See "Courts"; "Justices of the Peace."
Decisions of courts in general, see "Courts," § 1.
Directing judgment on reversal, see "Appeal,"
§ 8.
In actions by or against particular classes of
parties.
See "Infants," § 2.
Trustees, see "Trusts," § 6.
In particular civil actions or proceedings.
For price of goods, see "Sales," § 5.
On appeal, see "Appeal." $8.
To construe will, see "Wills," § 10.
To enforce trust, see "Trusts," § 6.
Trial of claim against estate of decedent,
"Executors and Administrators," § 4.
In particular prosecutions.
See "Criminal Law," § 4.
it was error to subsequently strike from such
judgment the words "on the merits."-Hirsh-
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
striking out the words "on the merits," for
more than five years, he was barred by laches.
-Hirshbach v. Ketchum (Sup.) 143.
§ 5. Merger and bar of causes of action
and defenses.
Where plaintiff made a mistake in splitting
an entire demand, and obtained judgment on
a part thereof, the judgment will be vacated,
and he be allowed to consolidate his action
with one subsequently brought for the other
portion thereof.-Rockefeller v. St. Regis Paper
Co. (Sup.) 975.
$ 6. Conclusiveness of adjudication.
seeing to an infant was adjudged by the county
Where the value of personal property belong-
court in a proceeding to sell the infant's real
estate, such action could not be reviewed on a
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," § 1.
individual capacity, so as to preclude a rendition
of the judgment against him on vacation of the
order.-United Press v. A. S. Abell Co. (Sup.)
A default judgment against "Zachariah" B.
held not subject to vacation on motion of "Zax"
B.-Meurer v. Berlin (Sup.) 240.
On opening the default of a defendant after
answer, he should be required to pay the trial
fee, term fee, and witness fees, in addition to
$10 costs of motion.-Randall v. Shields (Sup.)
474.
Jurisdiction of particular actions or proceedings.
Against foreign corporation, see "Corporations,"
Criminal prosecutions, see "Criminal Law," § 1.
§ 6.
For accounting by executors, see "Executors
and Administrators," § 7.
To construe will, see "Wills," § 10.
Trial of claims against decedents' estates, see
"Executors and Administrators," § 4.
Special jurisdictions.
Motion to open a default is properly denied; Particular courts, see "Courts."
the proposed answer being insufficient as a 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-
ning (Sup.) 738.
A motion to open a default should not be
granted, in the absence of a tender of the plead-
ing proposed to be served.-Meyer v. City of
New York (Sup.) 774.
§ 3. On trial of issues.
Under Code Civ. Proc. § 1228, a decision is
essential to support a judgment dismissing a
complaint after trial by the court.-Leutschner
v. Lentschner (Sup.) 146.
It is error to render judgment for a party for
more than he claims in his pleading.-Lifshitz
v. McConnell (Sup.) 253.
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Custody and conduct, see "Trial," § 6.
Grounds for reference instead of trial by jury,
see "Reference." § 1.
Instructions in civil actions, see "Trial," § 5.
Questions for jury in civil actions, see "Trial,"
§ 4.
Taking case or question from jury at trial, see
"Trial," § 4.
1. Right to trial by jury.
Code Civ. Proc. § 968, requiring an action for
a nuisance to be tried by a jury, held not to
apply to a suit to restrain a nuisance.-Miller
v. Edison Electric Illuminating Co. (Sup.) 319.
Opening statement of counsel held not an
introduction of evidence, within Code Civ. Proc.
§ 1009, so as to preclude subsequent demand
for jury trial.-Herb v. Metropolitan Hospital
& Dispensary (Sup.) 552.
Under Code Civ. Proc. §§ 970, 974, failure to
demand jury by making motion to settle issues
and 114 New York State Reporter
general rule
Metropolitan
held not a waiver of jury trial;
No. 31 not applying.-Herb v.
Hospital & Dispensary (Sup.) 552.
