claim that defendant had not performed the | contract, deducted a sum of money from the amount due the surety on other transactions, the act of the government constituted a liability within the terms of the indemnity contract. -Emmet v. Sanitary Water Still Co., 146 N. Y. S. 343. § 13 (N.Y.Sup.) Where the tenant as well as the landlord knew of the dangerous condition of the elevator shaft which was not partitioned from the light shaft and of the method of operating the elevator, held, that the parties were in pari delicto, so that the tenant could not recover from the landlord the amount the tenant was required to pay for injuries to its employé from the negligent condition of the elevator shaft.-Larkin Co. v. Terminal Warehouse Co., 146 N. Y. S. 380. § 81 (N.Y.) It is not error, but is many times necessary or desirable as a matter of description, to give in an indictment the several names by which the person indicted is known.-People v. Seidenshner, 104 N. E. 420, 210 N. Y. 341. $ 121 (N.Y.Sp.Sess.) Upon information under Penal Law, § 421, making it a misdemeanor to publish untrue and misleading advertisements, averring that a statement that the advertised article was a scientific combination of beneficial remedies and harmless, was calculated to mislead and that it was not harmless, held, that defendant was not entitled to a bill of particulars. -People v. Dr. Kelly Medical Co., 146 N. Y. S. 856. VII. MOTION TO QUASH OR DISMISS, from the circumstances.-People v. Ansteth, 146 N. Y. S. 73. Under Code Crim. Proc. § 399, where the only evidence before the grand jury tending to show a defendant's knowledge that goods received by him were stolen was that of an accomplice, the indictment will be dismissed.-Id. The evidence of an accomplice and the corrobative evidence held sufficient to support an indictment for criminally receiving stolen goods, so as to prevent a dismissal of the indictment for insufficency of the evidence before the grand jury.-Id. INFANTS. See Adoption; Fences, § 24; Intoxicating, Liquors, § 66; Negligence, §§ 122, 136. INFORMATION. See Indictment and Information. INHERITANCE. See Descent and Distribution. INJUNCTION. See Easements, § 61. I. NATURE AND GROUNDS IN GEN ERAL. (B) Grounds of Relief. the holding of a special meeting of corporate di $ 12 (N.Y.Sup.) Where one suing to restrain rectors because the call therefor was not properly issued merely sues individually, and alleges that he is president of the association and the holder of some certificates of indebtedness, but does not show that any thing proposed will inhe cannot maintain the action.-Gilleran v. jure the certificate holders or the association, Springfield, L. I., Cemetery Society, 146 N. Y. S. 828. II. SUBJECTS OF PROTECTION AND (C) Contracts. § 58 (N.Y.Sup.) An agreement not to rent property to competitors of the adjoining owner may be enforced by injunction, though it provides that the promisor shall "be liable in damages and breach of contract" in case of its vio$137 (N.Y.Sup.) A motion to quash the in-lation.-Feinstein v. Jacobson, 146 N. Y. S. 525. dictment, on the ground that it was found solely upon the evidence of accomplice, was properly denied, where that fact did not appear from the face of the indictment, though all of the witnesses indorsed thereon were afterwards shown to be accomplices.-People v. Sweeney, 146 N. Y. S. 637. § 59 (N.Y.Sup.) In action for accounting under contract giving exclusive sales agency to plaintiff, which defendant broke and refused to renew as agreed, plaintiff held not entitled to an injunction pendente lite restraining defendant from making sales itself.-Redican v. Interchangeable Magnetic Sign Co., 146 N. Y. S. 596. $144 (N.Y.Sup.) Under Code Crim. Proc. 88 258, 389, unless the evidence before the grand jury is sufficient, if unexplained or uncontradicted, to satisfy it beyond a reasonable doubt that defendants received the stolen goods knowing that they had been stolen, the indictment may be dismissed, but absolute knowledge need not be proved, and knowledge may be inferred For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER § 62 (N.Y.) Where the owners of two city blocks entered into an agreement that the building erected should be set back from the street five feet for courtyards, the purpose being to make them desirable for residence, and later, because of the encroachment of business, the lots in time became wholly unsuitable for residences, held, that a court of equity would not restrain N. Y. 243. In determining whether a court of equity will compel observance of a covenant restricting the use and occupation of land, each case must depend upon its own facts, and it may be enforced against one person, while as to another violating the same covenant it will not.