JUDGMENT Continued.

leave of court is necessary to authorize a defendant to bring an independent
action to set off a judgment against a pending action.

It seems, that a defendant may counterclaim a judgment in his favor as a set-off
to extinguish or reduce the recovery in a pending action; but in such case there
is a risk of extinguishing the judgment even though the plaintiff fail to estab-
lish a cause of action unless the record shows that the plaintiff's cause of action
is not sustained. The same would be true if the plaintiff establishes a cause of
action for less than the amount of the defendant's judgment, for such is the rule
applicable to set-offs. Rando v. National Park Bank, 190.

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2. Res adjudicata burden of proof — question for court. presumption.
Where a cause of action, matter in defense or counterclaim, is once litigated on
the merits in a court of competent jurisdiction, whether decided properly or
not, the judgment is a bar.

Whether or no a matter is res adjudicata is to be decided from the pleadings
and judgment. If it cannot be so determined, it must be determined from the
record of proceedings at trial or by parol evidence.

Where a defendant pleads a prior judgment on another account as a bar,
because the matters involved in the present action were therein set up as a coun-
terclaim and the question as to whether the counterclaim was litigated must be
determined dehors the record, the burden is on the defendant to show that it
was litigated.

No presumption that the counterclaim in the former action was litigated arises
from the fact that it was pleaded.

It is error to allow the jury to say whether a question was adjudicated on a
former trial, for that is a question of law. Barber v. Ellingwood (No. 2), 704.
Effect of judgment of Appellate Division-subsequent reversal.

See CORPORATION, 5.

Admeasurement of dower-subsequent claim of widow to fee.

See DOWER.

Effect of action not carried to judgment-purchase of land with notice of
judgment.

See EJECTMENT, 1.

Probate of heirship by surrogate not conclusive as to title to land.

See EJECTMENT, 2.

Judgment for partial breach of contract-subsequent breach.
See MASTER AND SERVANT, 10.

LACHES.

Suit to set aside judgment at law.
See EQUITY.

Foreclosure-unauthorized appearance for infant-action to partition.

See MORTGAGE, 1.

LANDLORD AND TENANT.

1. Dispossession by summary proceedings — recovery of rent payable in advance.
While the issuance of a warrant for the removal of a tenant by summary pro-
ceedings terminates the relation of landlord and tenant, the former, by virtue
of the exception contained in section 2253 of the Code of Civil Procedure, is
entitled to recover rent payable in advance if it became due prior to the time
the precept issued. Berg v. Kaiser, 1.

2. Evidence-when lease executed by agent without authority admissible — money
had and received. In an action to recover rents paid in advance under a lease
which the defendant claimed had been executed by her husband as her agent
without authority, the lease and receipts for the money paid are admissible in
evidence although the plaintiff proved no written authority in the husband, for
they are competent to show the foundation for the payment of rent by the
plaintiff.

Where in such action it appears that the husband had authority to lease part
of the building and that he received the advance rent in the defendant's presence
and with her approval, and she subsequently refused to give the plaintiff pos-
session, the jury may find that there was an implied promise by her to return
the money unless she complied with the conditions of the lease under which
she received it. Walder v. English, 43.

3. Summary proceedings-final order should award possession — partial eviction
-appeal from Justice's Court-failure of County Court to order new trial on
reversal-power of Appellate Division. A final order in favor of the landlord
in summary proceedings should award possession of the premises, not damages
for unpaid rent.

If there be a continuing partial eviction the landlord cannot maintain summary
proceedings against the tenant for non-payment of rent.

It seems, that where the County Court on reversing an order in summary pro-
ceedings made by a justice of the peace as against the evidence and law did
not order a new trial before the same or another justice of the same county,
the Appellate Division may modify the order of reversal, so as to direct the
County Court to order a new trial.

But where the order of reversal does not purport to give judgment for the
defendant on the merits, the landlord will be left to a new proceeding. Liedtke
v. Meyer, 74.

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4. Facts not showing refusal to give possession· measure of damages. Mere
proof that a lessee found the door of the demised premises locked on the date
he was entitled to possession under his lease, and the fact that he had been
previously told by a stranger that he could not get possession, does not estab-
lish a breach of the lessor's covenant to give possession.

While the lessor is bound to give possession, he is not obliged physically to put
the lessee in possession.

The measure of damages where a lessor fails to give possession is the differ-
ence between the rent reserved and the rental value of the premises, together
with such necessary expenses incurred by the lessee in preparing for occupation
as were within the contemplation of the parties. There can be no recovery for
sums paid by the lessee for electric light during the term, although the lease
required the lessor to furnish such light free of charge. Podalsky v. Ireland,

257.

5. Breach of covenant not to lease to competing tenant — injunction - scope of
order. Where a landlord violated a covenant not to lease any part of the build-
ing to persons selling goods in competition with its lessee by leasing a part of
the premises to persons who handled such goods in connection with other goods,
but the competing lessee has vacated, an injunction restraining the landlord
from the particular violation of the covenant is sufficient if it do not appear
that he threatens to repeat the violation. An injunction restraining the les-
sor from renting any part of the premises to any one for the purpose of dealing
in any of the articles sold by the lessee is too broad. Angelo Co. v. Improved
Property Holding Co., 308.

