714.
A landlord's inability to deliver possession of For inventions, see "Patents.”
a part of the premises by reason of an unex-
pired lease to another held to constitute a failure
of consideration for the lease to defendant.-
Sullivan v. Schmitt (Sup.) 714.
In an action on a lease, evidence held not to
justify submission to the jury of an issue as to
fraud in procuring the execution of the lease.-
Prahar v. Tousey (Sup.) 845.
Laws 1860, c. 345, held not to exonerate ten-
ant from payment of rent, where a defect in the
premises existed when the lease was made.-
Prahar v. Tousey (Sup.) 845.
Under provisions of lease, landlord held enti-
tled to recover rent from defaulting tenant be
fore expiration of term.-Harding v. Austin
(Sup.) 887.
$ 6. Re-entry and recovery of posses-
sion by landlord.
An order in favor of the landlord in summary
dispossession proceedings held not to have been
entered on the fenant's default, so as to au-
thorize the court to vacate it on motion, under
Municipal Court Act, Laws 1902, p. 1562, c.
580, $253.-Maneely v. Mayers (Sup.) 471.
Code Civ. Proc. § 2254, held not to authorize
the stay of a dispossession warrant after its is-
suance.-Maneely v. Mayers (Sup.) 471.
Orders of a municipal court, setting aside an
order for possession on a tenant's alleged de-
fault in dispossession proceedings, recalling a
dispossession warrant, and refusing to vacate
the landlord's subsequent default, held not ap-
pealable, under Municipal Court Act, Laws
1902, pp. 1562, 1563, c. 580, §§ 253-257.-
Maneely v. Mayers (Sup.) 471.
LIBEL AND SLANDER.
Words and acts actionable, and
liability therefor.
In slander, it is unnecessary for plaintiff to
prove the words alleged to have been spoken to
be false.-Hume v. Kusche (Sup.) 109.
Alleged slanderous publications of plaintiff
that he was accustomed to live with an adopted
daughter held not actionable per se.-Cassa voy
v. Pattison (Sup.) 658.
Publication, concerning one of extraordinary
education, that he is poverty stricken on ac-
count thereof, held libelous per se.-Martin v.
Press Pub. Co. (Sup.) 859.
A libel held to refer, not to plaintiff, but to a
hotel kept by him.-Maglio v. New York Herald
Co. (Sup.) 927.
Under Pen. Code, §§ 468a, 468b, one charging
another with being an anarchist held guilty of
slander. Von Gerichten v. Seitz (Sup.) 968.
§ 2. Actions.
In an action for slander, evidence that the
words spoken were false is unnecessary to the
recovery of smart money.-Hume v. Kusche
(Sup.) 109.
In an action for slander in one's business,
prospective profits are speculative and cannot
be considered.-Hume v. Kusche (Sup.) 109.
Where the words alleged to be slanderous are
privileged, the burden is on plaintiff to prove
them false, and that defendant knew they were
false.-Hume v. Kusche (Sup.) 109.
and 121 New York State Reporter
Where the truth of words alleged to be slan-1
derous is pleaded as a defense, the burden is on
defendant to prove them true.-Hume v. Kusche
(Sup.) 109.
Words, slanderous because spoken of one in
his business, must be alleged to have been so
spoken.-Hume v. Kusche (Sup.) 109.
Alleged slanderous publication of plaintiff that
he was dishonest held not actionable per se.-
Cassavoy v. Pattison (Sup.) 658.
Under Code Civ. Proc. §§ 365, 375, action by
infant beneficiaries of trust created in execu-
tors held barred 20 years after void deed by
executors and 10 years after infants reach ma-
jority.-Brown v. Doherty (Sup.) 563.
Under Code Civ. Proc. § 382, subd. 5, right of
action for fraudulently obtaining possession of
shares of stock held not barred until six years
after discovery of the fraud.-Slayback v. Ray-
mond (Sup.) 931.
Where Sunday is the last day of a limitation
Where language of publication is libelous per
se, the court may disregard innuendoes improp period provided by Code, §§ 380, 383, it must be
included in reckoning the period, notwithstand-
erly drawn, and submit the case to the jury.-ing Laws 1894, p. 910, c. 447, § 27.-Benoit v.
Martin v. Press Pub. Co. (Sup.) 859.
New York Cent. & H. R. R. Co. (Sup.) 951.
A complaint in an action for libel held in-
sufficient for a failure to allege special damages,
when the matter refers to plaintiff's property.
-Maglio v. New York Herald Co. (Sup.) 927.
Effect of receivership, see "Receivers," § 2.
For making, use, or sale of patented articles,
see "Patents," § 1.
For sale of intoxicating liquors, see "Intoxi-
cating Liquors," § 2.
Injuries to licensees, see "Railroads." § 2.
Street railroad licenses, see "Street Railroads,"
§ 1.
Effect of proceedings in bankruptcy, see "Bank-
ruptcy," § 2.
Particular classes of liens.
See "Mechanics' Liens."
Pledge, see "Pledges."
See "Insurance."
LIMITATION OF ACTIONS.
See "Adverse Possession."
Particular actions or proceedings.
Against personal representatives, see "Execu-
tors and Administrators," § 8.
For possession of pledge, see "Pledges."
Proceedings to modify or vacate order assess-
ing transfer tax, see "Taxation," § 4.
§ 1. Statutes of limitation.
A contract under seal is not governed by the
six-year statute of limitations.-City of New
York v. Third Ave. R. Co. (Sup.) 584.
2. Computation of period of limita-
Period in which limitations run against ex-
ecutors as trustees should be counted in deter-
mining whether action of ejectment by infant
beneficiaries is barred.-Brown v. Doherty
(Sup.) 563.
Under Code Civ. Proc. § 415, limitations held
to run immediately against executors, after
deed by only one of them, under which grantee
went into possession.-Brown v. Doherty (Sup.)
563.
Day on which cause of action accrued must be
included in reckoning period of limitation, un-
der Code, §§ 380, 383. notwithstanding Laws
1894, p. 910, c. 447, § 27.-Benoit v. New York
Cent. & H. R. R. Co. (Sup.) 951.
Under the express provisions of Code Cir.
Proc. 401, the running of limitations is
suspended during the time of continuous ab-
sence of over a year's duration from the state.
-Miller v. Warren (Sup.) 1011.
3. Pleading, evidence, trial, and re-
view.
The issue of residence, on which depended
the defense of limitations, held required to be
submitted to the jury on conflicting evidence.-
Eldredge v. Mathews (Sup.) 652.
LIMITATION OF LIABILITY.
Of carrier, see "Carriers," § 2.
LIQUIDATED DAMAGES.
See "Damages," § 2.
LIQUOR SELLING.
See "Intoxicating Liquors."
LIS PENDENS.
Judgment dismissing complaint on the merits
in an action of ejectment held a final judgment,
under Code Civ. Proc. § 1674, relating to
cancellation of notice of lis pendens, notwith-
standing Code Civ. Proc. § 1525, permitting a
new trial in actions of ejectment.-Jarvis v.
American Forcite Powder Mfg. Co. (Sup.) 742.
Under Code Civ. Proc. § 1674, court held
to have no discretion to refuse the cancella-
tion of a notice of lis pendens after final
judgment in the action.-Jarvis v. American
Forcite Powder Mfg. Co. (Sup.) 742.
By pawnbroker, see "Pawnbrokers."
LOCAL OPTION.
Traffic in intoxicating liquors, see "Intoxicat-
ing Liquors," § 1.
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