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Mutual benefit insurance.

license" commissioners is sufficient ground for 14. Where a person became a member of a their refusal to grant a license to sell intoxicatmutual benefit association under an agreement ing liquors, since this is the established way with the person designated in the certificate as for a town to enforce local prohibition, and its beneficiary that the beneficiary should pay all right to enforce it is recognized by Laws 1892, the assessments, and they were so paid, the . 401, $ 41, excluding towns "where the majorbeneficiary acquired a vested interest in the ity of voters have voted for or hereafter vote certificate, and the member could not after- for local prohibition” from the operation of wards make another designation.-Maynard v. that chapter.-People v. Commissioners of ExVanderwerker, (Sup.) 24 N. Y. S. 932, 30 Abb.cise of Warsaw, (Sup.) 24 X. Y. S. 739. N. C. 134.

15. A policy in a mutual benefit society provided that the society would "pay the sum of

JUDGE. $5,000 from the mortuary fund, as hereinafter provided," and that all claims on the mortuary See, also, “Courts;" "Justices of the Peace." fund, arising between stated intervals of assessment, should be paid pro rata out of the next Special term-Authority in chambers. succeeding mortuary call, “but not to exceed

A special term has no authority to the face of each certificate." Held, that there issue a peremptory mandamus at chambers. was no ambiguity, so as to render applicable People v. Donovan, 31 N. E. 1005 135 N. Y. the rule that a policy should be construed most 82, followed.-In re Manning, (Sup.) 24 N. Y. strongly against the insurer, and thereby im- S. 1039. pose an absolute liability on the society for $5,

JUDGMENT. 000, but it was liable only for the pro rata part of the mortuary fund where the reserve fund Collateral attack, see “Specific Performance," was not available. – Gyllenhammer v. Home

2, 3. Ben. Soc., (Com. Pl. N. Y.) 24 N. Y. S. 930.

Papers part of, see "Records." Distribution of assets on winding up affairs.

By confession. 16. In an action by the people to dissolve an

1. A statement for a judgment by confesinsolvent insurance company, where there is a sion, that the amount is due for cattle, horses, judgment providing for closing up its affairs and agricultural implements, rent of' a farm through a receiver and the court, and appoint- paid by plaintiff for defendant, and money ading a referee to take proof of claims against vanced for the conduct of defendant's business the company, it is improper to allow an inter- and support of his family down to the time of vention by beneficiaries under a certificate of making such statement, is a sufficient compliinsurance claiming a certain fund in the hands ance with Code Civil Proc. & 1274, requiring a of the receiver collected on the death of as

statement of "the facts out of which the debt sured, and to appoint another referee to take arose,” which “must show that the sum proof of such claim.-People v. Grand Lodge of fessed is justly due, or to become due."—Weil Empire Order of Mutual Aid, (Sup.) 24 N. Y. y; Hill, (Sup.) 24 N. Y. S. 521; Hill v. Same,

S. 376.

By default-Vacation.

2. A judgment by default will not be vaInsurable, see "Insurance," 3.

cated on the ground that defendant was an in

fant at the time the judgment was rendered, INTERPLEADER.

but the defense of infancy can be interposed

in such case only after procuring an order openWhen allowed.

ing the default, and allowing defendant to In an action to recover certain bales of plead.-Appel v. Brooks, (City Ct. X. Y.) 24 burlap of a warehouse company, it is error to N. Y. S. 100. substitute as defendant a bank claiming the Rendition and entry. burlap invoiced, where the bank alleged that these bales were a part of a large number in favor of plaintiff on the overruling of a demur

3. The entry of an order for judgment in dispute between the bank and various persons; rer to a complaint, with leave to answer on that if it was not entitled to the burlap the payment of costs, is a sufficient compliance warehouse company

was liable to the bank with Code Civil Proc. § 1010, providing that, therefor,-and denied the claim for storage of on a trial by the court, its decision must be the burlap, set up by the warehouse company filed within å certain time after final adjourn-Lawson 'v. Terminal Warehouse Co., (Sup.) ment of the term.-Garland v. Van Rensselaer, 24 N. Y. S. 281.

(Sup.) 24 N. Y. S. 783.

4. An order that a demurrer be overruled, Interpretation.

and that plaintiff have judgment thereon, with Of contract, see “Contracts,” 8.

leave to defendant to answer on payment of costs, is a final order for judgment if the

terms are not accepted, and therefore complies INTOXICATING LIQUORS. with Code Civil Proc. $ 1021, providing that

the decision of the court on the trial of a dePower to refuse license.

murrer must direct the final or interlocutory The fact that the excise commissioners judgment to be entered thereon.-Garland v. of a town were nominated and elected as "no- I Van Rensselaer, (Sup.) 2+ X. Y. S. 783.