Under Code Civ. Proc. § 970, defendant, hav-
ing right to jury trial on issues raised by
counterclaim, held entitled to have his motion
for their settlement granted.-Herb v. Metro-
politan Hospital & Dispensary (Sup.) 552.
Under Code Civ. Proc. §§ 501, 507, 968, 974,
defendant in purchase-money mortgage fore-
closure, interposing counterclaim for breach of
covenant, held entitled to jury trial.-Herb v.
Metropolitan Hospital & Dispensary (Sup.) 552.
The offense of petit larceny is a misdemeanor,
and a defendant charged therewith is not en-
titled to a trial by jury under Old Const. §
23, art. 6 (Const. 1894, § 23, art. 6), providing
that courts of special sessions shall have such
jurisdiction of offenses of the grade of misde-
meanor as may be prescribed by law.-People
v. Stein (Sup.) 847.
§ 2. Competency of jurors, challenges,
and objections.
Juror held disqualified, on account of previ-
ously formed opinion, under Code Cr. Proc. §
376.-People v. Miller (Sup.) 1070.
Failure to set aside jurors, disqualified un-
der Code Cr. Proc. § 376, held reversible er-
ror.-People v. Miller (Sup.) 1070.
Disqualification of juror, under Code Cr. Proc.
$ 376, on account of previously formed opinion,
held not removed.-People v. Miller (Sup.) 1070.
JUSTICES OF THE PEACE.
1. Procedure in civil cases.
That justice of the peace communicated with
jury after they have retired held not ground for
new trial.--Welker v. Allen (Co. Ct.) 382.
stitute a holding over by the tenant, so as to
render him liable to further_rent.-Brennan v.
City of New York (Sup.) 247.
Facts held to constitute an acceptance of a
lessee's surrender, precluding the landlord from
recovering rent for the remainder of the term.—
Crane v. Edwards (Sup.) 747.
An agreement assigning a lease construed to
contemplate securing for assignee the right to
occupy premises for five years, and not the ob-
taining of one lease for that time.-Newman v.
Tolmie (Sup.) 990.
The construction of an agreement to obtain
a lease held a matter for the court.-Newman
v. Tolmie (Sup.) 990.
An agreement to secure a renewal of a lease
held to imply a renewal at the same rental.-
Newman v. Tolmie (Sup.) 990.
§ 3. Premises, and enjoyment and use
in sidewalk adjoining premises held to depend
Liability of a landlord for defect in coal hole
on whether the coal hole was in a defective or
unsafe condition at the time he parted with
possession to the tenant.--Matthews v. City of
New York (Sup.) 360.
In an action for injuries sustained by a pedes-
trian falling into a coal hole in a sidewalk, the
evidence held to justify a finding that the hole
was in a dangerous condition at the time the
owner of the adjoining premises leased them
and parted with possession to his tenant.-
Matthews v. City of New York (Sup.) 360.
4. Rent and advances.
Warrant in summary proceedings held not to
estop landlord from recovering rent up to the
time it was issued.-Adler v. Kramer (Sup.)
624.
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 v.
Loft (Sup.) 1015.
An injunction held properly granted, under
Of vicious propensities of animal, see "Ani- Code Civ. Proc. § 2265, to restrain the execu-
mals."
tion of a warrant of removal in summary pro-
ceedings.-Kazis v. Loft (Sup.) 1015.
LAW OF THE ROAD.
See "Highways," § 2.
For sale of intoxicating liquors, see "Intoxi-
cating Liquors," § 1.
LETTERS PATENT.
For inventions, see "Patents."
LIBEL AND SLANDER.
§ 1. Words and acts actionable, and
liability therefor.
a gang of
A publication that there was
blackmailers in an association of which plain-
tiff was an officer held not libelous as to plain-
tiff.-Hauptner v. White (Sup.) 895.
bankruptcy.
of proceedings in
"Bankruptcy." § 1.
Particular classes of liens.