Lease acquisition of title by city.

Spence v. Charrot, 882.

Lease of farm and stock on shares-liability for trespass of animals.

See ANIMALS.

Summary proceedings — defense asking specific performance—jurisdiction of
Municipal Court.

See COURT, 2.

Broker procuring lease-commissions.

See PRINCIPAL AND AGENT, 5.

LARCENY.

Receiving stolen goods.

See CRIME, 1.

Return of stolen property - admissions.

See CRIME, 2.

Ratification of larceny of agent.

See FALSE IMPRISONMENT, 1.

1. Publication holding woman up to ridicule. A publication falsely stating that
the plaintiff, a woman, was served with process while in a bath tub and detailing
various circumstances connected with the alleged event calculated to hold her
up to public ridicule and to lower her in the estimation of the community is
libelous, although it make no charge of immoral conduct or character.
v. New York Press Co., Limited, 291.

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Snyder

2. Riotous acts of members of unincorporated labor association — pleading —
failure to state cause of action-damage to business must be shown-trade union
defined — insufficient innuendo failure to charge association with acts of members.
An unincorporated voluntary association consisting of more than seven persons
cannot maintain an action for libel without showing that the publication tended
to injure its business and credit. A mere allegation that its reputation was
injured is insufficient.

The complaint of such association must set forth its business; a mere allega-
tion that it is transacting business in a certain place merely localizes the field of
its activity.

An allegation that the association is a labor organization does not neces-
sarily imply that it carries on any business so as to furnish a basis for a recovery
for libel.

"Trade union" and "labor organization" defined.

Imputations upon the character of such labor union not affecting its credit
or business are not actionable per se.

Where an action for libel is brought by the treasurer of such unincorporated
association innuendoes stating that the publication referred to "the plaintiff "
do not show that they referred to the association.

A publication stating that certain unnamed individuals, members of the union,
violently interfered with the business of the defendant by attacking its employ-
ees, does not charge the association with responsibility for such acts, where
there is nothing to show that it instigated the same. Stone v. Textile Examiners
Employers' Assn., 655.

3. Pleading-complaint - demurrer. In deciding whether or no an article is
libelous, its entire scope and object will be considered, and the language given
its natural meaning.

If the article be susceptible of but one meaning, the question as to whether it
is libelous per se is one of law for the court. But if it be susceptible of more than
one meaning, one of which would make it libelous, the libelous meaning should
be charged by innuendo, and it is for the jury to determine whether the libelous
meaning would be given by readers of ordinary and average intelligence.

If the article be libelous per se without innuendo, a complaint thereon is
not demurrable although an innuendo of which the article is not susceptible
be pleaded.

But if it be ambiguous and not necessarily libelous per se, and a libelous
meaning of which it is susceptible be charged by innuendo, the complaint thereon
is not demurrable, as the plaintiff in any event is entitled to a charge that if the
publication would be understood by the average reader in the libelous sense
the article is libelous per se, so that the plaintiff may recover general damages
without alleging special damage.

Where the complaint in an action for libel alleges that the defendant published
an article charging in substance that plaintiff, who was engaged in the business
of producing plays, had, together with his partner, "forced" a third partner
"into retirement and seized the whole profits," meaning thereby that the part-
ner had retired because of plaintiff's wrongful acts, and that plaintiff and the
other partner had corruptly and illegally appropriated to themselves the capi-
tal and profits, a demurrer thereto on the ground that it does not state a cause
of action will be overruled.

Words which have a tendency to hurt or prejudice one in his trade or business
are actionable. Klaw v. New York Press Co., Limited, 686.

LIBEL- Continued.

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words affecting one in his pro-

4. Pleading innuendo promoter defined
fessional capacity — words not libelous as to president of corporation. An innuendo
in a complaint for libel does not enlarge the meaning of the words; its purpose is
to define them, or to show that they relate to the plaintiff.
"Promoter" of a corporation defined.

A promoter does not necessarily have to do with the paying in of the capital
of the corporation. Nor is the president of the corporation necessarily connected
with its organization, even though he had been a promoter.

Words that disparage an officer, professional man or trader are not action-
able per se. They must touch him in his office, profession or trade; that is to say,
they must be shown to have been spoken of him in relation thereto and to be
such as would prejudice him therein.

A publication which in substance alleges that the Attorney-General and Insur-
ance Department contend that the capital and surplus of a corporation when
certified as having been paid in cash were to a large extent fictitious, and that
the plaintiff is the president of the company, is not libelous as against him, if
there be no statement connecting him with the fraudulent acts. Armstrong v.
Sun Printing & Publishing Association, 828.

LIEN.

