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it was error to subsequently. strike from such

judgment the words “on the merits.”-Hirsh-
See "Courts"; "Justices of the Peace."

bach v. Ketchum (Sup.) 143.

Where a final judgment on demurrer dis-

missed plaintiff's complaint on the merits, and

he did not move to have the same modified, by
Decisions of courts in general, see "Courts," $ 1. striking out the words "on the merits," for
Directing judgment on reversal, see "Appeal," more than five years, he was barred by laches.
$ 8.

-Hirshbach v. Ketchum (Sup.) 143.
Review, see "Appeal.”

§ 5. Merger and bar of causes of action
In actions by or against particular classes of

and defenses.

Where plaintiff made a mistake in splitting
See “Infants," $ 2.

an entire demand, and obtained judgment on
Trustees, see “Trusts," $ 6.

a part thereof, the judgment will be vacated,

and he be allowed to consolidate his action
In particular civil actions or proceedings. with one subsequently brought for the other
For price of goods, see "Sales," $ 5.

portion thereof.- Rockefeller v. St. Regis Paper
On appeal, see "Appeal." $ 8.

Co. (Sup.) 975.
To construe will, see “Wills," $ 10.

$ 6. Conclusiveness of adjudication.
To enforce trust, see "Trusts," $ 6.
Trial of claim against estate of decedent, see ing to an infant was adjudged by the county

Where the value of personal property belong-
"Executors and Administrators," $ 4.

court in a proceeding to sell the infant's real
In particular prosecutions.

estate, such action could not be reviewed on a
See "Criminal Law," $ 4.

settlement of the accounts of the infant's guard-

ian.-In re Turner (Sup.) 573.
$1. Nature and essentials in general.
An invalid order, granting an amendment of

the summons and complaint, held not to con-
stitute a discontinuance as to defendant in his In civil actions, see "Evidence,”
individual capacity, so as to preclude a rendition
of the judgment against nim on vacation of the
order.- United Press v. A. S. Abell Co. (Sup.)


Jurisdiction of particular actions or proceedings.
§ 2. By default.

A default judgment against “Zachariah” B. Against foreign corporation, see "Corporations,"
heid not subject to vacation on motion of “Zax” Criminal prosecutions, see “Criminal Law," $ 1.
B.-Meurer v. Berlin (Sup.) 240.

For accounting by executors, see "Executors
On opening the default of a defendant after and Administrators," $ 7.
answer, he should be required to pay the trial To construe will, see "Wills," $ 10.
fee, term fee, and witness fees, in addition to Trial of claims against decedents' estates, see
$10 costs of motion.-Randall v. Shields (Sup.) "Executors and Administrators," $ 4.
Motion to open a default is properly denied; Particular courts, see "Courts."

Special jurisdictions.
the proposed answer being insufficient as de-
fense.-Sutherland v. Mead (Sup.) 504.
An order setting aside a default, failing to

specify the grounds as required by Consolida-
tion Act, $ 1367, held invalid.—Johnson v. Man. Custody and conduct, see “Trial,” & 6.
ning (Sup.) 738.

Grounds for reference instead of trial by jury,

see "Reference," $ 1.
A motion to open a default should not be Instructions in civil actions, see "Trial,” $ 5.
granted, in the absence of a tender of the plead. Questions for jury in civil actions, see "Trial,”
ing proposed to be served.-Meyer v. City of $ 1.
New York (Sup.) 774.

Taking case or question from jury at trial, see
§ 3. On trial of issues.

"Trial," $ 4.
Under Code Civ. Proc. & 1228, a decision is 8 1. Right to trial by jury.
essential to support a judgment dismissing a Code Civ. Proc. $ 968, requiring an action for
complaint after trial by the court.-Lentschner a nuisance to be tried by a jury, held not to
v. Lentschner (Sup.) 146.

apply to a suit to restrain a nuisance.-Miller
It is error to render judgment for a party for v. Edison Electric Illuminating Co. (Sup.) 319.
more than he claims in his pleading.-Lifshitz Opening statement of counsel held not an
v. McConnell (Sup.) 253.

introduction of evidence, within Code Civ. Proc.
§ 4. Amendment, correction, and re-18 1009, so as to preclude subsequent demand
view in same court.

for_jury trial.-Herb v. Metropolitan Hospital
Where a final judgment dismissing the com- & Dispensary (Sup.) 552.
plaint on the merits was based on the deter- Under Code Civ. Proc. $$ 970, 974, failure to
mination that plaintiff had no right of action, I demand jury by making motion to settle issues

and 114 New York State Reporter
held not a waiver of jury trial; general rule stitute a holding over by the tenant, so as to
No. 31 not_applying. - Herb v. Metropolitan render him liable to further rent.-Brennan v.
Hospital & Dispensary (Sup.) 552.

