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IMPRISONMENT.

See False Imprisonment.

IMPROVEMENTS.

See Eminent Domain, § 62; Estoppel, § 93;
Judgment, § 747.

INCOME.

See Trusts, §§ 274, 331; Wills, §§ 524, 529, 564, 687.

INCOMPETENT PERSONS.

See Insane Persons.

INCORPORATION.

See Corporations, § 14.

INDEMNITY.

See Guaranty; Insurance, § 388; Principal and Surety.

INDEPENDENT CONTRACTORS. See Master and Servant, § 316.

INDIANS.

See Mandamus, § 81.

INDICTMENT AND INFORMATION.
See Criminal Law, §§ 42, 1024; False Pretens-
es, §§ 4, 26, 29, 31; Gaming; Perjury, § 25;
Theaters and Shows; Witnesses, § 366.

V. REQUISITES AND SUFFICIENCY
OF ACCUSATION.

863 (N.Y.Sup.) An indictment for violation of the local option law, alleging that the four questions provided by Liquor Tax Law, § 13, were "duly submitted," was sufficient without expressly alleging the various preliminary steps; the term "duly submitted" implying the existence of every fact essential to the proceedings.-People v. Yarter, 137 N. Y. S.

462.

§ 63 (N.Y.Co.Ct.) An allegation in an information that accused "did unlawfuly operate" a moving picture show, being a common show, held mere conclusion of law.-People v. Wacke, 137 N. Y. S. 652.

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INFANTS.

See Adoption; Deposits in Court; Divorce, § 332; Guardian and Ward; Limitation of Actions, 872; Master and Servant, §§ 278, 286; Municipal Corporations, § 706; Parent and Child; Theaters and Shows; Wills, § 657; Witnesses, § 275.

VII. ACTIONS.

§ 80 (N.Y.Sup.) The appointment of a guardian ad litem for nonresident infant defendants is a nullity, where made before service of process upon them was complete.-Ford v. Clendenin, 137 N. Y. S. 54.

$85 (N.Y.Sup.) A guardian ad litem of infants, who gives the undertaking required by Code Civ. Proc. § 744, and who without order of court deposits as such guardian in savings bank proceeds of actions brought by him for the infants, is not relieved of liability to the infants.-Harris v. Broadway Savings Inst., 137 N. Y. S. 234.

INFERIOR COURTS.

See Courts, §§ 36, 188-190.

INFLUENCE.

See Wills, §§ 163, 164, 166.
INFORMATION.

See Indictment and Information.

INJUNCTION.

See Corporations, §§ 201, 320; Limitation o
Actions, &60; Monopolies, § 24; Navigable
Waters, §§ 36, 37; Party Walls.

II. SUBJECTS OF PROTECTION AND
RELIEF.

(B) Property, Conveyances, and Incum-
brances.

§ 38 (N.Y.Sup.) A railroad company held entitled to restrain a village from work on certain land claimed by it to have been dedicated by the railroad company to public use, pending the trial on the question of right.-Lehigh & H. R. Ry. Co. v. Village of Warwick, 137 N. Y. S. 658.

III. ACTIONS FOR INJUNCTIONS. § 113 (N.Y.Sup.) A property owner held bar$71 (N.Y.Co.Ct.) Under Code Cr. Proc. red 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 certain streets, and a bridge therefor.-Danner v. New York & H. R. Co., 137 N. Y. S. 270. IV. PRELIMINARY AND INTERLOCU. TORY INJUNCTIONS.

VII. MOTION TO QUASH OR DISMISS,

AND DEMURRER.

§ 140 (N.Y.Sup.) It is discretionary with a trial court whether it will set aside a defective information on motion before arraignment, and | unless the question is free from doubt the court should leave counsel to his demurrer or motion in arrest of judgment.-People v. Herbert, 137 N. Y. S. 409.

(A) Grounds and Proceedings to Procure. § 136 (N.Y.Sup.) The court, in a suit to cancel a contract, held not authorized to grant a temporary injunction, on the ground of lack or failure of consideration.-New York Motion

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

Picture Co. v. Universal Film Mfg. Co., 137 N. Y. S. 278.

The court, in a suit by a corporation to cancel a contract, whereby it transferred its business to defendant, and whereby its stockholders agreed not to engage in such business for a specified period in any part of the United States or Canada, except Arizona, will not grant a preliminary injunction, on the theory that the transaction is an illegal restraint of trade.-Id.

