1178 and 85 New York State Reporter. An order in the municipal court, opening a de- to constitute an adjudication that the tr fault, must recite the grounds therefor.-Thorn- still continues.-English v. McIntyre all v. Turner (Sup.) 214. 697. A default will be opened when due to serious illness of defendant's wife, resulting two days later in her death.-Thornall v. Turner (Sup.) 214. § 8. Actions on judgments. court held demurrable under Code Civ. Proo Complaint in action on judgment of com 1913.-Underhill v. Phillips (Sup.) SL JUDICIAL NOTICE. An affidavit of merits is required in order to open a judgment taken by default, under General Rules of Practice, rule 23 (Greater New York Charter, § 1377).-Goldfeder v. Lincoln In civil actions, see “Evidence,” § 1. (Sup.) 215. Irregular entry of default judgment held no ground for setting it aside at suit of subsequent creditor.-Rothchild v. Link (Sup.) 253. On grant of motion by defendant to open default judgment for $10,000 in action for malicious prosecution, the requirement of a bond in payment of damages recovered was error.Glickman v. Loew (Sup.) 1078. § 5. Collateral attack. A proceeding to mortgage an infant's land held conclusive, in absence of fraud, when collaterally assailed.-Warren v. Union Bank of Rochester (Sup.) 27. § 6. Merger and bar of causes of action and defenses. The fact that a judgment goes by default does not detract from its effect as a bar.-Henriques v. Miriam Osborn Memorial Home (Sup.) 133: Same v. Yale University, Id. A judgment for possession of stock held no bar to an action for its depreciation while unlawfully detained.-Bracken v. Atlantic Trust Co. (Sup.) 1007. § 7. Conclusiveness of adjudication. If Code Civ. Proc. $ 1537, permitting heirs to maintain partition proceedings notwithstanding an apparent devise, on proof of the invalidity of the devise, conflicts with section 2653a, making a judgment establishing a will conclusive, it was repealed by the latter section.-Henriques v. Miriam Osborn Memorial Home (Sup.) 133; Same v. Yale University, Id. A judgment by default is as conclusive while it stands as any other.-Henriques v. Yale University (Sup.) 284. Under Code Civ. Proc. § 2653a, a judgment establishing a will is conclusive on all parties to the action. Henriques v. Miriam Osborn Memorial Home (Sup.) 133; Same v. Yale University, Id. JUDICIAL POWER. See "Constitutional Law," § 1. JUDICIAL SALES. Of property of infant, see "Guardian and Ward.“ Grounds for reference instead of trial by jury, se Taking case or question from jury at trial, see § 1. Right to trial by jury. Defendant in an action to determine claim for real estate held entitled to jury only if he alleges facts setting up an affirmative claim that he be adjudged to have estate in the premises.-King v. Ross (Sup.) 138. § 2. Competency of jurors. Under Code Cr. Proc. § 376, subd. 2, where a juror states that he has a decided opinion dence to overcome, and that he would be prejuas to defendant's guilt, which it will take evidiced, he should be excused.-People v. Wil marth (Sup.) 688. JUSTICES OF THE PEACE. 1. Civil jurisdiction and authority. Under Const. art. 6, § 18, as amended in 1869. it was held limitations of Laws 1881, c. 182. § 62, relating to a city justice, were expressly au thorized thereby.-Armstrong v. Kennedy (Co. Ct.) 509. § 2. Procedure in civil cases. Action by a trustee on appointment in a foreign state where the trust was created held | held valid, though not entered in the docket book A judgment by confession before a justice until after transcript had been filed in the county clerk's office. In re Thompson (Sup.) 384; Humphrey v. Rising, Id. Transcript of justice judgment filed with county clerk need not recite jurisdictional facts. In re Thompson (Sup.) 384; Humphrey v. Rising, Id. The affidavit on which a judgment by confession was based was held insufficient, and the judgment was consequently void.-Rowe v. Heiber (Sup.) 889. A judgment on appearance and a complaint not controverted cannot stand as a judgment by appearance and joinder of issue.-Rowe v. Heiber (Sup.) 889. There can be no judgment by default until after service of summons or joinder of issue.Rowe v. Heiber (Sup.) 889. business profits, are recoverable only where eviction prevented plaintiff from carrying on business anywhere.-Drago v. Mead (Sup.) 360. Notice to owner of apartment house that certain appliances are insecure puts him on inquiry as to the condition of all the appliances.-Rouillon v. Wilson (Sup.) 430. Where construction of tenement house is so peculiar as to render artificial light necessary to reasonable safety, it is the duty of the landlord to furnish the same.-Brugher v. Buchtenkirch (Sup.) 464. 8 4. Rent and advances. In action for rent, landlord's breach of independent covenant does not constitute defense.-Ely v. Spiero (Sup.) 124. Before action brought for rent, tenant cannot deduct a sum as damages for breach of independent covenant, and make valid tender of balance. An attachment before a justice does not extend to a debt owed by a sheriff to defendant-Ely v. Spiero (Sup.) 124. growing out of collection by sheriff under execution.