City of New York (Sup.) 247.
Under Code Civ. Proc. $ 970, defendant, bav- l'acts held to constitute an acceptance of a
ing right to jury trial on issues raised by lessee's surrender, precluding the landlord from
counterclaim, held entitled to have his motion recovering rent for the remainder of the term.-
for their settlement granted.-Herb v. Metro- Crane v. Edwards (Sup.) 747.
politan Hospital & Dispensary (Sup.) 552.

An agreement assigning a lease construed to
Under Code Civ. Proc. $8 501, 507, 968, 974, contemplate securing for assignee the right to
defendant in purchase-money mortgagefore- occupy premises for five years, and not the ob-
closure, interposing counterclaim for breach of taining of one lease for that time.-Newman F.
covenant, held entitled to jury trial.-Herb v. Tolmie (Sup.) 990.
Metropolitan Hospital & Dispensary (Sup.) 552.

The construction of an agreement to obtain
The offense of petit larceny is a misdemeanor, a lease held a matter for the court.-Newman
and a defendant charged therewith is not en- v. Tolmie (Sup.) 990.
titled to a trial by jury under Old Const. 8
23, art. 6 (Const. 1894, § 23, art. 6), providing held to imply a renewal at the same rental.-

An agreement to secure a renewal of a lease
that courts of special sessions shall have such Newman v. Tolmie (Sup.) 990.
jurisdiction of offenses of the grade of misde
meanor as may be prescribed by law.-People $ 3. Premises, and enjoyment and use
v. Stein (Sup.) 847.

§ 2. Competency of jurors, challenges, in sidewalk adjoining premises held to depend

Liability of a landlord for defect in coal hole
and objections.
Juror held disqualified, on account of previ- on whether the coal hole was in a defective or
ously formed opinion, under Code Cr. Proc. sunsafe condition at the time he parted with
376.–People v. Miller (Sup.) 1070.

possession to the tenant.--Matthews v. City of

New York (Sup.) 360.
Failure to set aside jurors, disqualified un-
der Code Cr. Proc. § 376, held_reversible er- trian falling into a coal hole in a sidewalk, the

In an action for injuries sustained by a pedes-
ror.-People v. Miller (Sup.) 1070.

evidence held to justify a finding that the hole
Disqualification of juror, under Code Cr. Proc. was in a dangerous condition at the time the
§ 376, on account of previously formed opinion, owner of the adjoining premises leased them
held not removed.-People v. Miller (Sup.) 1070. and parted with possession to his tenant.-

Matthews ý. City of New York (Sup.) 360.
JUSTICES OF THE PEACE. § 4. Rent and advances.

Warrant in summary proceedings held not to
f 1. Procedure in civil cases.

estop landlord from recovering rent up to the
That justice of the peace communicated with time it was issued.-Adler V. Kramer (Sup.)
jury after they have retired held not ground for 624.
new trial.--Welker v. Allen (Co. Ct.) 382.

§ 5. Re-entry and recovery of posses-

sion by landlord.

Where a landlord failed to describe his in-
Of actionable words, see “Libel and Slander," terest in the premises in his complaint in sum-
$ 2.

mary proceedings, as required by Code. $ 2235,

the court acquired no jurisdiction.-Kazis F.

Loft (Sup.) 1015.

An injunction held properly granted, under
Of vicious propensities of animal, see "Ani-Code Civ. Proc. $ 2265, to restrain the execu-

tion of a warrant of removal in summary pro-

ceedings.-Kazis v. Loft (Sup.) 1015.

