and 121 New York State Reporter INTERLOCUTORY INJUNCTION. See "Injunction," § 1. INTERLOCUTORY JUDGMENT. INTERNATIONAL LAW. See "Aliens." INTERPLEADER. § 1. Right to interpleader. Applicant for order of interpleader, having § 4. Offenses. Bar partitioned off from pavilion on Sundays held not to render keeping pavilion open on Sunday a violation of Laws 1897, p. 233. c. 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 certificates to sell liquor to guests on Sunday.In re Cullinan (Sup.) 660. See "Patents." INVENTION. ISSUES. 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 application 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." INTESTACY.. See "Descent and Distribution." INTOXICATING LIQUORS. § 1. Local option. Inadvertent errors of town clerk held insufficient to justify resubmission of local option questions, under Liquor Tax Law, Laws 1895, 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. JEOPARDY. Former jeopardy bar to prosecution, see "Criminal Law," § 2. JOINDER. Of causes of action, see "Action," § 1. JOINT ADVENTURES. An arrangement for pool and sale of stock held to create a joint interest, imposing on parties fiduciary obligations of partners.-Spier v. Hyde (Sup.) 285. Arrangement for the pooling and sale of corporate stock held to give plaintiff a direct interest as owner in 250 shares, with contingent interest in the whole, while defendants had interest in the remainder, subject to plaintiff's contingent interest.-Spier v. Hyde (Sup.) 285. 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 Industrial Sav. Bank (Sup.) 54. Facts held to show that owner of a deposit in owner of the account.-Farrelly v. Emigrant loa savings bank intended to make another joint dustrial Sav. Bank (Sup.) 54. Deed of tenants in common to one of the tenants and a third person as joint tenants held to create a joint tenancy.-Colson v. Baker (Co. Ct.) 238. See "Courts." JUDGES. Remarks and conduct at trial, see "Criminal 1. Appointment, qualification, and tenure. Under Const. art. 6, § 4, a vacancy occurring in office of Justice of the Supreme Court on August 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 application of the law to a case before a city magistrate held insufficient to justify his removal on the ground that he was corrupt or incompetent. In re Baker (Sup.) 1022. 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, barthe second action. (Sup.) 400. A petition for the removal of a police magistrate for the alleged wrongful discharge of certain persons charged with having policy numbers in their possession held insufficient.-ring In re Baker (Sup.) 1022. JUDGMENT. 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. Interurban St. Ry. Co. (Sup.) 405. Action of court in refusing to open default held proper.-Audit Co. of New York v. McNaught (Sup.) 542. $ 2. On trial of issues. 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 express 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 v. Raubitschek (Sup.) 503. Where the record of a judgment does not show against whom it was rendered, there is no presumption that it was against the defendant.-Goldberg v. Markowitz (Sup.) 1045. A judgment held not to raise a presumption - Maeder v. Wexler Judgment for defendant on a building contract, because there was not complete performance, held not a bar to an action for the reasonable 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 parties.-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. Maxwell (Sup.) 1077. § 6. Suspension, enforcement, and revival. Supreme Court has power temporarily to suspend operation of its judgments.-Sponenburgh v. City of Gloversville (Sup.) 602. § 7. Pleading and evidence of judgment as estoppel or defense. A reply held not to deny that labor and material, the reasonable value of which is sued for, was not embraced in a former action on a contract.-Maeder v. Wexler (Sup.) 400. In an action on a judgment of a court of another 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. JUDICIAL SALES. that a certain defendant appeared.-Goldberg Of property of decedent, see "Executors and v. Markowitz (Sup.) 1045. Administrators," § 7. 87 N.Y.S.-75 JURISDICTION. and 121 New York State Reporter A purchaser of real estate "subject to existing tenancies," who found tenants in actual Want of, ground for dismissal of action, see possession, held conclusively presumed to have "Dismissal and Nonsuit," § 2. Jurisdiction of particular actions or proceedings. Against personal representatives, see ascertained the nature, extent, and terms of the existing tenancies.-Anderson v. Connor (Sup.) 449. Code Civ. Proc. § 369, relative to adverse possession under written instrument, has no "Execu-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. Grounds for reference instead of trial by jury, see "Reference," § 1. Instructions in civil actions, see "Trial," § 6. Instructions in criminal prosecutions, see "Criminal 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 therefor, such application was in time, under Municipal Court Act, Laws 1902, 1557, c. 580, § 231.-Levy v. Roossin (Sup.) 707. KNOWLEDGE. Of defects, see "Master and Servant," § 4. LABOR UNIONS. See "Trade Unions." 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 leased.-Ducker v. Del Genovese (Sup.) 889. § 2. Landlord's title and reversion. A purchaser of real estate "subject to existing" tenancies, 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. 