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JUSTICES OF THE PEACE. . appliances and supply heat and water, and
may omit such service pending necessary re-

1 I RI

PC See Appeal, $ 1074; Courts, $ 30.

pairs, on failure, notwithstanding constant ef-
forts at repairs, to supply heat, must recon-

1 295 IV. PROCEDURE IN CIVIL CASES. struct the plant or introduce a new one.-011288 73, 74 (N.Y.CO.Ct.) A motion for a change werter v. Escher, 137 N. Y. S. 881. of justices under Code Civ. Proc. $ 3151, on the ground that the defendant expected to

(E) Injuries from Dangerous or Defective

Condition, prove by the justice that the plaintiff stated he had no cause of action, held insufficient.- faith leased his entire building to a lessee, who

$ 164 (N.Y.Sup.) A landlord, wbo in good Davis v. O'Day, 137 N. Y.'S. 411.

A justice's order denying a motion for a agreed to keep the premises in good repair at change of justices, which stated that the pres: subtenant of a room in a building, caused more

his own cost, is not liable for injuries to a ent justice was not a material witness, as set forth in the defendant's affidavit, held 'not in- than a year later by a defective floor.–Jenking sufficient for containing in addition the un

v. Gruen, 137 N. Y. S. $33. sworn statement of the justice that the matters

8 168 (N.Y.Sup.) A landlord cannot escape contained in the affidavit were not true.-Id.

liability for injury to a tenant, caused by $ 81 (N.Y.CO.Ct.) Under Const. 1869, art. 6, treads on cellar stairs not of the width requir. § 18, and Amsterdam City Charter, 8.50, serv; did not carry a light with her; the accident

ed by Tenement House Law, $ 21, because she ice of process issued from a justice of the city occurring on her first use of the stairs

, which within the county held sufficient.–Davis v. she had a right to assume were constructed as 0'Day, 137 N. Y. S. 411.

required by law.-Phelps v. Kaufman, 137 N. ) Y. summons from a justice court showing service ; 169 (N.Y.Sup.) In an action against a landice was made, prima facie confers jurisdiction lord for injuries to a third person by falling on the justice.-Davis v. O'Day, 137 N. Y. S. on stairs at a place where the light was inade


quate, held, that his negligence in descending 411.

without holding to the railing was a question $ 84 (N.Y.CO.Ct.) A general appearance be- for the jury;-Downs v. Brown Realty Co., 137 fore a justice and interposition of such defens. N. Y. š. 327. es as the defendant had held not a waiver of an objection to a refusal of the justice to tion of a building was filed in the tenement

$ 169 (N.Y.Sup.) That application for erecchange justices on special appearance.-Davis house department of New York City, and a viov. O'Day, 137 N. Y. S. 411.

lation was filed against its use without a cer. § 107 (N.Y.Sup.) A defendant in justice's tificate, shows that the building was within court is, under Code Civ. Proc. $ 2961, enti- Tenement House Law, $ 21, which fixes the di. tled absolutely to an adjournment for a reason-mensions of treads on stairs.-Phelps v. Kaufable time, wlien applied for at the time of the man, 137 N. Y. S. 345. joinder of issues, and, unless plaintiff so re

$ 169 (N.Y.Sup.) Proof that there was ice and quires, he need not make the affidavit nor give snow in front of an apartment house, and that the undertaking provided for by the statute.

a tenant, upon leaving it, slipped upon the ice Molinski v. Burnett, 137 N. Y, S. 259.

and was injured, and that she afterwards accus

ed the janitor of having thrown soapy water JUSTIFICATION.

on the sidewalk, does not establish any cause of See Libel and Slander, & 94.

action.-Pearlman v. Wahlig & Sonsin Co., 137

N. Y. S. 876.

See Evidence, g 65; Vendor and Purchaser, $$
228, 229,

(A) Rights and Liabilities. LACHES.

