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. i. Res adjudicata. MECHANICS' LIENS. 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 aflidavit, 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 NOTE. RECITAL IN ORDER OF PA- 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. ..... NEGATIVES PREGNANT. See Pleading. NEW TRIAL. See Motions. See Judgment. c. When party a foreign corporation. Jurisdiction.-An objection that the court has no jurisdiction of a defendant's person, because of the want of a proper service of summons, can be taken advantage of only by motion, and not by demurrer. Belden v. Wilkinson, 48. Objection to complaint-defect of parties.-Where the answer contains no averment that there is a defect of parties, defendant may not question the sufficiency of the complaint on the trial on account of such defect. Persons v. Kruger, 100. Answer-denial.-An answer, in an action to recover for services rendered, which did not deny the contract set out in the complaint, but alleged that the services for which plaintiff claims were in fact rendered by another, does not plead a defense. Place v. Bleyl, 95. New matter-reply.—Plaintiff, as assignee of a judgment collected by defendants, brought an action for the amount thereof. Defendants' answer alleged that they collected the judgment under an agreement fixing their fee at one half the amount recovered, and they obtained an order requiring plaintiff to serve a reply to the new matter contained in their answer. Held, error, where the new matter alleged was within the knowledge of defendants, and could be proved at trial. Masters v. NOTE.-EXEMPTION OF PARTIES De Zavala, 286. AND WITNESSES FROM SERVICE OF PROCESS.. ...329-342 NOTE. WHEN REPLY ORDERED .286-292 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. .82-94 c. Change of cause of action or defense. d. Immaterial variance or technicar defect. PRIVILEGED COMMUNICATION. See Evidence. PROCESS. 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 at tend 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, 329. .... Authority to purchase material—purchase in foreign state.-A receiver of a manufacturing company was authorized to continue the business as formerly conducted, or as in his judgment might be necessary to preserve its outstanding contracts from loss, and to enable him to collect accounts due or to become due. Held, that he was authorized to purchase a consignment of saddles to complete bicycles contracted for before his appointment. Sager Mfg. Co. v. Smith, 58. Individual liability.-Where a receiver is authorized to continue the business and make purchases, he may make them in the state of his appointment, or any other state, without being personally liable, if he discloses his character and source of authority. Sager Mfg. Co. v. Smith, 58. NOTE. PERSONAL LIABILITY OF RECEIVERS ON THEIR CONTRACTS..58-65. REFERENCE. Termination—agreement to allow referee all time needed to report.-When an oral agreement is made, at the close of testimony taken before a referee to allow him all the time he requires to make his report, the reference cannot be terminated under Code Civ. Pro. § 1019, providing that, where the referee's report is not filed within 60 days, either party may serve a notice upon the other that he elects to end the reference. Sproull v. Star Co. 172. -delay-election a SESSION LAWS. to terminate- waiver reasonable notice.-Where referee is given such time as he desires or may find necessary to report, the right of either party, under Code Civ. Proc. § 1019, on failure of the referee to make report within 60 days, to elect to end the reference by service of notice upon the opposite party, is waived, and the reference cannot be ended without giving reasonable notice. Gill v. Clark, 422. —unreasonable delay.-Where a referee is requested, by the joint note of the parties, five months after the submission of a cause, for a "decision in the near future," and no report is filed at the end of twenty-eight days thereafter, plaintiff is entitled to terminate the reference on notice. Gill v. Clark, 422. § 10 chap. 673.. chap. 416. SHERIFFS. See Contempt. .296, 298, 308 .355 14 .18 .405, 406n See Half-holiday. 10 -letter constructed as extension of time.-Where a referee is given such time as he desires to file a report, and ceive-half-holiday.-Code Civ. Pro. § neglects for five months to make the same, a joint note from the parties at the end of such period, to the effect that they expect a "decision in the near future," operates as a limited extension of time to the referee. Gill v. Clark, 422. NOTE. EXTENSION OF TIME REFEREE TO REPORT.... .....172-178 2. Application of § 1019 Code of Civil Procedure. FOR b. Extension by act or omission of referee.-Notice. c. Extension by consent.-Oral stipulations. d. Extension by waiver of parties. REMOVAL OF CAUSES. RULES. See General Rules of Practice. SEPARATION. See Divorce and Separation. SERVICE OF PROCESS. 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 did not deprive him of his official powwas situated, since the half holiday law ers, 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. SPECIAL GUARDIAN. STATUTE OF FRAUDS. STATUTES. See Session Laws. STAY. 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. §§ 2557-2561. Robinson, Matter of, 28. TERMS. See Pleading. 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. NOTE. COMMUNICATIONS BETWEEN TRUSTEES. See Adoption. ..481 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 irreguMotion for judgment on pleadings.larity in such drawing; and a change of 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. TRIAL. NOTE. JUDGMENT AT TRIAL ON ......95-98 PLEADINGS.. .... venue will not be granted on that FICIAL POSITION OF PARTY OR AT- WAIVER. See Reference. WITNESSES. .262-263 |