The court, in a suit by a corporation to cancel its contract, whereby it transferred its business of producing and distributing materials for the moving picture business to defendant, on the ground that the contract is invalid as in restraint of trade, will not grant a temporary injunction on the motion of plain

tiff.-Id.

§ 137 (N.Y.Sup.) Where it is doubtful whether plaintiff, suing for the cancellation of contracts, will succeed, and interference by the court by temporary injunction may result in irreparable injury to defendant, if he finally succeeds, the court will not at plaintiff's_motion grant a temporary injunction.-New York Motion Picture Co. v. Universal Film Mfg. Co., 137 N. Y. S. 278.

VII. VIOLATION AND PUNISHMENT.

§ 223 (N.Y.Sup.) An injunction restraining the representatives of a labor union from interfering with the trade and business of a firm employing nonunion labor, to coerce it into employing union labor, is not violated by a representative informing union employés of a third person that they are handling nonunion material, but leaving to the men the voluntary determination to remain at work or leave. Bossert v. United Brotherhood of Carpenters and Joiners of America, 137 N. Y. S. 321. An injunction restraining the representatives of a labor union from conspiring to interfere with the good will and business of a firm employing nonunion labor is not violated by a representative informing members of the union employed by a third person that they are handling nonunion material, and that by continuing to do so they will violate the rules of the union and will be fined.-Id.

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person and property of an incompetent, and the award of commissions to the committee, he has no right to such commissions upon the corpus of the estate. In re Stratton, 137 N. Y. S. 311.

$ 42 (N.Y.Co.Ct.) The petition of a committee of the person and estate of an incompetent, on his annual accounting under Code Civ. Proc. § 2341, to be allowed to deduct one-half commissions for receiving the corpus of the estate, must be denied; his proper remedy being under section 2342.-In re Stratton, 137 N. Y. S. 311.

V. PROPERTY AND CONVEYANCES. § 67 (N.Y.Sup.) One who, after being rerescission of a conveyance agreed to by his stored to sanity, accepts the proceeds of a committee, is estopped to repudiate the transaction.-Newton v. Evers, 137 N. Y. S. 507.

INSOLVENCY.

See Assignments for Benefit of Creditors; Bankruptcy; Sales, § 296.

INSTRUCTIONS.

To jury, see Trial, §§ 211-268.

INSURANCE.

See Parties; Trusts, §§ 11, 46, 58, 59, 134; Vendor and Purchaser, § 199.

VI. PREMIUMS, DUES, AND ASSESSMENTS.

had, without plaintiff's consent, transferred, on $198 (N.Y.Sup.) That an insurance company its books or elsewhere, her interest in a policy to some other person, does not constitute the basis of an action for the return of the preIns. Co., 137 N. Y. S. 887. mium.-Lewis v. London & Lancashire Fire

VII. ASSIGNMENT OR OTHER TRANSFER OF POLICY.

§ 199 (N.Y.Sup.) Straight life policies are nonnegotiable choses in action, and are assignable.-Johnston v. Scott, 137 N. Y. S. 243. VIII. CANCELLATION, SURRENDER, ABANDONMENT, OR RESCISSION

OF POLICY.

$238 (N.Y.Sup.) The "insured," under Insurance Law, § 122, providing that fire insurance companies shall cancel any policy upon the request of the insured, includes the mortgagee, for whose benefit a mortgage clause has been inserted.-Lewis v. London & Lancashire Fire Ins. Co., 137 N. Y. S. 887.

X. FORFEITURE OF POLICY FOR BREACH OF PROMISSORY WARRANTY, COVENANT, OR CONDITION SUBSEQUENT.

(E) Nonpayment of Premiums or Assessments.

§ 365 (N.Y.Sup.) Under the express terms of an accident insurance policy, a beneficiary, paying a monthly premium after it was due, held not entitled to recover for injuries sus

tained before 12 o'clock the following day.-
Popovitz v. United States Health & Accident
Ins. Co., 137 N. Y. S. 788.

INTERPRETATION.

See Bills and Notes, § 123; Contracts, §§ 154-
212; Deeds, § 123; Mortgages, §§ 115-151;
Statutes, $8 215-241; Trusts, §§ 134, 140;
Wills, 88 439–706.

INTERROGATORIES.