186 (N.Y.Sup.) Where a municipal corpora,

tion, after the expiration of a lease, continued See Depositions; Injunction, $ 113; Mortgages, in possession, it was liable for rent in the ab88 425, 559.

sence of allegation and proof of eviction, though

possession was somewhat interfered with.-Lar LANDLORD AND TENANT. sen v. City of New York, 137 N. Y. S. 144. See Accord and Satisfaction, 88 4, 27; Brok

(B) Actions. ers, § 63;

Contracts, $ 303; Evidence, 8 414; Joint Adventures, $. 5; Judgment, which defendant counterclaimed for false rep

$ 231 (N.Y.Sup.) In an action for rent, in 553; Life Estates, $ 25; Mechanics' Liens,

resentations, defendant's uncontradicted testi. 73.

mony held to entitle him to judgment.-HataVII. PREMISES, AND ENJOYMENT

satah Realty Co, v. Gulick, 137 N. Y. S. 787. AND USE THEREOF.

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$ 231 (N.Y.Sup.) In an action on a lease

against the guarantor of the lessee for unpaid (D) Repairs, Insurance, and Improve

rent, the burden is upon the defendant to es

tablish that an act of eviction set up as a de$ 152 (N.Y.Sup.) A landlord, stipulating that fense was done by the landlord, or under bis he will maintain proper heating and hot water authority.-Katz v. Alvord, 137 N. Y. S. 870.


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$ 295 (N.Y.Sup.) Code Civ. Proc. $ 2256, hela See Insurance, $ 558.
not so far self-executing as to reinstate á dis-

possessed tenant on compliance with its terms,
especially where the landlord has relet; section See Pleading, 129.
2256 being properly construed with section
2259.–Terwilliger v. Browning, King & Co., I. WORDS AND ACTS ACTIONABLE,
137 N. Y, S. 572.

AND LIABILITY THEREFOR. $ 297 (N.Y.Sup.) A landlord held not entitled

§ 15 (N.Y.Sup.) In deciding whether a newsto institute summary proceedings for the re- paper article is libelous, the scope and the obmoval of a tenant before the end of the term ject of the entire article are to be considered without exercising an option to forfeit for together, and such a construction adopted as breach of covenant before their institution. would naturally be given to it.-O'Connell v. Fifth Ave. Bldg. Co. v. Potaras, 137 N. Y. S. Press Pub. Co., 137 N. Y. S. 332. 896.

A publication, when the American Sugar ReA provision of a lease that the tenant waives fining Company, its officers, and employés were a right to notice of legal proceedings held not charged with defrauding the government by to forego the necessity for the exercise of an tampering with scales, that plaintiff was the option to terminate for breach of a covenant inventor of a corset steel spring device, which before the landlord could bring summary pro was shown to an official of the sugar company, ceedings to oust the tenant as one holding over. fairly charges plaintiff with an offense against -Id.

Rev. St. U. S. $$ 5440, 5445 (U. S. Comp. $314 (N.Y.Sup.) The provisions under Code St. 1901, pp. 3676, 3678), and Act Cong. June Civ. Proc. $$ 2256, 2259, for a redemption of 10, 1900, 8° 9.-Id. premises by a dispossessed tenant, subject to oc

§ 16 (N.Y.Sup.) A publication held to impute cupancy by a new tenant, which may be term- to plaintiff a vicious act, tending to diminish inated, do not prevent the landlord from reletting his respectability and impair his comfort by the the premises and making reasonable alterations attendant disgrace and contempt.-O'Connell v. to accommodate the new tenant.-Terwilliger Press Pub. Co., 137 N. Y. S. 332. v. Browning, King & Co., 137 N. Y. S. 572. A dispossessed tenant, on obtaining an order,

IV. ACTIONS. under Code Civ. Proc. $82256, 2259, directing that he be let into possession on paying a speci- (B) Parties. Preliminary Proceedings, and

Pleading. fied amount, after the premises had been relet and altered, to the disadvantage of the purposes $ 94 (N.Y.Sup.) Justification held to be for which the dispossessed tenant used them. broad as the alleged libel, and sufficient.-Tully gave him no greater right against the landlord v. New York Times Co., 137 N. Y. S. 962. than a lease would have given; the burden be A justification in libel must be as broad ing on him, and not the landlord, to oust the as the libel.-Id. new tenant.--Id. An order, under Code Civ. Proc. $8 2256,

LICENSES. 2259, in a redemption proceeding brought by a dispossessed tenant, held subject to enforce. See Certiorari; Intoxicating Liquors, $ 154;

Theaters and Shows. ment in an equitable action.--Id. A dispossessed tenarit, in suing to enforce an

1. FOR OCCUPATIONS AND PRIVIorder in a redemption proceeding, brought un

LEGES. der Code Civ. Proc. $S 2236, 2259, is not entitled to

recover for use and occupation by $ I (N.Y.Sup.) A license is a permission to do the landlord, if that relief is not relied upon by something.---'eople ex rel. Moses v. Gaynor, 137 the complaint.-Id.