1. Mechanic's lien — assignment of sum due firm of contractors for individual debt
consideration mechanic's lien superior to claim of trustee in bankruptcy —
assignment to guarantor consideration assignment in fraud of lienors. An
assignment of a sum due a firm of building contractors made by one of the partners
in the firm name in satisfaction of his individual obligations incurred prior to the
formation of the partnership is without consideration and void as against a
mechanic's lien filed by a sub-contractor subsequent to the assignment. The
lien of such contractor on the sum assigned is superior to the claim of a trustee
appointed on the bankruptcy of the partners, whether or no such assignment be
void or voidable under the Bankruptcy Act.

An assignment of a portion of a sum due a firm of building contractors to a
person who had previously guaranteed the payment of an accommodation note
made by another person for the benefit of the firm, which assignment was made
after the guaranty, on which there was no right to indemnity, and before the
maturity of the note, is without consideration, and is void against sub-con-
tractors who filed liens on the sum assigned.

This is true although the guarantor voluntarily paid the note when it subse-
quently fell due, if the maker was able to pay to the knowledge of the guarantor.
Where such assignment was made and accepted with the intent to defraud
the lienors, it is void as to them even though the voluntary payment of the note
by the guarantor should be deemed to be a consideration. Concord Construction
Co. v. Plante, 243.

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2. Mechanic's lien — modification of judgment on appeal —participation of mem-
bers of school board in sub-contracts· -bills and notes-draft on special fund-
validity of payment as to subsequent lienors — school law-costs. Where in a suit
to foreclose a mechanic's lien the decree inadvertently fails to grant a deficiency
judgment against the principal contractor, it will be modified on appeal so as to
supply the omission.

Where a board of education contracted for the construction of a school build-
ing the fact that one of the sub-contractors subsequently became a member of
the board does not deprive him of full rights to enforce his contract, nor does
the fact that a member of the board was interested in a corporation, one of the
sub-contractors, invalidate the lien of that company or make illegal a payment
for work actually done and accepted.

Where the principal contractor made a note, bearing the words "Charge to
bond account," and the president of the board of education wrote on the back
that the note was authorized and to be deducted from the next estimate, a pay-
ment of the note by the board in good faith is valid as against sub-contractors
filing liens subsequent to the payment. This is so, although the note, which
was made for the purpose of raising money to pay the wages of employees upon
the building, was not paid out of the next estimate.

Section 25 of article 4, title 8, of the Consolidated School Law does not invali-
date a payment actually made on a valid debt, though not in the form prescribed.
The board of education should be allowed payments on valid liens made within
three months after they were filed, as for money paid on the contract.

LIEN - Continued.

Costs should not be charged against the members of the board personally where
they proceeded lawfully, did not invite the litigation, and claims of the con-
tractors for extra work were reduced over one-half. Goodrich v. Board of Edu-
cation, 499.

3. Mechanic's lien — extension of lien where lienor is made defendant by other
lienor―statute construed. Although by virtue of the statute a mechanic's lien is
extended where the lienor is made party defendant in a suit to foreclose "another
lien," even though a year has elapsed since the filing of his lien, and there has
been no order continuing the same, such lien is not saved by reason of the fact
that the lienor is made party defendant in an action to foreclose a mortgage
on the lands recorded simultaneously with the lien.

The words " another lien," as used in the statute, refer to another mechanic's
lien, not to the lien of a mortgage. Philbrick & Brother v. Florio Co-Operative
Association, 613.

4. Mechanic's lien — personal judgment though lien be defective-failure to per-
form, when justified. Even though a mechanic's lien be fatally defective, the
court may retain a suit of foreclosure for the purpose of rendering a personal
judgment for work done and materials furnished, pursuant to the contract and
for extra work, provided the plaintiff is not in default.

Evidence in an action to foreclose a mechanic's lien examined, and held, that
the failure of the plaintiff to complete a portion of the work was not due to his
own fault but to acts of the defendant.

A contractor is entitled to earn his payments in the order prescribed by_the
contract, except as the necessities of building require him to do some part of the
work for which compensation is provided in later installments. He cannot be
compelled to distribute his labor among several classes of work without power
to complete any, so as to prevent him from earning his money according to the
terms of the contract. Jones v. Dodge, 853.

Attorney's lien-common-law lien and statutory lien.
See ATTORNEY AND CLIENT, 1.

Pledge of stock-surrender of possession.

See BAILMENT.

Necessity for possession.

See FALSE IMPRISONMENT, 1.

Attorney's lien - amount.

See HUSBAND AND WIFE, 6.

Pleading foreclosure of lien and action for services.

See PLEADING, 4.

Attorney's lien - prior equity.

See PRACTICE, 4.

Mortgage-fixtures-priority as to vendor-conditional sale.
See REAL PROPERTY, 1.

1. Pleading-counterclaim for trespass — posting bills on land of another without
permission-arrest without warrant. A defendant sued for false imprisonment
and malicious prosecution for causing the plaintiff's arrest cannot counterclaim
damages caused by the trespass of the plaintiff in posting advertisements upon
the defendant's property without permission, although the arrest was made
because of the plaintiff's refusal to desist and leave the premises when ordered