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designated place, permits another to do business thereunder at such place, the certificate cannot be revoked because such other engages in unlawful sales of liquor at other places. Lyman, Matter of, 9.
Revocation. The right to engage in the sale of liquors, granted by a liquortax certificate, cannot be revoked, except for the causes and in the manner prescribed by statute. Lyman, Matter of, 9.
-conviction as prerequisite.-Under the liquor-tax Law, § 34 as amended by Laws of 1897, chap. 312, which provides that, when a holder of a liquor-tax certificate carries on traffic in violation of statutes regulating it, he shall be guilty of a misdemeanor, and on conviction be fined or imprisoned, or both, and shall forfeit such certificate and be deprived of all rights thereunder, there can be no such forfeiture without a conviction by a jury in a criminal proceeding upon the charge on which the forfeiture is based. Lyman, Matter of, 9.
NOTE. REVOCATION OF LIQUOR-TAX
Consent of owner-repairs by tenant.-A lessee, who was to make necessary repairs at his own cost, which were to belong to the owner at the termination of the lease, contracted for extensive repairs, and during the five months the work progressed the owner constantly examined and admired the same, but never affirmatively consented to the work, and two months after its completion he re-entered and took possession. Held, that the work was done with the
owner's consent, within Laws 1885, c. 342, § 1, as amended by Laws 1895, c. 673, giving a mechanics' lien for work done on a building with the consent of the owner. Gray and Landon, JJ., dissenting. National Wall Paper Co. v. Sire, 406.
Owner's consent to repairs-evidence.-In an action to foreclose a mechanics' lien for material furnished a tenant in the erection of a building on the premises, evidence that the tenant showed the landlord the plans for the building, and was directed to go ahead with the work, and that he knew the work was in progress, is sufficient to show consent to its erection, within Laws 1897, c. 418, giving a lien on realty for materials furnished for its improvement with the owner's consent. Butler v. Flynn, 403.
NOTE.-CONSENT OF OWNER UNDER MECHANICS' LIEN LAW......406-416
a. In general.
b. When improvements made by vendee under executory contract of sale.
c. When improvements made by tenant.
MOTIONS AND ORDERS.
Striking out answer-laches.-A delay of six weeks in moving to strike out an answer, occurring in midsummer, when little business is done in the courts, will not be regarded as such laches as will deprive the party moving of the relief, if otherwise entitled thereto. Williams and Laughlin, JJ., dissenting. Wilgus v. Wilkinson, 363.
For new trial-laches.-After appealing a case to the court of appeals, the defeated party moved for a new trial on the ground that the judgment had been obtained by perjury inspired and manufactured by the attorney for the successful party. Held, that the motion should not be denied on the ground of laches. Nugent v. Metropolitan St. Ry. Co. 193.
Orders resettlement affidavits.Defendant was not entitled to the resettlement of an order on the ground that it failed to recite his submission of an affidavit, where it appeared that he had failed to state to the court, on the oral argument of plaintiff's motion therefor, that he intended to submit an opposing affidavit, and plaintiff did not then know
that the affidavit had been submitted, | fication by attorney-officer absent from since defendant was required to advise attorney's county-sufficiency.-Under plaintiff and the court of such affidavit Code Civ. Pro. § 525, subd. 3, providon the oral argument, if he desired it to ing that when the party is a foreign be considered on the motion. Silo v. corporation, or not within the county Linde, 377. where the attorney resides, a pleading may be verified by the attorney, where a complaint by a domestic corporation shows that all the corporate officers are absent from the county where the attorney resides the court is not without jurisdiction to render judgment on the complaint on the ground that the verification by the attorney was unauthorized. Climax Specialty Co. v. Smith, 373.
NOTE. RECITAL IN ORDER OF
See Bills and Notes.
See Motions and Orders.
PARENT AND CHILD.
Suit by surviving partner.—A surviving member of a firm can sue in his name for claims due the firm. Place v. Bleyl, 95.
See Justices of the Peace.
Negative pregnant-frivolity-judgment.-A reply denying the allegations of a counterclaim in the words of the answer is frivolous and a negative pregnant; and, since it puts nothing in Issue, defendant's motion for judgment on the pleadings should be granted. Pigot v. McKeever, 488. NOTE.-NEGATIVES PREGNANT..488-491 Action by domestic corporation-veri
could be proved at trial. Masters v. NOTE.-EXEMPTION De Zavala, 286.