N. Y. S. 196.

$ 22. (N.Y.Sup.) Under General City Law, $ LARCENY.

44, subd. 2, and sections 45, 46, a master plumSee Corporations, $ 123; False Pretenses; Re- ber; having passed an examination and secured

a certificate in F., and having removed to S., ceiving Stolen Goods.

was not entitled to registration without having

first passed a new examination before the LAW OF THE CASE.

plumbers' board at S.-People ex rel. Lavier

v. Hessler, 137 N. Y, S. 664. See Appeal, 88 1099, 1195.

$ 39 (N.Y.Sup.) Where a license to operate

a moving picture show is unnecessary, one may LAW OF THE ROAD.

conduct his business without a license, and See Highways.

maintain actions for trespass, or perhaps in

equity, against those interfering therewith.LEASE.

In re Whitten, 137 N. Y. S. 360, See Landlord and Tenant.



$ 60 (N.Y.Sup.) Where one erecting a See Taxation, 88 860, 876.

mill on state land adjacent to the Erie Canal For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (3) NUMBER



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was permitted to maintain and operate it for II. COMPUTATION OF PERIOD OF over 30 years, unmolested by the state, he be

LIMITATION. came a licensee, and his rights could be terminated without compensation only by giving him

(A) Accrual of Right of Action or Dea reasonable notice to remove the property.

fense. Watson v. Empire Engineering Corporation, $ 60 (N.Y.Sup.) An action to quiet title and 137 N. Y. S. 231.

remove a cloud thereon, and incidentally to en.

join defendant's interference with plaintiff's LIENS.

lands under water, by reason of its nature, is See Attorney and Client, 88_190, 192; Judg. Gamble Mfg: Co., 137 N. Y. S. 737.

not barred by limitations.-Dooley y. Proctor & ment, 8563; Livery Stable Keepers, § 8; Mechanics' Liens; Mortgages; Municipal Cor- (C) Personal Disabilities and Privileges. porations, $ 373; Vendor and Purchaser, $ 229; Wills, 8 732.

$ 72 (N.Y.Sup.) The 10-year statute of limitation against an action to set aside a judg

ment held to begin to run from the time of the LIFE ESTATES.

sale of the property, and not from the date of See Executors and Administrators, $ 298; Wills, of action would be extended only one year after

the majority of infant defendants, whose right 88 15, 597, 614, 687.

their majority by Code Civ. Proc. $ 396.- Ford $ 15 (N.Y.Sur.) What is "income" from cap. v. Clendenin, 137 N. Y. S. 54. ital stock, to which a life tenant is entitled under a will, as distinguished from “principal," (H) Commencement of Action or Other to which the remainderman is entitled, defends

Proceeding. largely on testator's presumed intention.-In re $ 120 (N.Y.Sup.) The running of the limitaBunker's Estate, 137 N. Y. S. 104.

tion of actions against New York City by A transfer of assets by a railway company to Greater New York Charter (Laws 1901, c. a trustee and subsequent issue of participation 466) § 261, as amended by Laws 1906, c. 550, certificates by the trustee do not constitute a held not suspended, under the terms of Code “dividend" on stock, so as to entitle a life ten- Civ. Proc. $ 405, by the commencement of an ant under a stockholder's will to it as against action in the City Court, which had no juristhe remainderman.-Id.

diction.--Gaines v. City of New York, 137 N. $ 25 (N.Y.Sup.) A lease given by a life tenant Y. S. 964. terminated at the option of remaindermen on

LIQUOR SELLING. the landlord's death.-Hinton v. Bogart, 137 N. Y. S. 697.