-Id. § 62 (N. Y. Sup.) Mandatory injunction is properly granted against one who, in spite of repeated warnings, and in violation of restrictive covenants of his deed, builds his house nearer the street than the other houses in the block.-Lyons v. Edmonds, 146 N. Y. S. 277. (E) Public Officers and Boards and Municipalities. $75 (N.Y.Sup.) The determination whether a prize fighter, who applied to the State Athletic Commission for permission to engage in a boxing contest, was capable of safely competing in such contest because of his age, physical condition, etc., was primarily for the State Athletic Commission, and the enforcement of its order, prohibiting the contest, will not be enjoined.Fitzsimmons v. New York State Athletic Commission, 146 N. Y. S. 117. III. ACTIONS FOR INJUNCTIONS. § 113 (N.Y.Sup.) One who stands by and suffers another to make large outlays cannot have injunctive relief.-Thompson v. Diller, 146 N. Y. S. 438. Injunctive relief against breach of a covenant in a deed held not barred by laches.-Id. $126 (N.Y.Sup.) A lot owner who breaks a restrictive building covenant in a deed made for the common advantage of all lot owners in a common tract has the burden of proving laches to defeat the right of an adjoining lot owner to injunctive relief against a breach of the covenant.-Thompson v. Diller, 146 N. Y. S. 438. IN PAIS. INSANE PERSONS. See Equity, § 76; Evidence, § 63. V. PROPERTY AND CONVEYANCES. § 64 (N.Y.Sup.) Before an allowance may be granted from an incompetent's estate to one to whom incompetent owes no duty of support, it must be shown that incompetent, if sane, would assume the duty; and a real need or ne cessity of applicant must be shown.-In re Kernochan, 146 N. Y. S. 1026. The fees of an attorney for an unsuccessful competent applicant of independent means for an allowance from an incompetent's estate will not be allowed from the estate, but those of the counsel for the incompetent's committee will be so allowed.-Id. See INSOLVENCY. Assignments for Benefit of Creditors; Bankruptcy; Banks and Banking, § 80; Contracts, $310; Corporations, § 568; Executors and Administrators, & 416; States, S 110; Subrogation, §§ 33, 35. III. ASSIGNMENT, ADMINISTRATION, AND DISTRIBUTION OF IN- (F) Claims Against and Distribution of § 118 (N.Y.Sup.) A preference right as a creditor is not waived by filing a claim as a creditor and acceptance of a dividend thereon without complaint or protest.-United States Fideli ty & Guaranty Co. v. Borough Bank of Brooklyn, 146 N. Y. S. 870. INSPECTION. INSTRUCTIONS. $129 (N.Y.Sup.) Where facts occurring after IV. PRELIMINARY AND INTERLOCU- (A) Grounds and Proceedings to Procure. INNOCENCE. See Evidence, § 60. To jury, see Criminal Law, §§ 786-834; Trial, §§ 234-260. INSURANCE. See Contracts, §§ 131, 138; Corporations, $$ 425, 432; Criminal Law, § 1073; Limitation of Actions, § 96. III. INSURANCE AGENTS AND BROKERS. (A) Agency for Insurer. § 84 (N.Y.Sup.) Plaintiff having secured liability insurance under contract with defendant's agents, and the agency having been changed and the policies canceled and new ones issued for the balance of the term on the application of the insured, held not entitled to recover commissions on the new policies.-Degnan v. General Accident, Fire & Life Assur. Corporation, Limited, of Perth, Scotland, 146 N. Y. S. 360. V. THE CONTRACT IN GENERAL. company consented to the reinstatement of a life (A) Nature, Requisites, and Validity. policy after lapse in payment of premiums, knowing that the insured was hopelessly ill, § 143 (N.Y.Sup.) Plaintiff, who took out a such knowledge was chargeable to the company policy upon the life of her husband, held enti- and it cannot defeat recovery on the ground tled to have it reformed so that she would re- that a statement signed by the insured recited ceive the proceeds whether her husband lived that he was in good health.-McCormack v. Seto the maturity of the policy or not; the issu-curity Mutual Life Ins. Co., 146 N. Y. S. 613. ance of an insurance policy different from that ordered being a constructive fraud.-Ulman v. XIII. EXTENT OF LOSS AND LIABILNewman, 146 N. Y. S. 696. Where it was the intention of a husband and wife that an endowment policy applied for by the husband should be payable to the wife at all events, and the insurer through mistake made the policy payable to the husband in case he survived until its maturity, a reformation of the instrument will be granted at the suit of the wife.