XI. ESTOPPEL, WAIVER, OR AGREE-
MENTS AFFECTING RIGHT TO
AVOID OR FORFEIT POLICY.
$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
insurance company or its agents will operate
as an estoppel against claiming a forfeiture of
the policy only where it has misled insured.-
Scheeler v. Casualty Co. of America, 137 N. Y.
S. 811.

§ 388 (N.Y.Sup.) An indemnity insurer, un-
dertaking, with knowledge of the facts, the de-
fense of an action against insured, and depriv-
ing insured of control, and preventing a set-
tlement for a comparatively small amount, is,
after judgment against insured, estopped to
deny that the accident is within the policy.-
Rosenbloom v. Maryland Casualty Co., 137 N.
Y. S. 1064.

An indemnity insurer, controlling the defense
of an action against insured and neglecting to
appeal, may not defeat an action on the policy
on the ground that there had been no adjudica-
tion by a court of last resort.-Id.

XIV. NOTICE AND PROOF OF LOSS.
§ 558 (N.Y.Sup.) A letter by the attorney of
an insurer and his retention of proofs held
not to be a waiver for the company of a pro-
vision of the policy requiring insured to give
notice of his illness as soon as reasonably pos-
sible. Scheeler v. Casualty Co. of America,
137 N. Y. S. 811.

XVIII. ACTIONS ON POLICIES.

§ 640 (N.Y.Sup.) An accident insurance com
pany, sued on a policy, held entitled to rely on
a provision concerning time when renewal
would be effective, without specially pleading
it. Popovitz v. United States Health & Ac-
cident Ins. Co., 137 N. Y. S. 788.

§ 665 (N.Y.Sup.) Evidence held insufficient to
support a judgment for intervener, claiming the
proceeds of a life policy by assignment.-Flynn
v. Prudential Life Ins. Co., 137 N. Y. S. 126.

INTENT.

See False Pretenses, § 4; Fraudulent Con-
veyances, § 168; Life Estates, § 15; Statutes,
$215; Wills, §§ 439, 446, 463, 481, 529,
545, 634.

INTEREST.

See Courts, § 189; Eminent Domain, § 238;
Trusts, 140; Usury; Vendor and Purchas-
er, §§ 172, 196, 199.

INTERLOCUTORY INJUNCTION.

See Injunction, §§ 136, 137.

INTOXICATING LIQUORS.

See Indictment and Information, § 63.

III. LOCAL OPTION.

§ 38 (N.Y.Sup.) Certain alleged irregulari-
ties in the submission of local option questions
occurring prior to the canvass of the votes held
not sufficiently proved to authorize a resubmis-
sion.-In re Norton, 137 N. Y. S. 376.

Where a local option election had been prop-
erly held under Liquor Tax Law, § 13, and the
votes canvassed and the return of the judges
declared and filed, failure of the inspectors to
make and file a return and to seal and deliver
the ballot box to the proper custodian did not
authorize a resubmission.-Id.

VI. OFFENSES.

$154 (N.Y.Sup.) Under Liquor Tax Law
(Laws 1896, c. 112) § 13, as amended by Laws
1897, c. 312, and Laws 1910, c. 485, where the
sale of liquor not to be drunk on the premises
was negatived, but the sale by hotel keepers
was authorized, a hotel keeper, having secured
sell liquors not to be drunk on the premises.-
a license to sell at his hotel, had no right to
People v. Yarter, 137 N. Y. S. 462.

IX. SEARCHES, SEIZURES, AND FOR-
FEITURES.

$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
lager beer was sold on the premises June 14,
1912, but the receipt of the officer shows that
the liquors have been taken from the premises
since the verification of the complaint, the same
complaint cannot be used as the foundation of
the issuance of another warrant thereon.-In re
Ingalls, 137 N. Y. S. 780.

§ 249 (N.Y.Co.Ct.) In a proceeding under Liq-
uor Tax Law, § 33, where the return of serv-
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
illegal, and will be vacated.-In re Ingalls, 137
N. Y. S. 780.

JEOPARDY.

See Criminal Law, § 200.

JOINT ADVENTURES.

$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
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 action, and the leased property and the proceeds are still in the custody of the nominal lessee, defendant cannot be compelled in equity to account to any of the other associates for their shares of the proceeds of the leased property pursuant to the agreement of association.-Bowman v. Furber, 137 N. Y. S. 560.

JUDGES.

palpably unavailable as a matter of law.-London v. Schneider, 137 N. Y. S. 694.