Code Civ. Proc. $ 3240, relating to costs in

special proceedings, does not apply to a sum-
$ 1. Leases and agreements in general. mary proceedings by a landlord. – Lauria .
A lessee, induced to take

a lease by false rep- Capobianco (City Ct. n. Y.) 203.
resentations, held entitled to recover his deposit Landlord, succeeding in summary proceedings
made as security for his performance of condi- not involving forcible entry, held entitled to
tions.--Prince v. Jacobs (Sup.) 304.

$10 costs.-Lauria v. Capobianco (City Ct. N.
One having taken a lease because of false rep-

Y.) 203.
resentations may keep it and sue for damages.

- Prince v. Jacobs (Sup.) 304.

Lease construed, and landlords held entitled Conviction of offense charged, see "Indictment
to retain deposit as liquidated damages for and Information," $ 1.
breach of lease.-Adler v. Kramer (Sup.) 624.
$ 2. Terms for years.

The accidental retention of the keys for six
weeks after the lease expired held not to con- | Decision on appeal, see "Appeal," 7.



See "Highways," 8 2.

For sale of intoxicating liquors, see "Intoxi-

cating Liquors," $ 1.

See "Landlord and Tenant."

Effect of proceedings in bankruptcy.

"Bankruptcy,” § 1.
See “Wills."

Particular classes of liens.

See "Mechanics' Liens."

Of bank on stock, see “Banks and Banking,"
See "Taxation," § 5.

8 1.
Of broker, see “Brokers," i8 2.

Pledge, see "Pledges."
For inventions, see "Patents."


See "Dower"; "Remainders."

Creation by will, see “Wills," $ 7.
§ 1. Words and acts actionable, and

liability therefor.
A publication that there was


a gang of
blackmailers in an association of which plain-
tiff was an officer held not libelous as to plain- | Against stockholders, see "Corporations," $ 2.
tiff.-Hauptner v. White (Sup.) 895.

8 1. Statutes of limitation.
§ 2. Justification and mitigation.

Amendment of statute of limitations cannot
In an action for libel, that plaintiff had pub- revive a judgment barred by statute before the
lished of defendant or of his newspaper some ir- amendment. — In re Guttroff's Estate (Sur.)
ritating matters does not justify the publica-

tion of a libel concerning plaintiff.-Xavier v. An amendment to a statute of limitations
Oliver (Sup.) 225.

may lawfully be retroactive.--In re Moench's
Under Code Civ. Proc. $ 536, the defendant Estate (Sur.) 222.
in an action for libel may allege as a partial de 8 2. Computation of period of limita-
fense that the plaintiff had published certain

irritating matters of defendant or of his news- Facts held to show not a single cause of ac-
paper.-Xavier v. Oliver (Sup.) 225.

tion, but several, for services, as regards the
$ 3. Actions.

statute of limitations.-Shaferv. Pratt (Sup.)
Allegations of separate defenses of privi- 109.
Jege and justification in an action for libel held Facts held to show a single cause of action
not to constitute an admission that the matter for services, as regards the statute of limita-
published referred to plaintiff.-Hauptner v. tions.-Shafer v. Pratt (Sup.) 109.
White (Sup.) 895.

$ 3. Acknowledgment,
Where, in an action for libel, the publication


and part payment.
did not bear out the innuendo, it was insuffi-

Facts held not to show payment on claims
cient for plaintiff simply to allege, as author- barred by limitations.-Shafer v. Pratt (Sup.)
ized by Code Civ. Proc. $ 535, that the de- 109.
famatory matter was published concerning him.
-Hauptner v. White (Sup.) 895.

Credits of interest on an account of a third

person, not shown to have been authorized or
Expression of court in action for libel held not acquiesced in by the holder of certain notes,
reversible error.-Brandt v. Morning Journal held insufficient to suspend the statute of lim-
Ass'n (Sup.) 1002.

itations.-Kirkpatrick v. Goldsmith (Sup.) 835.
In libel, if it be shown that the publication
was false and libelous per se, the jury may

find the existence of malice.- Brandt v. Morn-
ing Journal Ass'n (Sup.) 1002.

Of carrier, see "Carriers," $81, 2.
In libel, if it be shown that the publication
was malicious, exemplary damages are allow-
able.-Brandt v. Morning Journal Ass'n (Sup.) LIMITED PARTNERSHIP.
In an action for libel, held error to have left

See "Partnership," $ 4.
it to the jury to determine whether the publi-
cation charged plaintiff with an attempt to

poison his wife.-Kuster v. Press Pub. Co.
(Sup.) 1050.