Of bank on stock, see "Banks and Banking,"
§ 1.
Of broker, see "Brokers," § 2.
Pledge, see "Pledges."
LIFE ESTATES.
See "Dower"; "Remainders."
Creation by will, see "Wills," § 7.
LIMITATION OF ACTIONS.
Against stockholders, see "Corporations," § 2.
§ 1. Statutes of limitation.
Amendment of statute of limitations cannot
- In re Guttroff's Estate (Sur.)
§ 2. Justification and mitigation.
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
ritating matters does not justify the publica-
tion of a libel concerning plaintiff.-Xavier v.
Oliver (Sup.) 225.
Under Code Civ. Proc. § 536, the defendant
in an action for libel may allege as a partial de-
fense that the plaintiff had published certain
irritating matters of defendant or of his news-
paper.-Xavier v. Oliver (Sup.) 225.
Allegations of separate defenses of privi-
lege and justification in an action for libel held
not to constitute an admission that the matter
published referred to plaintiff.-Hauptner v.
White (Sup.) 895.
Where, in an action for libel, the publication
did not bear out the innuendo, it was insuffi-
cient for plaintiff simply to allege, as author-
ized by Code Civ. Proc. § 535, that the de-
famatory matter was published concerning him.
-Hauptner v. White (Sup.) 895.
Expression of court in action for libel held not
reversible error.-Brandt v. Morning Journal
Ass'n (Sup.) 1002.
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.
In libel, if it be shown that the publication
was malicious, exemplary damages are allow-
able.-Brandt v. Morning Journal Ass'n (Sup.)
1002.
In an action for libel, held error to have left
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.
An amendment to a statute of limitations
may lawfully be retroactive.-In re Moench's
Estate (Sur.) 222.
§ 2. Computation of period of limita-
Facts held to show not a single cause of ac-
tion, but several, for services, as regards the
statute of limitations.-Shafer v. Pratt (Sup.)
109.
Facts held to show a single cause of action
for services, as regards the statute of limita-
tions.-Shafer v. Pratt (Sup.) 109.
3. Acknowledgment,
and part payment.
Facts held not to show payment on claims
barred by limitations.-Shafer v. Pratt (Sup.)
109.
Credits of interest on an account of a third
person, not shown to have been authorized or
acquiesced in by the holder of certain notes,
held insufficient to suspend the statute of lim-
itations.-Kirkpatrick v. Goldsmith (Sup.) 835.
LIMITATION OF LIABILITY.
Of carrier, see "Carriers," §§ 1, 2.
LIMITED PARTNERSHIP.
See "Partnership," § 4.
LIQUOR SELLING.
See "Intoxicating Liquors."
Employer held to have ground for discharging
Jurisdiction of offense, see "Criminal Law," § 1. servant.-Hutchinson v. Washburn (Sup.) 691.
LOST INSTRUMENTS.
Master held not liable to servant's assignee
for amount represented by wage coupons lost by
servant.-Clayton v. Knox (Sup.) 242.
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-
ages.-Hutchinson v. Washburn (Sup.) 691.
§ 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.
3. Master's liability for injuries to
servant.
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," § 3.
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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-
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.
In an action for injuries to a servant, caused
by the falling of an elevator, evidence held to
justify a finding that defendant had not prop-
erly inspected the same.-Swenson v. Metropoli-
tan St. Ry. Co. (Sup.) 281.
A steamship company, which sent an employé
onto a barge owned by another party to assist
in hauling it into position alongside the steamer,
held not liable for an injury to such employé,
caused by a defect in the deck of the barge.-
Huebner v. Hammond (Sup.) 295.
Complaint in action for death of servant,
brought under Laws 1902, c. 600, held not to
state cause of action.-Gmaehle v. Rosenberg
(Sup.) 705.
The contributory negligence of a servant,
killed by a revolving shaft, held a question for
the jury-Levy v. Grove Mills Paper Co.
(Sup.) 730.
