Imágenes de páginas


See Mortgages.


1. Action to reform mortgage -- Priority of mechanics' liens -
Recording.- The right to have a mortgage containing no descrip-
tion of the real property intended to be covered thereby reformed
in that particular, is subject to the rights under a mechanic's
lien filed against the property after the mortgage was recorded.
Schwartz v. Rappaport, 227.

2. Purchase money Foreclosure - Infants Guardian ad
litem Laches.--After the commencement of an action to fore-
close a purchase money mortgage given by defendant, when she
was under eighteen years of age, upon a conveyance of real estate
to her by plaintiff, one to whom, between the commencement of the
action and the entry of judgment, defendant had conveyed the
premises under a trust agreement for her own benefit, took the
defendant to a reputable attorney who interposed in their behalf
an answer and the decision of the court on the trial of the issue
raised by the answer of said defendants was the basis of the judg-
ment of foreclosure and sale. Defendant having failed to inform
said attorney or any other of the interested parties that she was
not of age no guardian ad litem was appointed for her, and the
action proceeded as though she was an adult. She became of age
about a year after the judgment in foreclosure and nearly a year
and a half later brought an action to set aside the conveyance made
by her but the judgment therein rendered established that she was
indebted to her grantee in an amount which included the sum
advanced by him for the assignment to him of the foreclosure judg-
ment; that he held the premises in question for the benefit of plain-
tiff and that she was entitled to a reconveyance thereof upon pay-
ment by her of the sum so found due and owing, and it was specifi-
cally determined in and by said judgment that the mortgage in
question here was a valid obligation and that plaintiff, having elected
to retain the property, must pay its consideration. Held, that her
motion to vacate and set aside the judgment of foreclosure and for
leave to interpose an answer will be denied, and whether the failure
to appoint a guardian ad litem for her in the foreclosure action was
merely an irregularity or an error of fact not arising upon the trial,
was immaterial. The moving party having for nearly five years
after she, concededly, knew all the facts, engaged in constant effort
to claim the benefits and avoid the obligations of her contract, it
must be held that she, in attempting nearly seven years after she
became of age, to disaffirm the mortgage, did not act within à
reasonable time. Frankel v. Rubin, 566.

See Foreclosure.


Examination of third person in supplementary proceedings unau-
thorized Void Municipal Court judgment Municipal Court, city
of New York, Code, 00 6(7), 129; Rule 9.- Where upon granting
a motion in the Municipal Court to restore a cause marked “reserved
generally " to the trial calendar as required by rule 9, Municipal
Court Rules, no formal order is made and entered, the defendant,
by not appearing on the day an inquest was taken, is neither guilty
of neglect or omission and is not in default. The judgment so ren-
dered in the absence of the defendant was therefore void, and an
order for the examination of a third person in proceedings supple-
mentary to execution issued upon the transcript of said judgment,
which was filed a year and four days after the original entry of
judgment, is unauthorized and will be vacated and set aside, even
though a motion by defendant under section 6(7) of the Municipal
Court Code, to vacate and set aside the judgment as unauthorized
and void, was denied on the ground that under section 129 of said
Code the motion should have been made within a year after the
original entry of judgment. Stoneware Electric Stove Works V.
Barrett, 605.


See Municipal Court Code cited, ante, p. xlvii.

See Bridges; Canal Law; Injunctions.


1. Jurisdiction Seaman's wages Ships and shipping - Judg-
ments.- The Municipal Court of the city of New York has juris-
diction of an action brought by a seaman to recover wages, and an
order dismissing the complaint on the ground that the court had
not jurisdiction, and the judgment entered thereon, will be reversed
with leave to defendants to serve an answer. Danielsen v. Sigsbee,
Humphrey & Co., Inc., 184.