-Umla v. Bennett (Sup.) 932. Failure to serve copies of inventory, under Code Civ. Proc. § 2910, held fatal to validity of judgment by attachment before a justice.-Umla v. Bennett (Sup.) 932. § 3. Review of proceedings. A verdict rendered in a justice's court, sup; ported by some evidence, should not be reversed in the county court, although it may draw a different conclusion from the facts.-Clark v. Daniels (Sup.) 177. In action on undertaking binding the surety to pay the amount of the judgment appealed from, plaintiff cannot recover a larger sum than such judgment, though a greater judgment was rendered.-Hennion v. Kipp (Sup.) 960. After the filing of a transcript, the county court can, on motion, cancel a judgment of a justice, where defendant was never served with process, although the officer's return shows proper service.-Daniels v. Southard (Co. Ct.) 1136. LACHES. See "Abatement and Revival." LANDLORD AND TENANT. § 1. Leases. Failure of water supply causing water famine held not to sustain conclusion of fraud in making the lease such as to justify its rescission.— Stein v. Rice (Sup.) 320. § 2. Terms for years. Where a tenant has a right to abandon premises because of untenantable condition, he must exercise option reasonably soon.-Stein v. Rice (Sup.) 320. 3. Premises, and enjoyment and use thereof. In action for rent on lease made between plaintiff "as attorney and agent for the owner, lessor," held, that defendant was estopped to deny existence of relation between himself and plaintiff as attorney.-Melcher v. Kreiser (Sup.) 249. Unlawful eviction held not a defense to action Rice (Sup.) 320. for rent payable before the eviction.-Stein v. Where rent is payable monthly in advance, landlord held entitled to recover whole month's rent, though tenant is dispossessed before expiration of the month before default.-Bernstein v. Heinemann (Sup.) 467. The presence on a renewal of a lease of the signature of a third person not mentioned in lease or renewal, without explanation, held not to render him liable for the rent.-Bernstein v. Heinemann (Sup.) 467. Where lessee makes deposit as security, the renewal of the lease held to renew the agreement as to the deposit.-Bernstein v. Heinemann (Sup.) 467. Evidence in action on lease held insufficient to sustain judgment against one of the defendants.-Bernstein v. Heinemann (Sup.) 467. Deposit by lessee with lessor as security held made for reimbursement, and not forfeiture in case of breach, and reviewable in action for rent.-Bernstein v. Heinemann (Sup.) 467. See "Public Lands." LANDS. LAW OF THE CASE. LEASES. In action by lessee for breach of contract to See "Landlord and Tenant." repair, failure to pay rent is no defense.-Drago v. Mead (Sup.) 360. In action against landlord for failure to re pair, special damages, measured by total loss of See "Wills." LEGACIES. LEGACY TAX. See "Taxation," § 6. and 85 New York State Reporter. LIBEL AND SLANDER. § 1. Words and acts actionable, and liability therefor. A publication stating that the editor of a newspaper used it to threaten and persecute persons, his practices being "utterly indefensible, infringing upon, it not actually crossing, the line of downright criminality," held libelous per se.Shanks v. Stumpf (Sup.) 154. A false publication that a practicing dentist had committed suicide held libelous per se. Cady v. Brooklyn Union Pub. Co. (Sup.) 198. An article giving the names of certain young ladies, and describing them as racing on a lake in a public park "for a beau with a handsome face,' held libelous.-McFadden v. Morning Journal Ass'n (Sup.) 275. § 2. Actions. It is a question of law whether a publication is libelous where there is no ambiguity about the words used.-Shanks v. Stumpf (Sup.) 154. Malice in publishing a libel may be found solely from the fact that it was made in reckless disregard of the rights of plaintiff or of others.--Shanks v. Stumpf (Sup.) 154. Smart money may be awarded where a libelous publication was made maliciously.-Shanks v. Stumpf (Sup.) 154. An answer denying that the libel was concerning plaintiff, and averring its truth, held not pleaded so as to permit evidence to be given showing it was true as to plaintiff, under Code Civ. Proc. §§ 507, 508.-Shanks v. Stumpf (Sup.) 154. An answer alleging the truth of the libel sued on, but not stating the facts showing it to be true, held insufficient.-Shanks v. Stumpf (Sup.) 154. In an action for libel in publishing statement concerning some unnamed individual, defendant cannot show its truth, where his answer, after denying that it was concerning plaintiff, averred its truth, but did not state that it was true as to plaintiff.-Shanks v. Stumpf (Sup.) 154. A libel of itself is competent evidence to show that it was published maliciously. - Shanks v. Stumpf (Sup.) 154. Malice in defendant in publishing a libel is not essential to recovery of actual damages, Cady v. Brooklyn Union Pub. Co. (Sup.) 198. Where the article furnished proof that the publication was made after knowledge of its falsity, it is sufficient, prima facie, to establish malice. McFadden v. Morning Journal Ass'n (Sup.) 275. Reference by plaintiff's counsel to letters referred to in the complaint held not error, where the complaint was not demurred to, or motion made to strike out such reference.