1.2 in.y.s.-75


5. In an action tried by the court, where of creditors, and it appears on the second trial the latter in his decision filed directs judgment that there was no such agreement.— Tompkins to be entered in favor of defendants and against v. Hunter, (Sup.) 24 N, Y. S. 8. plaintiff for costs, the clerk has no power to in- 12. A judgment in a summary proceeding sert in the judginent that the case should be by a landlord, dispossessing tenants for nondismissed on the merits."-Card v. Mein-:ke, payment of rent, is conclusive of their liability (Sup.) 24 N. Y. S. 375.

for rent in a subsequent action against them

to collect it.-Grafton v. Brigham, (Sup.) 24 N. Res judicata.

Y. S. 54. 6. An action of foreclosure against the 13. Where the holder of a first mortgage, mortgagor and grantees who assumed the is made party to an action by a second mortsame, and who executed a second mortgage to ga gee to foreclose his mortgage, and neither such mortgagor, in which such grantees plead- answers nor demurs, and a decree is entered ed that their assumption of the inortgage was for the sale of the property and for payment of void for failure of consideration, but in which the second mortgage, he is bound thereby.the mortgagor made no defense, is not a bar to Jacobie v. Mickle, (Sup.) 24 N. Y. S. 87. an action by the latter to foreclose her mort- 14. Where, in eject ment for nonpayment of gage against such grantees.-Revoir v. Barton, rent, judgment is obtained against the party (Sup.) 24 Y. Y. S. 985.

in possession, plaintiff in ejectment can defend 7. A judgment on the merits in favor of his title and possession so acquired against one defendant in an action for injuries caused by claiming title under the lessee, though he was an obstruction on a turnpike, against the per- not a party to the ejectment suit.-Shultes F. son who placed the obstruction there, and in Sickles, (Sup:) 24 N. Y. S. 145. which defendant pleaded contributory negli- Opening and vacating. gence, bars a subsequent action against the turnpike company for the same injuries.

15. A party who had notice of the judgment Featherson v. President, etc., of Newburgh & 14 months before moving, because of collusion C. Turnpike Co., (Sup.) 24 N. Y. S. 603.

of counsel, to vacate the same, is chargeable 8. In an action to recover the value of sidered in determining the motion.—Jones F.

with laches and neglect, which may be con work performed by plaintiff's assignor on certain clothing, defendant introduced in evidence Jones, (Sup.) 24 N. Y. S. 1031. the judgment roll of an action of claim and

16. The special term cannot, on a motion delivery for the articles, wherein defendant

to vacate a judgment, review the decision of was plaintiff and plaintiff's assignor defend- | the referee on which the judgment was enterant, but which in terms only purported to be ed, as such remedy is only by appeal.—Jones v. a “judgment for the plaintifr":"named therein, Jones, (Sup.) 24 Ñ. Y. S. 1031. "and $22.50 costs,' without stating that it Foreign judgment. was against the defendant therein, or that 17. In an action in New York on a judg. he either appeared or was served with sum- ment obtained in Massachusetts, defendant can mons. Held, that this was insufficient to sus- show that he had a valid defense which he set tain a defense of former adjudication or up in the original suit, and that the judgment counterclaim for the amount of such costs.- was obtained by the fraud of plaintiff, who inHecht v. Mothner, (Com. Pl. N. Y.) 24 N. Y. | duced him to abandon the further defense on S. 826.

assurance that he would discontinue the action. 9. Where indemnity is sought by one who –White v. Reid, ($up.) 24 N. Y. S. 290. has been adjudged liable for damages arising 18. Where it appears in an action on a from negligence for which another, as between foreign judgment that the court by which such themselves, was primarily liable, the judgment judgment was rendered had original jurisdiction is evidence in the action brought for indemnity in all civil actions whereof exclusive jurisdiethat plaintiff was liable for the damages, and, tion was not given to some other court, it is when notice was given to defend, of the amount prima facie proof that such court had jurisdic of the damages, but it does not establish which tion of the action in which the judgment sued of the wrongdoers is primarily liable.-City of on was rendered.-Leach v. Linde, (Sup.) 24 New York v. Brady, (Sup.) 24 N. Y. S. 296. N. Y. S. 176.