See "Intoxicating Liquors.”


and 114 New York State Reporter

8 1. The relation.

Employer held to have ground for discharging
Jurisdiction of offense, see “Criminal Law,” $1. servant.-Hutchinson v. Washburn (Sup.) 691.

Reason for discharge of servant, not known

to employer at the time, may nevertheless be

relied on by him in defense to action for dam-
Master held not liable to servant's assignee ages.-Hutchinson v. Washburn (Sup.) 691.
for amount represented by wage coupons lost by
scrvart.-Clayton v. Knox (Sup.) 242.

§ 2. Services and compensation.

A defense of new matter to a complaint on a

contract of employment, that the employment

was by another, held sufficient.-Kraus v. Agnew

(Sup.) 518.
See “Insane Persons."

§ 3. Master's liability for injuries to


Evidence in an action to recover for the
Liability of employer for defects, see “Master death of employé examined, and held, that con-
and Servant,” 8 3.

tributory negligence was conclusively shown.-

Dickescheid v. Betz (Sup.) 175.

Where the fall of an elevator which injured

plaintiff, an employé, was caused by the break-
See "False Imprisonment."

ing of an elevator wheel, evidence as to the

cause of the breaking of the wheel held to pre-

sent a question for the jury.-Swenson v. Metro-

politan St. Ry. Co. (Sup.) 281.
f 1. Jurisdiction, proceedings, and re-

In an action for injuries to a servant, caused

by the falling of an elevator, evidence held to
In mandamus to compel the reinstatement of justify a finding that defendant had not prop-
petitioner to an office abolished in bad faith, erly inspected the same.-Swenson v. Metropoli-
the appointee of the new office created in the tan St. Ry. Co. (Sup.) 281.
place of the one abolished is not a necessary A steamship company, which sent an employé
party; but, in mandamus to compel his transfer onto a barge owned by another party to assist
to the newly created position, the appointee is in hauling it into position alongside the steamer,

necessary party.-Jones v. Willcox (Sup.) held not liable for an injury to such employé,

caused by a defect in the deck of the barge. -
Though, in a case where the allegations in the Huebner v. Hammond (Sup.) 295.
petition for a writ of mandamus are controvert-
ed, the petitioner is not entitled to a peremptory brought under Laws 1902, c. 600, held not to

Complaint in action for death of servant,
writ, an alternative writ will be awarded, even
if not demanded, in case a new proceeding will state cause of action.—Gmaehle v. Rosenberg

be barred.—Jones v. Willcox (Sup.) 420.

The contributory negligence of a serrant,

killed by a revolving shaft, held a question for

the jury.--Levy V. Grove Mills Paper Co.

(Sup.) 730.
See "Mandamus."
To lower court on decision on appeal, see "Ap being caught by a revolving shaft, evidence held

In au action for the death of a servant by
peal,” $ 8.

to justify a verdict for plaintiff.—Levy v. Grore

Mills Paper Co. (Sup.) 730.

It is the duty of an employer to inspect the
Purchases by brokers on margins, see "Bro- pole before sending a servant to the top of it.-
kers," 8 1.

Walsh v. New York & Q. C. Ry. Co. (Sup.) 767.

Where telegraph lineman was injured by fall-

ing of a pole, the fact that wires were being re-
See “Divorce"; "Husband and Wife.”

moved from wooden poles to iron ones held not
a notice of defects.-Walsh v. New York & Q. C.

Ry. Co. (Sup.) 767.

Where an electric lineman, in the discharge

of his duties, ascends a telegraph pole, it is not
See "Husband and Wife."

incumbent on him to inspect the pole, where a de

fect is not obvious.-Walsh v. New York & Q.

C. Ry. Co. (Sup.) 767.

An electric lineman, who ascends a telegraph
Employés of municipal corporations, see "Mu- pole, has a right to use such of the appliauces
nicipal Corporations," 4.

furnished as appear to be reasonably safe to
Liability of carrier for assault by conductor on the performance of the task.--Walsh v. New
passenger, see “Carriers," $ 2.

York & Q. C. Ry. Co. (Sup.) 767.