$145 (N.Y.Sup.) In an action for conversion of certain securities, facts held to show a meritorious defense, entitling defendant to the va cation of a default judgment on terms.-Rycroft v. Pierce, 137 N. Y. S. 950.

§ 151 (N.Y.Sup.) Defendant's statement that he did not appear on the trial because his son, 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 business interests, had he not been there, is a mere

III. RIGHTS, POWERS, DUTIES, AND conclusion, and insufficient to entitle him to an opening of his default.-Kugelman v. Mergentheim, 137 N. Y. S. 869.

LIABILITIES.

show no satisfactory reason why defendant § 163 (N.Y.Sup.) Where the moving papers should be relieved of a default judgment, it is Hotel Co. v. Orleans Real Estate Co., 137 N. an abuse of discretion to set it aside.-Cascade

$36 (N.Y.Sup.) Where the court having jurisdiction of the person and the subject-matter of the controversy imposes a fine for contempt, there is no civil liability on the part of the judge or those enforcing his orders, unless jurisdiction 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.

JUDGMENT.

See Adoption, § 16; Appeal, §§ 91, 105, 864, 870, 874, 1175, 1180, 1194, 1195, 1212; Contracts, $350; Courts, 88 30, 36, 99, 189; Criminal Law, § 995; Limitation of Actions, $$ 39, 72; Principal and Surety; Process, 149; Receivers; Subrogation; Trusts, § 331; Usury, § 18; Wills, §§ 346, 421, 432, 706. I. NATURE AND ESSENTIALS IN GENERAL.

§ 17 (N.Y.Sup.) A judgment against nonresident defendants, entered before service of process by publication was complete, is void for lack of jurisdiction.-Ford v. Clendenin, 137 N. Y. S. 54.

III. ON CONSENT, OFFER, OR AD

MISSION.

$84 (N.Y.Sup.) Where defendant admitted liability on a cause of action for $30.05 and set up a counterclaim, which was dismissed, plaintiff was entitled to judgment for that amount, and a judgment for defendant was erroneous.--Schenck v. Fischer, 137 N. Y. S. 857.

IV. BY DEFAULT.

(A) Requisites and Validity.

§ 109 (N.Y.Sup.) Defendant, by refusing to go on with the trial and leaving the courtroom, held to have suffered a deliberate default.-Cascade Hotel Co. v. Orleans Real Estate Co., 137 N. Y. S. 1054.

(B) Opening or Setting Aside Default. $143 (N.Y.Sup.) A default should be vacated, where defendant's counsel was engaged in the trial of another cause, without an opportunity to procure other counsel, and on a denial of a motion to hold the case pending the completion of counsel's engagement.-Evans v. White, 137

N. Y. S. 1089.

§ 145 (N.Y.Sup.) Vacation of a default is error, where it appears that the default was deliberate, and that the defense relied upon is

§ 167 (N.Y.Sup.) Where a judgment on default was set aside on defendant giving an undertaking to pay any judgment plaintiff might finally recover, and thereafter defendant filed a counterclaim, which he withdrew, and consented to judgment for plaintiff on specified conditions, the judgment for plaintiff was within the undertaking, and, in the absence of fraud or collusion, was prima facie evidence against the surety.-E. R. Thomas Motor Branch Co. v. United States Fidelity & Guaranty Co., 137 N. Y. S. 1094.

VI. ON TRIAL OF ISSUES.
(B) Parties.

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(C) Conformity to Process, Pleadings, Proofs, and Verdict or Findings. § 250 (N.Y.Sup.) Where plaintiff pleaded and testified that a contract with defendant was completed on a certain date, and that work was done thereafter under a separate contract with different terms, a recovery for such subsequent work according to the terms of the written contract was not warranted by the pleadings and proof.-O'Hehir v. Central New England Ry. Co., 137 N. Y. S. 627.

XI. COLLATERAL ATTACK.
(B) Grounds.

8490 (N.Y.Sup.) A plaintiff, suing to foreclose a mechanic's lien, may impeach a prior judgment, adjudging that he has no lien, by showing that he was not served with summons and complaint in such action.-Callahan v. Gerbereux, 137 N. Y. S. 996,

XIII. MERGER AND BAR OF CAUSES

OF ACTION AND DEFENSES.

(A) Judgments Operative as Bar. § 540 (N.Y.Sup.) A judgment by a court of competent jurisdiction, unreversed, is conclu

402.