See Intoxicating Liquors. Forfeiture of lease given by a life tenant at her death held waived by the receipt of rent

LIS PENDENS. thereafter by remaindermen.-Id. Where certain remaindermer continued to re

§ 22 (N.Y.Sup.) Code Civ. Proc. $ 1071, held ceive rent from the lessee of the life tenant not to give a party filing a lis pendens an inafter the life tenant's death without disposses- terest in the property therein described superision, the relation of landlord and tenant was not ed deed, who was not made a party to the ac

or to the rights of another under an unrecordinterrupted, and the tenant was liable under tion.—Nugent v. Foley, 137 N. Y. S. 705. the original contract.--Id.

$ 24 (N.Y.Sup.) Under Code Civ. Proc. $ LIMITATION OF ACTIONS.

1671, held, that service of an answer by a jun.

ior mortgagor in mortgage foreclosure, setting See Adverse Possession; Executors and Ad-up a right to require plaintiff to sell a lot on ministrators, $ 213; Mortgages, 8 561. which the junior mortgagor had no security,

operated as notice to a purchaser of that lot; I. STATUTES OF LIMITATION. lis pendens having been filed.--Hubbard v. Ly.

decker, 137 N. Y. S. 714. (B) Limitations Applicable to Particular Actions.

LIVERY STABLE KEEPERS. 8 39 (N.Y.Sup.) An action to have a judgment and sale adjudged null and void for want $7 (N.Y.Sup.) Where plaintiff delivered to of jurisdiction, or to impeach such sale for defendant for storage in his garage an auto constructive fraud in the purchase by a trustee, body in apparently good condition, and the held subject to the 10-years limitation pre- same, when returned nearly three years later, scribed by Code Civ. Proc. $$ 388, 396.-Ford was broken and the upholstery moth-eaten, and v. Clendenin, 137 N. Y. S. 54.

an expert proved that by the usual methods the Though partition or ejectment might be main body would not have been damaged to the extained to recover land which was the subject- tent that it was damaged, there was a prima matter of a judgment, held, that the 10-year facie case of negligence of defendant, who, to limitation prescribed by Code Civ. Proc. 8 388, escape liability, must prove freedom from negli. for proceedings not specially provided for, ap- gence.--Wimpfheimer v. A, T, Demarest & Co., plied to an action to set it aside for want of 137 N. Y. S. 908. jurisdiction over the subject matter.-Id.

$ 8 (N.Y.Sup.) A garage keeper, who had acThe 10-year limitation prescribed by Code tual possession of taxicabs kept in his garage, Civ. Proc. $ 388, applies to an action to set had a lien thereon, unless it was barred by a aside a judgment, invalid because rendered with former judgment.--Cuneo v. Freeman, 137 N. out jurisdiction of the parties defendant.-Id. Y. S. 885.

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state's moral obligation to the nation, and a

direction to the commissioners of the Land Of-
See Money Lent.

fice to attempt to make a fair and reasonable

effort to negotiate with the nation for an ad-

justment of the claim; and mandamus lies
See Intoxicating Liquors, $ 38.

to compel the commissioners to act.-People

ex rel. Cayuga Nation of Indians y. Commission-

ers of Land Office, 137 N. Y. S. 393.

8 118 (N.Y.Sup.! The only remedy, where col-
See Insane Persons.

lector of assessments and arrears refuses to re-

ceive payment of the amount of a tax lien and

cancel a transfer, is by mandamus.-In re Con-
See Champerty and Maintenance.

nell, 137 Y. Y. S. 667.

(C) Acts and Proceedings of Private Cor-

porations and Individuals.
See Judges, & 36.

$ 125 (N.Y.Sup.) New York courts will not

grant mandamus to compel the reinstatement
MALICIOUS PROSECUTION. of a member in a nonresident lodge of a foreign

beneficial association, though authorized to do
See False Imprisonment; Pleading, $ 166. business in New York.-People ex rel. Beharka

y. National Slayonic Society of the United

States of America, 137 N. Y. S. 1057.
$36 (N.Y.Sup.) Indictment of plaintiff by III. JURISDICTION, PROCEEDINGS,
grand jury on the same charge for which he

was arrested and discharged without a trial
by a magistrate held a defense to malicious

f 148 (N.Y.Sup.) Private citizens were prop-
prosecution.-Weglein v. Trow Directory, Print- er relators in mandamus to compel an elec-
ing & Bookbinding Co., 137 N. Y, s. 556,

tion board to perform its duties according to a

valid statute.-People ex rel. Hotchkiss v.