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 disclaimer or surrender and retaking be shown. Miller v. Warren (Sup.) 1011. a 3. Terms for years. Giving by landlord to a city of a license similar to one given by tenant to landlord held by tenant.-Pierson v. Hughes (Sup.) 223. not an acceptance of premises then abandoned 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 constitute an eviction.-Haas v. Ketcham (Sup) 411. Landlord of a building held to have owed 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 railing, 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 plaintiff's husband hold 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. LARCENY. A lease held not to obligate the lessee to re- See "Receiving Stolen Goods." build the leased buildings after their collapse. -Ducker v. Del Genovese (Sup.) 889. A landlord is not liable for failing to give LAW OF THE CASE. a tenant notice of a latent structural defect, See "Appeal," § 6. 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. Rent 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. LEASES. See "Landlord and Tenant." Authority of agent, see "Principal and Agent," By corporate officer, see "Corporations," § 3. See "Wills." LEGACY TAX. A tenant's occupation of a part of the premises, 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 recover rent under the lease.-Sullivan v. Schmitt (Sup.) 714. LEGITIMACY. See "Bastards," § 1. A landlord's inability to deliver possession of For a part of the premises by reason of an unexpired 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 tenant 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 entitled to recover rent from defaulting tenant be fore expiration of term.-Harding v. Austin (Sup.) 887. 6. Re-entry and recovery of possession by landlord. An order in favor of the landlord in summary dispossession proceedings held not to have been entered on the tenant's default, so as to authorize 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 issuance.-Maneely v. Mayers (Sup.) 471. Orders of a municipal court, setting aside an order for possession on a tenant's alleged default in dispossession proceedings, recalling a dispossession warrant, and refusing to vacate the landlord's subsequent default, held not appealable, under Municipal Court Act, Laws 1902, pp. 1562, 1563, c. 580, §§ 253-257.Maneely v. Mayers (Sup.) 471. LETTERS PATENT. inventions, see "Patents." LIBEL AND SLANDER.. 1. 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. that he was accustomed to live with an adopted Alleged slanderous publications of plaintiff daughter held not actionable per se.-Cassavoy v. Pattison (Sup.) 658. education, that he is poverty stricken on acPublication, concerning one of extraordinary 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 slanderous 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. Where language of publication is libelous per se, the court may disregard innuendoes improperly drawn, and submit the case to the jury. Martin v. Press Pub. Co. (Sup.) 859. A complaint in an action for libel held insufficient for a failure to allege special damages, when the matter refers to plaintiff's property. -Maglio v. New York Herald Co. (Sup.) 927. LICENSES. Effect of receivership, see "Receivers," § 2. For making, use, or sale of patented articles, see "Patents," § 1. Under Code Civ. Proc. §§ 365, 375, action by infant beneficiaries of trust created in executors held barred 20 years after void deed by executors and 10 years after infants reach majority.-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. Raymond (Sup.) 931. period provided by Code, §§ 380, 383, it must be Where Sunday is the last day of a limitation included in reckoning the period, notwithstanding Laws 1894, p. 910, c. 447, § 27.-Benoit v. New York Cent. & H. R. R. Co. (Sup.) 951. included in reckoning period of limitation, unDay on which cause of action accrued must be 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 Civ. Proc. $ 401, the running of limitations is suspended during the time of continuous absence of over a year's duration from the state. For sale of intoxicating liquors, see "Intoxi--Miller v. Warren (Sup.) 1011. cating Liquors," § 2. Injuries to licensees, see "Railroads." § 2. Street railroad licenses, see "Street Railroads," § 1. LIENS. Effect of proceedings in bankruptcy, see "Bankruptcy," § 2. Particular classes of liens. See "Mechanics' Liens." Pledge, see "Pledges." LIFE INSURANCE. See "Insurance." LIMITATION OF ACTIONS. See "Adverse Possession." Particular actions or proceedings. Against personal representatives, see "Executors and Administrators," § 8. For possession of pledge, see "Pledges." Proceedings to modify or vacate order assessing 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 limitation. Period in which limitations run against executors as trustees should be counted in determining 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. 3. Pleading, evidence, trial, and review. 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. 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, notwithstanding 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 cancellation of a notice of lis pendens after final judgment in the action.-Jarvis v. American Forcite Powder Mfg. Co. (Sup.) 742. LOANS. By pawnbroker, see "Pawnbrokers.” LOCAL OPTION. Traffic in intoxicating liquors, see "Intoxicating Liquors," § 1. |