10. The bond of a trustee appointed by an order of court was conditioned that if the trus

Judicial Notice. tee "will well and faithfully perform and discharge his duties as such trustee, as named in See "Evidence," 1. said order, then this obligation shall be void, else to be and remain in full force and virtue. Held, that a judgment against the executor of

JUDICIAL SALES. the trustee, in favor of his successor, for the recovery of the trust fund, was not conclusive Of decedent's property, see "Executors and Adon the sureties in the trustee's bond.-People

ministrators," 21. v. Donohue, (Sup.) 24 N. Y. S. 437. 11. A judgment of the general term, revers

Refusal to comply with bid-Objections ing a judgment for defendant in an action by

to title. creditors to set aside a transfer of property to 1. The fact that land is sold subject to a secure a creditor, is not conclusive on a new condition without authority in the decree of trial, where such reversal was based on the sale, and the condition is signed by the purassumption that there was an agreement be chaser's son without understanding its effect, tween the debtor and creditor that the debtor will not oblige the purchaser to take the titleshould not make an assignment for the benefit | Recor v. Blackburn, (Sup.) 24 N. Y. S. 692.



2. In partition of land claimed under the I that has not been vacated;" as it is the jug-
will of J., the decree ordered a sale, and de- tice's duty, to vacate the attachment, under
cided that the title was in the devisees of J. section 2016, giving him authority, on his
Held, that the purchaser at the sale would not own motion,' vacate attachment "if he
be compelled to take the title where it ap- deems the papers on which it was granted in-
peared that J.'s husband died seised of the sufficient to authorize it."-Kingsford v. But-
land, and that her title depended entirely on a ler, (Sup.) 24 N. Y. S. 1094.
release by the legislature of the interest of the
state, subject to the rights of her husband's
heirs, and it was not proven that the husband

died an alien, or did not have heirs who could see "Equity,” 5.
inherit the land.-Recor v. Blackburn, (Sup.) 24 In moving to vacate judgment, see "Judgment,” ·
N. Y. S. 692.

See "Courts."

Of criminal prosecution, see "Criminal Law." 1. Counterclaim by tenant in action for rent, see
To enforce maritime lien, see “Admira ty."

"Set-Off and Counterclaim."

Lease signed by person not named therein, sèe

“Contracts," 6.
Misconduct of juror as ground for new trial. Attornment.
see "New Trial," 1.

1. Where judgment in ejectment is ob-
Submission of issues in equity, see "Equity," 8. tained in a durable lease, and possession given
Trial by court without jury, see "Trial," 6. to the plaintiff, a written attornment made by

the defendant in the action and the person in
Waiver of jury trial.

possession is valid.-Shultes v. Sickles, (Sup.)
The objection that a suit in equity can- 24 N. Y. S. 145.
not be maintained because defendant would 2. Where demised premises are sold under
be deprived of his right to a jury trial is foreclosure during the term, the tenant can at-
waived where it is not raised until the be- torn to the purchaser, under 1 Rev. St. (Birds-
ginning of the trial.-O'Brien v. MeCarthy, eye's Ed.) p. 86, 9_16.-Conley v. Schiller, (Co.
(Sup.) 24 N. Y. S. 1108.

Ct.) 24 N. 7, S. 473.

Liability of landlord to tenant.

3. A landlord is not liable to the tenant

for damages to the leasehold by a contractor
Appeal from justice, see “Appeal," 3-5.
Defective service waived, see "Appearance." while excavating on the adjoining lot, merely

who entered the premises to preserve the walls

because the landlord gave the contractor license
1. Laws 1845, c. 180, $ 26, as amended by

to so enter, under Laws 1882, c. 410, $ 474.
Laws 1847, c. 455, providing that a warrant which requires the adjoining lot owner to pre
issued by a magistrate outside of the town

serve the party or other wall when he desires
where an offense is committed suall authorize to excavate to the depth of 10 feet below the
the offender to be taken for trial before a mag

curb.-McKenzie v. Hatton, (Sup.) 24 N. Y.