WHEN REPLY ORDERED
a. The statute.
b. In general-Discretion.
c. Particular Cases.
d. Voluntary service. e. Waiver-Laches.
Amendment of complaint after appeal costs.-Where a plaintiff has been defeated on the trial of his action, and on appeal to the supreme court the decision of the lower court is affirmed, but the judgment of that court is reversed by the court of appeals, "with costs to abide the event," an amendment to the complaint which materially alters the scope of the action will only be allowed at special term upon payment by him of all the costs of the action antecedent to the granting of the motion. Bates v. Salt Springs Nat. Bank, 82.
NOTE. TERMS ON AMENDMENT OF
a. Discretion of court.
c. Change of cause of action or de-
See Justices of the Peace. Service-attendant on trial.-A resident who had been sojourning out of the state to avoid service of process, and voluntarily came within the state to testify in a legal proceeding, and attend as a party, could not be served with process, while coming, attending court, or returning, provided he returned with reasonable dispatch. Cake v. Haight, 329.
--return home-reasonable dispatch. A sojourner in Jersey City, who came to New York City to attend a trial, and, when the case was not called, remained till half past 7 in the even ing, was not exempt from service of process, since he did not return with reasonable dispatch. Cake v. Haight,
OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS...... .....329-342
1873. chap. 830....
1893, chap. 269.
See Contempt. See Half-holiday.
.296, 298, 308 .355 14
SPECIAL GUARDIAN. See Surrogate.
Duties-attachment-refusal to ceive-half-holiday.-Code Civ. Pro. § 644, requires a sheriff to "immediately" execute a warrant of attachment placed in his hands; and Laws 1892, c. 686, as amended by Laws 1895, cc. 150, 718, authorizes him to close his office on holidays and half holidays. Held, that a sheriff was not justified in refusing to receive and serve an attachment offered to him for service between 3 and 4 o'clock on a Saturday afternoon, in a village where the property to be seized was situated, since the half holiday law did not deprive him of his official powers, or relieve him of his obligation to perform any official duties on Saturday afternoons which could be discharged outside his office. Dailey v. Fenton, 222.
STATUTE OF FRAUDS. See Attorneys.
See Session Laws.
Powers compensation of special guardian. The Surrogate's Court has no power to award a special guardian, even when appointed on its own motion to represent an infant party to an executor's accounting, any compensation for his services, out of the general estate of the decedent, in excess of the costs authorized by Code Civ. Pro. 88 2557-2561. Robinson, Matter of, 28.
Motion for judgment on pleadings.A plaintiff may move for judgment on the pleadings although he has replied to a counterclaim set out in the answer, and did not demur to the answer. Place v. Bleyl, 95.
NOTE. JUDGMENT AT TRIAL ON
without any statement of grounds, will not support a judgment. Newman v. Mayer, 497.
Decision of court-statement of the regrounds judgment.-Under quirement of Code Civ. Pro. § 1022, that the decision state concisely the grounds on which the issues have been decided, a decision merely directing judgment,
Justice of the peace-entering jury room-answering questions-invalidity of judgment.-Where, after the submission of a case in justice's court, the justice entered the jury room at the request of the jury, but in the absence of a defendant and without his consent, and answered a question as to the effect of a verdict, a judgment thereafter rendered against such defendant on the verdict of such jury must be reversed, though the question asked was correctly answered, and the jurors were not prejudiced thereby. Abbott v. Hockenberger, 481.
COURT AND JURY AFTER RETIREMENT OF JURY....
County judge-drawing jurors-influence.-Though Laws 1892, c. 491, §§ 13, 14, amended by Laws 1893, c. 269, make it the duty of a county judge to attend at the drawing of jurors, and he may be appointed to do the drawing, it will not be presumed that a fair trial cannot be had in a cause in which the plaintiff was the county judge, and was present at the drawing of jurors as required, there being no charge of irregularity in such drawing; and a change of venue will not be granted on that ground alone. Lent v. Ryder, 262.
NOTE.-CHANGE OF VENUE FOR OFFICIAL POSITION OF PARTY OR ATTORNEY.... .262-263
WAIVER. See Reference. See Evidence.
WITNESSES. See Depositions. See Evidence. See Process.