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.
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.
Admeasurement of dower-subsequent claim of widow to fee.
Effect of action not carried to judgment-purchase of land with notice of judgment.
Probate of heirship by surrogate not conclusive as to title to land.
Judgment for partial breach of contract-subsequent breach. See MASTER AND SERVANT, 10.
Suit to set aside judgment at law. See EQUITY.
Foreclosure-unauthorized appearance for infant-action to partition.
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.
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,
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.
Summary proceedings — defense asking specific performance—jurisdiction of Municipal Court.
Broker procuring lease-commissions.
See PRINCIPAL AND AGENT, 5.
LARCENY.
Receiving stolen goods.
See CRIME, 1.
Return of stolen property - admissions.
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.
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.
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.
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.
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.
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
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