Smith, 137 N. Y. S. 387; People ex rel. Wood-

ruff v. Britt, Id. 393.
See Waters and Water Courses, $ 203.

§ 172 (N.Y.Sup.) Under an order to show
I. NATURE AND GROUNDS IN GEN- cause in mandamus, the court will only deter-

mine the constitutionality of the statute at-

tacked.-People ex rel. Hotchkiss v. Smith,
$ 14 (N.Y.Sup.) Mandamus to compel a 137 N. Y. S. 387; People ex rel. Woodruff v.
board of elections to file a petition to place an Britt, Id. 393.
independent cancicate on a ballot held not
prematurely brought without a demand and re-

$181 (N.Y.Sup.) Where, in mandamus, is-
fusal and before the last day for filing such pe- davits, relator, insisting

sues of fact are raised by the answering afli-
titions.--People ex rel. Hotchkiss v Smith, writ, concedes 'the truth of the affidavits.--In

137 N. Y. S. 387; People ex rel. Woodruff v.
Britt, Id. 393.



re Whitten, 137 N. Y. S. 360.

$ 187 (N.Y.Sup.) The comptroller of the city
II. SUBJECTS AND PURPOSES OF of New York, made a party to a motion for

peremptory mandamus to compel him to pay as

a county expense items of disbursements by an
(B) Acts and Proceedings of Public Offi-

attorney assigned to defend a poor person, may
cers and Boards and Municipalities,

properly appeal.--In re Kenney, 137 N. Y. S.
$ 74 (N.Y.Sup.) Mandamus lies to control the | 1097.
action of the board of elections of a county, to
the end that it may be known, prior to the

last day for the filing of nominating certificates,
how many electors and who may sign such cer- See Divorce; Husband and Wife; Wills, 8
tificates. -People ex rel. Hotchkiss y. Smith,

137 N. Y. S. 177.

$76 (N.Y.Sup.) Where the position of fore MARSHALING ASSETS AND SE
man painter in the bureau of buildings in the
borough of Manhattan was abolished, and the

name of relator was certified to the state civil
service commission as provided by Civil Serv. See Mortgages, § 289.
ice Law, $ 22, as amended by Laws 1910, c.
264, he was not entitled to mandamus to com-

pel reinstatement.-People ex rel. Ray v. Mc-
Aneny, 137 N. Y. S. 1055,

See Appeal, $ 1066; Death, § 99; Injunction,
$ 81 (N.Y.Sup.) Laws 1909, c. 255, relating $ 233; Judgment, $ 239; New Trial, $ 159;
to a claim of the Cayuga Nation of Indians Pleading, $ 317; States, $ 53; Trade Unions ;
against the state, is an acknowleigment of the Trial, $$ 62, 211, 260.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (3) NUMBER



$ 162

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| ing grade.-Kwiatkowski v. Nichols Copper Co., I

137 N. Y. S. 586,
(A) Creation and Existence.

$ 116 (N.Y.Sup.) A plank extended between
83 (N.Y.Sup.) In an action for services, it is brick piers along a steel tube which plaintiff
not necessary to establish a contract of employ- was engaged in painting, held a scaffold within
ment that plaintiff should prove a consideration Labor Law, $ 18, and hence the court erred
other than the services rendered.-Butterly v. in charging that defendant was pot liable for
Deering, 137 N. Y. S. 836.

furnishing an unsafe scaffold, unless the loca.
$6 (N.Y.Sup.) Evidence held to warrant a tion was obviously dangerous.-Holsapple v.
tinding that defendant contracted to employ International Paper Co., 137 N. Y. S. 450.
plaintiff to perform clerical services at specified

$117 (N.Y.Sup.) A "stiff-leg derrick" used in
salary, and also to solicit retainers at a speci- sewer construction held a "structure” within
fied commission.-Butterly v. Deering, 137 N. Labor Law, $ 18; and hence a fall thereof due
Y. S. 836.