-Id. ITY OF INSURER. (B) Insurance of Property and Titles. $5082 [New, vol. 4 Key-No. Series] (N. Y.Sup.) Where a guaranty company issued a bond to secure an employer against defalcations by his employé, and renewed the bond for several years, the bond and each renewal constituted different liabilities, rendering the insurer liable up to the limit fixed by the bond for the employé's defalcation each year.-Alex, Campbell Milk Co. v. United States Fidelity & Guaranty Co., 146 N. Y. S. 92. (C) Guaranty and Indemnity Insurance. to defend suit against insured instead of settling 8513 (N.Y.) Liability insurer which elected for the amount to which its liability was limited, and, after a judgment for four times this amount, refused to appeal or to pay the stipulated indemnity, except upon satisfaction of the judgment, held liable for insured's expenses in prosecuting an appeal resulting in a reversal.-Brassil v. Maryland Casualty Co., 104 N. E. 622, 210 N. Y. 235. XIX. REINSURANCE. § 182 (N.Y.Sup.) The clause, "Provided that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee shall, on demand, pay the same," being a part of the mortgagee clause of the New York Standard policy, held a condition and not a covenant, and hence the mortgagee was not li-pany issued successive accident policies, each able for the premiums.-Coykendall v. Blackmer, 146 N. Y. S. 631. X. FORFEITURE OF POLICY FOR BREACH OF PROMISSORY WARRANTY, COVENANT, OR CONDITION SUBSEQUENT. (E) Nonpayment of Premiums or Assessments. § 354 (N.Y.Sup.) A notice that a premium was due held insufficient under Insurance Law, § 92, to warrant a forfeiture, because incumbered with suggestions and surplus advice.-McCormack v. Security Mutual Life Ins. Co., 146 N. Y. S. 613. § 365 (N.Y.Sup.) Where a policy, containing a clause providing that it should be incontestable after one year, was re-instated after forfeiture for nonpayment of premiums, held that the reinstatement related back to the time of the forfeiture, and the reinstated policy became incontestable within one year from that date. McCormack v. Security Mutual Life Ins. Co., 146 N. Y. S. 613. XI. ESTOPPEL, WAIVER. OR AGREE MENTS AFFECTING RIGHT TO AVOID OR FORFEIT POLICY. $378 (N.Y.Sup.) Where the field superintendent and local cashier of the defendant insurance § 679 (N.Y.Sup.) Where an insurance com for one year and each based upon a new application, and a reinsurance company executed separate contracts for each of the policies each based upon the policy and application, each reinsurance contract was a new and distinct contract.-Casualty Co. of America v. United States Casualty Co., 146 N. Y. S. 957. § 686 (N.Y.Sup.) In an action upon a reinsurance contract, evidence held not to sustain a finding that a clause exempting the reinsured from liability for accidental injuries occurring to the insured while on a trip to Alaska was omitted from the reinsurance contract by mistake.-Casualty Co. of America v. United States Casualty Co., 146 N. Y. S. 957. XX. MUTUAL BENEFIT INSURANCE. (A) Corporations and Associations. benefit society held not reviewable by courts ex§ 694 (N.Y.) Proceeding to expel member of cept to determine whether the member was tried according to the law of the land.-Wilcox v. Supreme Council of Royal Arcanum, 104 N. E. 624, 210 N. Y. 370. subject to attack for disqualification of trial Expulsion of member of benefit society held committee in action on certificate; there being no method of direct review.-Id. On trial of member of benefit insurance society for making defamatory charges against Su For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER preme Council and its officers, the truth of which charges was put in issue, members of the Supreme Council held disqualified to sit as members of the trial committee, and his expulsion was void where they did sit.-Id. (E) Beneficiaries and Benefits. § 788 (N.Y.Sup.) "Suicide," as used in a suicide clause in a benefit certificate, implies a mental appreciation of the act of self-killing which an insane person could not have.-Benard v. Protected Home Circle, 146 N. Y. S. 232. A clause of a mutual benefit certificate exempting from liability for death from suicide would not be applicable if insured took poison through mistake.