XXI. ACTIONS ON JUDGMENTS.

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 imaction.-Pierce v. Kinney, 137 N. Y. S. 475. provements.-Ketcham v. Deutsch, 137 N. Y. S. $553 (N.Y.Sup.) A tenant, dispossessed for nonpayment of rent, having brought a proceeding under Code Civ. Proc. § 2259, to adjudicate his rights on redemption held not entitled, in a subsequent action against the landlord, to recover any damage arising prior to the final order in such proceeding.-Terwilliger v. Browning, King & Co., 137 N. Y. S. 572.

§ 563 (N.Y.Sup.) A judgment in an action to foreclose a chattel mortgage on taxicabs, wherein a garage keeper appeared and set up a claim to a lien, which does not recite what disposition was made of such claim, is insufficient, in the absence of other evidence to show what was decided, to constitute a bar to a subsequent action based on such lien.-Cuneo v. Freeman, 137 N. Y. S. 885.

(B) Causes of Action and Defenses Merged, Barred, or Concluded.

8585 (N.Y.Sup.) A former judgment in favor of defendant in an action to recover for services of a physician to a mutual beneficial association, on the ground that plaintiff had been expelled, held no bar to a subsequent action to recover salary for the balance of his term, after reversal of his expulsion.-Page v. Cohen, 137 N. Y. S. 116.

§ 590 (N.Y.Sup.) A personal judgment against a husband alone, in an action against him and his wife to foreclose a mechanics' lien, held no bar to plaintiff's right to maintain a new action to enforce the lien against the wife.-Pierce v. Kinney, 137 N. Y. S. 475.

(B) Foreign Judgments.

$946 (N.Y.Sup.) Under Code Civ. Proc. Cal. $ 283, a California court held to have authority to set aside a judgment entered to enforce a Wisconsin judgment, after the reversal of the original judgment upon notice to the attorney who secured the California judgment for the nonresident plaintiffs.-Ellis v. McGovern, 137 N. Y. S. 1029.

XXII. PLEADING AND EVIDENCE OF

JUDGMENT AS ESTOPPEL OR
DEFENSE.

§ 949 (N.Y.Sup.) Defense alleging recovery against joint tort-feasor and satisfaction by him held to sufficiently show that the recovery was on the same cause of action.-Berg v. Bates, 137 N. Y. S. 1032.

§ 951 (N.Y.Sup.) A party, relying on a former judgment as a defense to an action, has the burden of establishing that it constitutes a bar.-Cuneo v. Freeman, 137 N. Y. S. 885.

$951 (N.Y.Sup.) Where, in an action on a judgment, the defendants set up a judgment of another state, and the plaintiff, by a plea, set up an order of the same court vacating such judgment, the burden is on the defendants to impeach the order.-Ellis v. McGovern, 137 N. Y. S. 1029.

JUDICIAL NOTICE.

8614 (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.

(C) Persons Who may Take Advantage of the Bar.

§ 631 (N.Y.Sup.) A demurrer to a defense by one joint tort-feasor alleging the recovery of judgment for the same cause against the other tort-feasor and a satisfaction thereof was improperly sustained.-Berg v. Bates, 137 N. Y. S. 1032.

Where principal and agent were jointly liable for aiding a debtor to transfer his property in fraud of his creditors, and the principal received a part of the proceeds, the recovery and satisfaction of a judgment against the agent relieved the principal from liability in both respects.-Id.

In an action against one of two joint tortfeasors, the recovery and satisfaction of judgment against the other tort-feasor is a proper set-off.-Id.

XIV. CONCLUSIVENESS OF ADJUDI

CATION.

JUDICIAL POWER.

See Constitutional Law, § 70.

JUDICIAL SALES.

See Executors and Administrators, § 379; Limitation of Actions, § 39.

JURISDICTION.

See Adoption, §7; Contempt, § 57; Courts; Eminent Domain, § 172; Executors and Administrators, §§ 32, 379; Judges, § 36; Justices of the Peace, § 82; Municipal Corporations, 374; Trusts, §§ 161, 168; Wills, §§ 211, 249.

JURY.

See Trial, §§ 315, 317.

II. RIGHT TO TRIAL BY JURY. §12 (N.Y.Sup.) Const. art. 1, § 2, in providing that trial by jury "in all cases where it has been heretofore used shall remain inviolate forever," meant that questions of fact 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-137 N. Y. S. 917.

(D) Judgments in Particular Classes of Actions and Proceedings.

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

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