to insufficient inspection resulting in the death $173
89 (N.Y.Sup.) That a salesman held over aft, of an employé held actionable negligence.-
er the expiration of a second six-months period Stevens v. Stanton Const. Co., 137 N. Y. S.
of employment did not give rise to a presump: 1024.
tion that the parties had agreed to a renewal $ 121 (N.Y.Sup.) The requirement, under La.
of the employment contract for a third six-months bor Law, $ 81, that vats be properly guarded,
period.- Moskowitz v. Mawhinney, 137 N. Y. requires guards to prevent injury to employés

S. 903.

through splashing of liquids, as well as to pre.

vent their fall into vats, if such injury would
II. SERVICES AND COMPENSATION. be foreseen by a reasonably prudent man in

using ordinary care.-Bell v. Proctor & Gam-
(B) Wages and Other Remuneration.

ble Mfg. Co., 137 N. Y. S. 266.
$ 73 (N.Y.Sup.) Where defendant either dis-

Machinery, permitted to remain unguarded, in
charged plaintiff or consented to his leaving his violation of Labor Law, $ 81, is defective."
employment, defendant could not defend an ac: within the meaning of the Employer's Liabil-
tion for services on the theory that plaintiff ity Act.-ID.

| 217
left before the end of the term.--Butterly v.

$121 (N.Y.Sup.) Labor Law, $ 20, requiring
Deering, 137 N. Y. S. 836.
That a servant, in leaving his employment, require a division of the various wells of the

the guarding of elevator shafts, held not to
lunintentionally gathered up, papers on bis desk, | elevator“shaft, so as to guard against possi-
among which were papers belonging to his em-

ble accidents in the work of installing the ele.

ployer, did not deprive him of the right to re-

vators.--Swenson v. Charles T. Wills, 137 N. werier
cover for services rendered.--Id.
Y. S. 516.

$ 80 (N.Y.Sup.) Where, in an action for serv.

§ 129 (N.Y.Sup.) Any absence of lights was
ices rendered under contract to be paid for re-

not the proximate cause of the injury of a
tainers "procured” by plaintiff, it was impos- stevedore acting as gangwayman in the loading
sible to determine whether fees allowed were on of a ship; he being able to see, the accident
account of cases withi which plaintiff merely had occurring from the winchman starting up the
something to do, as distinguished from procur. engine too quick, and he not depending on sight
ed, the judgment was unsustainable.—Butterly for his actions, but they being controlled by
v. Deering, 137 N. Y. S. 836.

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
(B) Tools, Machinery, Appliances, and by materials used by one subcontractor falling

on him in consequence of the acts of an em.
$8 101, 102 (N.Y.Sup.) A master need use on. ployé of a subcontractor, the former subcon-
ly reasonable cåre to provide reasonably safe tractor held not liable, while the second subcon.
tools and appliances, and he need not so act as tractor was liable.-Morton v. Smith Hoisting
to make an accident resulting in injury to sery- Co., 137 N. Y. S. 829.
ants impossible.-Kwiatkowski v. Nichols Cop-

(C) Methods of Work, Rules, and Orders.
per Co., 137 N. Y. S. 580.
&$ 101, 102 (N.Y.Sup.). A master need not pro-sisting in installing the elevators in a bew

$ 134 (N.Y.Sup.) Where intestate, while as-
vide other instrumentalities than he has fur-
nished merely because of request of a servant; killed, neither his master nor the general con-

building, fell down an elevator shaft and was
and it is immaterial that there are better ap- tractor were bound to suspend work on the
pliances, so long as those provided are reason, building while the elevators were being in:
ably safe. - Santiago y; John E. Walsh Stevedore stalled, nor to anticipate possible missteps of
Co., 137 N. Y, S. 611,

momentary losses of balance on the part of
$ 107 (N.Y.Sup.) A master, operating a cop- employés.-Swenson v. Charles T. Wills, 137
per working plant and maintaining in the con- N. Y.'S. 516.
duct of his business tracks supplied with cars
designed for moving heavy bodies about the (D) Warning and Instructing Servant.
factory by the use of hand power, was not guil $ 150 (N.Y.Sup.) In an action for death of
ty of negligence at common law or under the a servant from falling down an elevator shaft
Employer's Liability Act for failing to supply in a new building in process of construction,
the cars with safety brakes merely because the defendants held not negligent in failing to pro-
tracks were constructed on a slightly descend- vide a signal to warn him of the approach of

Places for Work.

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