-Id. (F) Actions for Benefits. § 817 (N.Y.Sup.) The defense of self-destruction is an affirmative defense, the burden of proving which rests on the association in an action on a mutual benefit certificate, and hence it must show that poison taken by insured was not taken by mistake.-Benard v. Protected Home Circle, 146 N. Y. S. 232. § 825 (N.Y.Sup.) Evidence in an action on a mutual benefit certificate held to make it a jury question whether insured took poison by mistake or for suicidal purposes.-Benard v. Protected Home Circle, 146 N. Y. S. 232. INTENT. See Criminal Law, § 59; Domicile, §§ 4, 9, 10; Landlord and Tenant, § 37; Wills, § 682. INTEREST. See Banks and Banking, § 317; Contracts, & 159; Corporations, § 568; Executors and Administrators, § 416; Usury; Wills, § 734. INTESTACY. See Descent and Distribution. INTOXICATING LIQUORS. See Constitutional Law, §§ 250, 271. II. CONSTITUTIONALITY OF ACTS AND ORDINANCES. §19 (N.Y.Sup.) No rights of a liquor dealer under the federal Constitution were impaired, because his license may be forfeited after a conviction, upon which sentence is suspended, under Liquor Tax Law, § 2, from which conviction he has no right of appeal, although a liquor dealer outside of Greater New York has a right of appeal by Code Cr. Proc. § 750, as amended by Laws 1907, c. 685, under similar circumstances.-Dornhoefer v. Farley, 146 N. Y. S. 891. IV. LICENSES AND TAXES. 876 (N.Y.Sup.) Liquor Tax Law, § 27, subd. 1, providing for a writ of certiorari to be issued by a county "judge," gives no authority to the county "court" to issue such a writ.-People ex rel. Cecere v. Slocum, 146 N. Y. S. 556. § 106 (N.Y.Sup.) Where there was direct communication between respondent's barroom and a hallway and staircase leading to hotel rooms which were used for immoral purposes, in violation of Liquor Tax Law, § 30, subd. "e," his liquor tax certificate was subject to cancella. tion, without reference to whether respondent was interested in the conduct of the hotel.-In re Farley, 146 N. Y. S. 473. § 108 (N.Y.Sup.) Where proceedings were instituted to cancel a liquor tax certificate be cause respondent sold liquor on Sunday, it was error to refuse to try such issue because the certificate would expire by limitations on the day succeeding the trial.-In re Farley, 146 N. Y. S. 473. VIII. CRIMINAL PROSECUTIONS. § 242 (N.Y.Sup.) The state may prescribe as a condition of the right to sell liquor that such right shall be forfeited by a conviction for the violation of the liquor tax law, even though sentence is suspended, and thereby the right of appeal be denied.-Dornhoefer v. Farley, 146 N. Y. S. 891. IX. SEARCHES, SEIZURES, AND FORFEITURES. $250 (N.Y.Co.Ct.) In proceedings by the state commissioner of excise for the seizure and forfeiture of liquors under Liquor Tax Law, § 33, liquors seized were kept, stored, or deposited the burden was on plaintiff to prove that the for unlawful distribution.-Farley v. Certain Liquors Seized, 146 N. Y. S. 1003. Presumptions, arising under Liquor Tax Law, § 33, subd. 4, from possession of United States retail liquor dealers' license, and from storing of liquors, and from recent sale of liquor at the premises, held insufficient to authorize a finding, in proceedings for seizure and forfeiture of liquors, that the liquors seized were kept for unlawful sale.-Id. $ 254 (N.Y.Co.Ct.) A claimant, prevailing in proceedings for seizure and forfeiture of liquors under Liquor Tax Law, § 33, held entitled to costs.-Farley v. Certain Liquors Seized, 146 N. Y. S. 1003. § 255 (N.Y.Co.Ct.) Where, in proceedings for seizure and forfeiture of liquors under Liquor Tax Law, § 33, the evidence was insufficient to authorize a finding that the liquors seized were being kept for an unlawful sale, claimant was entitled, under Laws 1913, c. 614, amending Liquor Tax Law, § 33, to judgment for delivery to him of the liquors seized.-Farley v. Certain Liquors Seized, 146 N. Y. S. 1003. JEOPARDY. § 66 (N.Y.Sup.) Within Liquor Tax Law, § 15, subd. 8 (Laws 1910, c. 503, § 2), requiring, with an application for a liquor tax certificate, See Criminal Law, §§ 168, 173. the consents of the owners of at least two-thirds of the dwellings, within 300 feet of the property on which the traffic is to be carried on, consent can be given by infant owners.