To lower court on decision on appeal, see "Ap- being caught by a revolving shaft, evidence held
In an action for the death of a servant by
peal," § 8.
to justify a verdict for plaintiff.-Levy v. Grove
Mills Paper Co. (Sup.) 730.
Purchases by brokers on margins, see "Bro- pole before sending a servant to the top of it.—
kers," § 1.
See "Divorce"; "Husband and Wife."
MARRIED WOMEN.
See "Husband and Wife."
MASTER AND SERVANT.
Employés of municipal corporations, see "Mu-
nicipal Corporations," § 4.
Liability of carrier for assault by conductor on
passenger, see "Carriers," § 2.
It is the duty of an employer to inspect the
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-
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
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
pole, has a right to use such of the appliances
furnished as appear to be reasonably safe to
the performance of the task.-Walsh v. New
York & Q. C. Ry. Co. (Sup.) 767.
A servant who, in the discharge of his du-
ties ascends a telegraph pole, is not bound to
brace the pole, unless the danger of proceed-
ing otherwise is obvious.-Walsh v. New York
& Q. C. Ry. Co. (Sup.) 767.
Rottenness of telegraph pole held proximate
cause of injury to lineman.-Walsh v. New
York & Q. C. Ry. Co. (Sup.) 767.
A servant, killed by falling into a cistern
which he was cleaning, held to have assumed
the risk.-Willdigg v. Knox (Sup.) 1018.
The death of a telegraph lineman, caused by
his being thrown from a falling pole,_held_the
result of his contributory negligence.-Leach_v.
Central New York Telephone & Telegraph Co.
(Sup.) 1037.
An employé seeking to recover for injuries
held to have assumed the risk of the dangers
incident to his employment.-Gerstner v. New
York Cent. & H. R. R. Co. (Sup.) 1063.
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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
shown to be servant of one of the defendants.
-Moore v. Stainton (Sup.) 244.
MEASURE OF DAMAGES.
See "Damages," § 1.
Complaint for special relief on foreclosure of
mechanic's lien held cognizable only in equity.—
Faville v. Hadcock (Sup.) 23.
Costs in mechanic's lien proceedings seeking
special relief against defective notice of lien
held not governed by Code Civ. Proc. § 3228,
subd. 4.-Faville v. Hadcock (Sup.) 23.
The fact that other notices of lien had been
previously filed, but lost, under Mechanic's Lien
Law, §§ 16, 18, through failure to prosecute, held
not a defense to mechanic's lien foreclosure.-
Clarke v. Heylman (Sup.) 794.
Complaint in proceedings by subcontractor to
foreclose lien held to sufficiently allege affirmance
by owner of contract between plaintiff and con-
tractor.-Clarke v. Heylman (Sup.) 794.
Of damages, see "Libel and Slander," § 2.
MONEY RECEIVED.
Recovery of payment in general, see "Payment,"
§ 2.
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. Groh's Sons
v. Groh (Sup.) 438.
Mortgages of particular species of property.
Personal property, see "Chattel Mortgages."
Trust estates, see "Trusts," § 4.
8 1. Foreclosure by action.
Settlement before trial of issues arising on
counterclaim for breach of covenant held un-
necessary in purchase-money mortgage fore-
closure. Herb v. Metropolitan Hospital & Dis-
pensary (Sup.) 552.
Defendant, though entitled to vacation of final
judgment for mortgage foreclosure, on reversal of
interlocutory judgment sustaining a demurrer to
a defense, held entitled to order of restitution of
the property sold, only in a proceeding to which
the purchaser is a party, after trial of the
issue raised by the answer.--Schieck v. Donohue
(Sup.) 739.
First mortgagee held not estopped to claim
default in payment of interest, as against second
mortgagee and purchaser at foreclosure sale of
second mortgage.-Priest v. Gumprecht (Sup.)
Consideration for agreement to extend first
mortgage to prevent foreclosure of second mort-
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