A servant who, in the discharge of his du- A demurrer will not lie to an action to re-
ties ascends a telegraph pole, is not bound to cover a debt because a mechanic's lieu for the
brace the pole, unless the danger of proceed- same amount is still undetermined by the
ing otherwise is obvious.-Walsh v. New York courts.-Power v. Onward Const. Co. (Sup.)
& Q. C. Ry. Co. (Sup.) 767.

Rottenness of telegraph pole held proximate

cause of injury to lineman.-Walsh“ v. New
York & Q. Č. Řy. Co. (Sup.) 767.

Of municipal council, see "Municipal Corpora-
A servant, killed by falling into a cistern

tions," 8 1.
which he was cleaning, held to have assumed
the risk.-Willdigg v. Knox (Sup.) 1018.

The death of a telegraph lineman, caused by Required by statute of frauds. see “Frauds,
his being thrown from a falling pole, held the Statute of," $ 2.
result of his contributory negligence.—Leach v.
Central New York Telephone & Telegraph Co.
(Sup.) 1037.

An employé seeking to recover for injuries Of cause of action in judgment, see "Judgment,"
held to have assumed the risk of the dangers

$ 5.
incident to his employment.-Gerstner v. New Of contract, see “Contracts," $ 3.
York Cent. & H. R. R. Co. (Sup.) 1063.
The master held to owe no duty to his em-

ployés as to the manner in which cars should See "Food."
be inspected.-Gerstner v. New York Cent. &
H. R. R. Co. (Sup.) 1063.

§ 4. Liabilities for injuries to third See “Infants."

Evidence in an action for personal injury,

caused by the negligence of a truck driver, ex-
amined, and held, that the driver was' not or damages, see "Libel and Slander,” 8 2.
shown to be servant of one of the defendants.
-Moore v. Stainton (Sup.) 244.


Recovery of payment in general, see “Payment,"

§ 2.
See “Damages," 8 1.

In an action by a corporation for misappropri-

ated money, evidence examined, and held suffi-

cient to support a finding that such money had

never been so misappropriated.-M. Grob's Sons
§ 1. Right to lien.

v. Groh (Sup.) 438.
Right of building contractor to amount due
under contract, which had been assigned to him
after the work had been partially completed,

held subject to liens perfected against the orig-

Mortgages of particular species of property.
inal contract.-Smith v. Schile (Sup.) 1078.

Personal property, see "Chattel Mortgages."
§ 2. Proceedings to perfect.

Trust estates, see "Trusts," $ 4.
Under Mechanic's Lien Law, &$ 3, 9, notice of
lien held to sufficiently state labor performed and 8 1. Foreclosure by action.
materials furnished, and the price or value there- Settlement before trial of issues arising on
of.-Clarke v. Heylman (Sup.) 794.

counterclaim for breach of covenant held un-

necessary in purchase-money mortgage fore-
$ 3. Enforcement.

closure.--Herb v. Metropolitan Hospital & Dis-
Complaint for special relief on foreclosure of pensary (Sup.) 552.
mechanic's lien held cognizable only in equity -
Faville v. Hadcock (Sup.) 23.

Defendant, though entitled to vacation of final

judgment for mortgage foreclosure, on reversal of
Costs in mechanic's lien proceedings seeking interlocutory judgment sustaining a demurrer to
special relief against defective notice of lien a defense, held entitled to order of restitution of
held not governed by Code Civ. Proc. $ 3228, the property sold, only in a proceeding to which
subd. 4.-Faville v. Hadcock (Sup.) 23.

the purchaser is a party, after trial of the
The fact that other notices of lien had been issue raised by the answer.--Schieck v. Donohue
previously filed, but lost, under Mechanic's Lien (Sup.) 739.
Law, 88 16, 18, through failure to prosecute, held First mortgagee held not estopped to claim
not a defense to mechanic's lien foreclosure.- default in payment of interest, as against second
Clarke v. Heylman (Sup.) 794.

mortgagee and purchaser at foreclosure sale of
Complaint in proceedings by subcontractor to second mortgage.-Priest v. Gumprecht (Sup.)
foreclose lien held to sufficiently allege affirmance

by owner of contract between plaintiff and con- Consideration for agreement to extend first
tractor.-Clarke v. Heylman (Sup.) 794. mortgage to prevent foreclosure of second mort-

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