-In re Farley, 146 N. Y. S. 291. JOINT ADVENTURES. §4 (N.Y.Sup.) Where a contract between defendants for the production of a play provided that they were to produce the play, not as part-law given by the Court of Appeals is applied.ners, but with a mere sharing of the profits Davis v. Seaward, 146 N. Y. S. 981. and losses, there was no relation between them which would prevent one of them from assigning a portion of his interest in the profits to another. Selwyn & Co. v. Waller, 146 N. Y. S. 7. See Judgment, § 9. JUDGES. I. APPOINTMENT, QUALIFICATION, $ (N.Y.Sup.) In proceedings by the Bar Association of New York City against a justice of the Municipal Court, evidence held to sustain a finding of the official referee that respondent was not guilty of any violation of his duty as a judicial officer, and that his conduct and temperament generally did not unfit him for the office. In re Snitken, 146 N. Y. S. 560. IV. DISQUALIFICATION TO ACT. $45 (N.Y.Sup.) That a judge was related within the sixth degree to a legatee under the wife's will held not to disqualify him under Judiciary Law, § 15, from sitting in an action where the sole issue was whether the wife had left any of the property which she received from her husband and the validity or construction of her will was not involved.-Davis v. Seaward, 146 N. Y. S. 981. $47 (N.Y.Sup.) In an action involving only whether at a wife's death any property remained which she took under her husband's will, providing that it should go to plaintiff, a judge of the Appellate Division was not disqualified under Judiciary Law, § 15, merely because he had acted as attorney for the widow in the probate of her husband's will and her accounting as executrix, and at the execution of her will.Davis v. Seaward, 146 N. Y. S. 981. The provision of Judiciary Law, § 15, disqualifying a judge from sitting in any cause or matter in which he has been counsel cannot be enlarged by construction.-Id. That the services were performed by clerks or other members of the firm of which a judge was a member will not prevent him from being disqualified, under Judiciary Law, § 15, from sitting in a case in relation to which the firm has performed legal services.-Id. JUDGMENT. See Adoption, § 16; Appeal; Contempt, § 20; Corporations, §§ 320, 640; Costs, 9; Courts, $$ 189, 190; Execution; Executors and Administrators, § 241; Intoxicating Liquors, 255; Mortgages, § 559; Wills, §§ 431, 434. I. NATURE AND ESSENTIALS IN $9 (N.Y.Sup.) That the judgment of the Appellate Division is void because of disqualification of a judge will not invalidate a decision of the Court of Appeals, or subsequent proceedings in the Supreme Court upon a retrial, where the III. ON CONSENT, OFFER, OR AD MISSION. 890 (N.Y.Sup.) A consent judgment entered under Municipal Court Act, 1, subd. 16, held improperly set aside on the ground that defendant's attorney did not understand the amount which was claimed.-Federal Sign System (Electric) v. Pescia, 146 N. Y. S. 311. IV. BY DEFAULT. (A) Requisites and Validity. defendant's default will be reversed, where the 126 (N.Y.Sup.) A judgment for plaintiff on testimony on the inquest did not disclose a of defendant's motion to open its default.-Silcause of action, without reference to the merits verman v. Charles Jacobs Co., 146 N. Y. S. 1067. (B) Opening or Setting Aside Default. $153 (N.Y.Sup.) Under Code Civ. Proc. § 1282, providing for the setting aside of judgments for irregularity within a year, and sections 420, 1212, and 1213, providing for the entry of certain default judgments without application to the court, held, that the clerk's entry of a default judgment on a complaint stating one cause of action on contract, and one in tort, was a nullity and not an irregularity, so that it would be vacated after the expiration of a year.-Bouker Contracting Co. v. Neale, 146 N. Y. S. 894. VIII. AMENDMENT, CORRECTION, § 307 (N.Y.Sup.) In an action by a subcontractor to foreclose a mechanic's lien, where the contractor's assignee, a bank, was made a party, and at the trial there was evidence that the bank had assigned a portion of the claim, and the judgment failed to expressly provide which of the lienors was entitled to the small balance which remained, such failure could be corrected by motion.-Coleman & Krause v. Security Bank of New York, 146 N. Y. S. 622. XI. COLLATERAL ATTACK. $506 (N.Y.Sup.) One sued on a judgment cannot impeach it collaterally by alleging that it is too large.-Schwabe v. Herzog, 146 N. Y. S. 644. $517 (N.Y.Sup.) One sued on a judgment cannot impeach it collaterally by setting up a counterclaim involving the re-examination of transactions settled by the judgment.-Schwabe v. Herzog, 146 N. Y. S. 644. XIII. MERGER AND BAR OF CAUSES For cases in Dec. Dig. & Am. Dig. Key No Series & Indexes see same topic and section ($) NUMBER |