2. Summary proceedings — When order should be made before
justice before whom proceedings were instituted Statutes Laws
of 1920, chap. 942 - Final warrant in pending proceedings" can
only issue upon additional proof.- Orderly practice requires that a
motion to dismiss the petition in summary proceedings in the Munic-
ipal Court of the city of New York against a tenant as a holdover,
should be made before the justice before whom the proceeding was
instituted. While, therefore, pending procedings properly initiated
and sustained by proof sufficient to entitle the landlord to a final
warrant under the law as it existed at the time of the trial, may
proceed to the entry of the final order of removal, the final warrant
may not issue except upon additional proof. Upon the hearing in a
summary proceeding against a tenant as a holdover after the expira-
tion of his term, the landlord consented to give a lease for one
year from October 1, 1920, to each of the tenants in the building, at
such rental as the court should determine was reasonable, and, on the
theory that a final order was directed for the landlord, the testimony
was confined to matters relevant to the tenant's application for a
stay pursuant to chapter 137 of the Laws of 1920. The trial justice,
upon final submission of the case, and two days after chapter 942
of the Laws of 1920 went into effect, handed down an opinion in
which he found that the landlord was entitled to a rental from the
tenant herein in a certain sum per year. Held, that although the
petition did not allege the facts necessary to bring the landlord
within the exceptions mentioned in said chaptrr 942, the court was
without legal power to enter an order dismissing the proceedings,
and the order will be reversed and the motion to dismiss denied, with
costs of the motion. Levy v. Baum, 201.

3. Jurisdiction Negligence Ships and shipping Municipal
Court Code, Ø 6.— Under section 6 of the Municipal Court Code,
the Municipal Court has jurisdiction of an action to recover for
personal injuries where the injury complained of occurred upon a
vessel in tre navigable waters of the city of New York. La Rosa
v. Carter Weekes Stevedoring Co., 392.

See Appeal; Motions and Orders.


See Master and Servant.


Check given for gambling debt void - Penal Law, 993.- A
check given in payment of a gambling debt is utterly void under
section 993 of the Penal Law, and a judgment rendered in an action
thereon in favor of a holder in due course will be reversed and the
complaint dismissed, but with leave to appeal. Larschen v. Lantzes,


See Bridges; Certiorari; Constitutional Law; Injunctions;

Jurisdiction; Taxes.

See Highways.

See Adoption.


Option for sale of real estate When assignable - Lease Con-
sideration - Personal Property Law, 41 — Code Civ. Pro. $ 840.-
Though an option for the sale of real property, until accepted, is
not a contract for its sale, the opion is assignable under section 41
of the Personal Property Law unless the parties by mutual agree-
ment otherwise provide. The fact that the option was contained
in a lease constitutes a good consideration for it, and, where a modifi-
cation of the option reducing the purchase price and reciting that
it was made in consideration of the original lease and the sum of
one dollar, is under seal, a consideration, under section 840 of the
Code of Civil Procedure, is presumed. Lewis v. Bollinger, 221.

See Real Property.

Oral agreement -- Statute of Frauds Contracts Considera-
tion.-A consent to the cancellation of an oral agreement for a three-
year partnership, given by one of the parties at the request of the
other, is a sufficient consideration for his promise to pay a certain
sum for such consent, and an action lies to recover any balance due
thereon. Pinner v. Leder, 512.


See Injunctions.


See Table Consolidated Laws cited, ante, p. xliii; Sales.

When employer of injured employee liable for physician's services
- Section 13 of the Workmen's Compensation Law has reference
only to fees incurred by workman for medical treatment. The claim
of a physician for professional services rendered at the request of
defendant's superintendent, to several of defendant's employees, who
were injured in the course of their employment, is not a part of
the injured workmen's claim under the Workmen's Compensation
Law. The physician still retains the right to prosecute his claim
by an action, and where neither the rendition of the services nor the
reasonable value thereof is disputed, a judgment in favor of plaintiff
for the amount claimed will be affirmed. Feldstein v. Buick Motor
Co., 170.


1. When motion for judgment sustaining a demurrer to separate
defense granted Negligence --Award.- Where in an employee's
action for personal injuries alleged to have been caused by the
negligence of the defendant the answer pleads as a separate defense
that plaintiff made a claim for and accepted compensation from his
employer, but there is no allegation that any award was ever made
to plaintiff under the statute, a motion for judgment sustaining
a demurrer to the separate defense will be granted. Godfrey v.
Brooklyn Edison Co., 21.