-McFadden v. Morning Journal Ass'n (Sup.) 275. ilar matter, held plaintiff was properly allowed to testify as to their falsity.-McFadden Morning Journal Ass'n (Sup.) 275. 3. Criminal responsibility. The difference between libel and slander ari between civil and criminal libel pointed out.Cady v. Brooklyn Union Pub. Co. (Sup.) 198. LICENSES. For sale of intoxicating liquors, see "Intoxicating Liquors," § 1. LIENS. See, also, "Mechanics' Liens." Mortgage on "contracts and choses in ac tion" and all other property of corporation held to create an equitable lien on debts or accounts due mortgagor.-New York Security & Trust Co. v. Saratoga Gas & Electric Light Co. (Sup/ 749. LIFE INSURANCE. See "Insurance." LIMITATION OF ACTIONS. See, also, "Adverse Possession." § 1. Computation of period of limitation. The rule that, so long as a trust subsists, the right of cestui que trust cannot be barred by the time out of possession, held to apply to a creditor of an intestate.-Reynolds v. Etna Life Ins. Co. (Sup.) 446. Under Code Civ. Proc. § 410, the statute does not run against the right of a purchaser under contract with vendor to repurchase when the Vendee shall desire, until reasonable time gir en vendee to exercise his option.-Oaks v. Taylor (Sup.) 775. § 2. Part payment. In an action for services rendered, the bar of limitations is not removed by payments by defendant in ignorance of the fact that they were not payments in full.-Burdick v. Hicks (Sup.) 789.* § 3. Pleading, evidence, and province of court and jury. Limitations held ineffectual as to defendant who has continuously resided out of the state.Moloney v. Tilton (Sup.) 19. Where an account has run for more than six years, the burden is on plaintiff to show that the cause is excepted from the bar of limitations.-Burdick v. Hicks (Sup.) 789. LIMITATION OF LIABILITY. Of carrier, see "Carriers," § 1. Of owner of vessel, see "Shipping," § 3. LIQUOR SELLING. Where, in an action for libel, defendant put in evidence other newspapers, containing sim- See "Intoxicating Liquors.” LITTORAL RIGHTS. See "Navigable Waters," § 3. MACHINERY. Dangerous machinery, see "Negligence," § 1. MALICIOUS PROSECUTION. 1. Actions. The evidence should show institution of pro- Where evidence in action for malicious prose- It was error to let plaintiff prove that de- MANDAMUS. 1. Subjects and purposes of relief. Where professor in medical college, a private § 2. Jurisdiction, proceedings, and re- See "Mandamus." MANDATE. MARRIAGE. See "Divorce"; "Husband and Wife." MARRIED WOMEN. See "Husband and Wife." MASTER AND SERVANT. See, also, "Work and Labor." Employés of municipal corporations, see "Munici- Trade unions, see "Trade Unions." 1. The relation. A letter notifying employé engaged to work [§ 2. Master's liability for injuries to Evidence held insufficient to show that an em Evidence in action to recover for damages held An employé whose health was injured from Question as to negligence of street-car driver Driver of street car held not a fellow servant Evidence held sufficient to justify submission Where a company furnishes rules governing Where plaintiff's intestate was killed while § 3. Liabilities for injuries to third per- sons. Where owner is erecting a building under sep- Where injury from falling of brick from a Where plaintiff's intestate was killed by the MEASURES. See "Weights and Measures." MECHANICS' LIENS. § 1. Right to lien. The agreement of the owner of certain prem- and 85 New York State Reporter. repairs made by lessee, and to subject the prem- |§ 2. Construction and operation. § 2. Proceedings to perfect. Facts considered concerning repairs made That notice of lien filed before completion of § 3. Waiver. Right to lien is not waived by agreement that § 4. Enforcement. An action for foreclosure is governed by the Action to foreclose mechanic's lien cannot § 5. Indemnity against liens. As between sureties on bond to discharge a MERGER. A mortgage executed by a husband, and join. § 3. Rights and liabilities of parties. A mortgage of real estate may be extended Assignee of mortgage held to take subject to Where mortgagee agrees that a debt due mort- 5. Transfer of property mortgaged or § 6. Foreclosure by action. In action to foreclose by assignee, defense On foreclosure, a clause directing payment of Of cause of action in judgment, see "Judgment," part of the decree, which the referee was See "Infants." MINORS. MISREPRESENTATION. By insured, see "Insurance," § 2. MODIFICATION. Of injunction, see "Injunction," § 2. MONEY RECEIVED. bound to follow.-Seitz v. Schrell (Sup.) 608. A subsequent mortgagee, on foreclosure of a Service of process on the receiver of the mort- Stipulation to extend time for payment of Recovery of payment in general, see "Payment." Direction of verdict in civil actions, see “Trial,” $ 5. Dismissal or nonsuit on trial, see “Trial,” § 5. Striking out evidence, see "Trial," § 4. Where a motion is denied, to be renewed on |