2. Breach of covenant When covenant of quiet enjoyment not
dependent upon payment of rent.—A breach of covenant based upon
the personal acts of the covenantor is sufficiently alleged by nega-
tiving the covenant. Where an allegation of the complaint in an
action of covenant, that in the lease, which is neither set forth nor
a copy attached, defendants covenanted that plaintiff should peace-
ably and quietly occupy the premises, is followed by allegations that
plaintiff has not been permitted peaceably to occupy and enjoy the
possession of the premises, but on the contrary after the commence-
ment of the term and on dates stated “the defendants unlawfully
and without authority in law and with force, entered upon the same
and ejected this plaintiff therefrom and have ever since kept him
out of possession,” but there is nothing to show that defendants'
covenant for quiet enjoyment was dependent upon plaintiff's pay-
ment of rent, the complaint is good on demurrer, though it fails to
allege that plaintiff had paid the rent called for by the lease. If
the covenant to pay rent was not a condition precedent the covenant
for quiet enjoyment was independent, and the failure of the plain-
tiff to live up to his obligation is no answer to an action for
defendants' breach of their covenant. Laveites v. Gottlieb, 218.

3. When allegations as to employment do not show an agreement
based upon a sufficient consideration. - Allegations that plaintiff
agreed to continue in the employ of defendants as salesman during

PLEADING - Continued.
the season of 1918, to procure orders for furs, and that as compen-
sation and for his commissions defendants agreed to pay him on
all orders procured by him and accepted by them and for reorders
on the same," as follows," etc., do not show an agreement based on
a sufficient consideration. In an action for commissions alleged to
have been earned as salesman under the contract the plaintiff had
a verdict by direction of the court, but a second cause of action
pleaded in the complaint, for a wrongful discharge from employ-
ment, was dismissed. Held, that no error was committed either in
dismissing the second cause of action or in denying plaintiff's motion
to amend the first cause of action in order to increase the demand
for damages: Wallach v. Mendelson, 499.

When personal and not in trust -- Legacies Executors.- A
power vested in executors to sell real estate devised to the husband
of the testatrix, subject to the payment of legacies, at such times
and in such manner as they may deem advantageous, is personal,
confidential and discretionary and there being no trust to sell the
property for the payment of legacies, which must be paid by the
devisee, an action to have a lien impressed upon the realty to the
extent of the legacies will not lie. Clayton v. Kingston, 631.

See Claims.

When limitation of agent's authority should be unequivocal -
Life insurance Morris Plan" - Interlocking companies — AC-
ceptance of overdue premiums Waiver.- Where an agent is in
complete control of a business a limitation upon his authority should
be unequivocal. In an action brought by the beneficiary under a
policy of life insurance issued by “ The Morris Plan Insurance
Society" in connection with a loan of money by the “Morris Plan
Company” the defense was that the policy had lapsed for non-
payment of premiums and had not been reinstated. It was admitted,
however, that prior to the death of the assured, all premiums had
been paid in full to the “ Company.” Held, that whether the policy
lapsed or not, plaintiff must prevail if the “ Company” had power
to bind the “Society" and reinstate the policy by its acceptance of
overdue premiums. Where from the record on appeal by the
defendant from a judgment in favor of plaintiff entered on a verdict,
it appears that the defendant “ Society" in truth and in fact was
nothing more nor less than an adjunct or feeder or instrumentality
of the “Company" and the evidence discloses that these inter-
locking companies in conducting their joint and interlocking business
placed in each other a most explicit trust and that only in the most
technical sense can the Company be regarded as the Society's agent,
yet it must be held that the “Company” had authority to waive
the lapse in the payment of premiums, if lapse there was, and the
judgment appealed from will be affirmed. Fogg v. Morris Plan
Insurance Society, 491.


See Contracts; Landlord and Tenant.

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