S. 88.
istrate of the town, and that the magistrate
issuing the warrant shall be entitled to no Leases.
compensation other than for issuing the war- 4. A lease is valid and binding on the
rant, is repealed by Code. Crim. Proc. $$ 150, lessee, who has signed the same, and oc-
151, 158, 161, 164, providing that the offender cupied the premises under it, though it is not
be taken before the magistrate issuing the war signed by the lessor.-Evans v. Conklin, (Sup.)
rant, and such magistrate may i cover from 24 N. Y. S. 1081.
the town fees for trial of the offender. People 5. in a lease of agricultural lands for four
ex rel. Fraser V. Board of Auditors, (Sup.) vears a covenant for quiet enjoyment is im-
2 N. Y. S. 609, followed.-People v. Board of plied, such a lease not being within the inhibi-
Auditors of Hamden, (Sup.) 24 N. Y. S. 974. tion of the statute providing that there shall
Procedure before.

be no implied covenant in a conveyance of land.
2. A justice of the district court of New-Conley v. Schiller, (Co. Ct.) 24 N. Y. S. 473.
York city may enter judgment on a verdict Eviction.
which he has previously assumed to set aside, 6. Where a tenant yields possession to the
since such justice has no authority to set aside purchaser of the property at foreclosure sale
a verdict.-Hecht v. Mothner, (Com. Pl. N. of the landlord's interest, it constitutes an
Y.) 24 N. Y. S. 826.

eviction.--Conley v. Schiller, (Co. Ct.) 24 N. Y.
3. Where the summons is not personally S. 473.
served, and defendant's property is attached 7. Where the tenant remains in possession
under a warrant on an insufficient affidavit, of the entire premises there is no eviction, so
a justice of the peace cannot enter judgment as to abate the payment of rent, though a por-
by default under Code Civil Proc. $ 2918, tion of the building was rendered inaccessible
giving the justice such power, in the absence of by the means adopted for preserving the walls
personal service, only where property "has during excavation on the adjoining lot.-Mc-
been duly attached by virtue of a

Kenzie v. Hatton, (Sup.) 24 N. Y. S. 88.


Possession under execution extinguishes swer, defendant could not prove that defend-

ant's words related to a transaction which was

not itself a larceny.-Sherman v. Rogers, (Sup.)
8. Where plaintiff in ejectment against a

24 N. Y. S. 390.
tenant under a durable lease for nonpayment
of rent is put in possession under execution, Evidence.
his title becomes absolute after six months.-- 6. In an action for a libel charging plain-
Shultes v. Sickles, (Sup.) 24 N. Y. S. 145. tiff with being drunk and beating her chil-

dren, evidence as to plaintiff's condition after

the publication of the libel is inadmissible.-

Tobin v. Sykes, (Sup.) 24 N. Y. S. 943.
See "Landlord and Tenant,” 4, 5.


7. In an action for libel, where defendant

sets up a justification, but fails to establish
See "Wills."

it, the jury may, if they find that it was set

up in bad faith, consider that fact in estimat-
Legacy Tax.

ing damages.-Tobin v. Sykes, (Sup.) 24 N. Y.

S. 943.
See "Descent and Distribution.”

Criminal proceedings.

8. Under Code Crim. Proc. $ 289, providing

that an indictment for jibel need not set forth

any extrinsic facts for the purpose of showing
What actionable.

the application to the party libeled, but may
1. A newspaper article stating that plain- state generally that it was published concert-
tiff, a detective officer, joined in the pursuit of ing him, an indictment need not show by er.
an escaped prisoner: that on the latter's cap: planatory matter the application to complain-
ture plaintiff struck him so that "he dropped ant of a vague and uncertain defamatory let.
like a log;" that the prisoner was handcuffed, ter set out therein, and on which the libel is
douched with cold water, and tossed bodily into predicated.-People v. Stokes, (Gen. Sess. N.
a van; that the spectators cried “Shame!" and Y.) 24 N. Y. S. 727.
called plaintiff a “big brute;" and that the cap- 9. Pen. Code, $ 253, provides that a com-
ture could have been made without such rough munication made to a person entitled to or in-
treatment and free use of plaintiff's fists,-is terested in it, by one who was also interested
libelous.-O'Shaughnessy V. Morning Journal in or entitled to make it, or who stood in such
Ass'n, (Sup.) 24 N. Y. S. 609.

a relation to the former as to afford a reaside
2. Defendant, a taxpayer of the village able ground for supposing his motives innocent,
where the parties resided, published concerning is presumed not to be malicious, and is a "pris.
plaintiff, an attorney, the following: “Make M. ileged communication." Held, that such pre
attorney for the village, so that every person sumption is not conclusive, but may be over
that gets spanked on the ice will be able to ob- come by proof, and therefore it cannot be de
tain a judgment of from $1,000 to $10,000 termined on demurrer to an indictment wheth-
against the village." Held, that the publication er or not the libel set out therein was published
was libelous.—Mattice v. Wilcox, (Sup.) 24 N. in good faith.-People v. Stokes, (Gen. Sess.
Y. S. 1060.

N. Y.) 24 N. Y. S. 727.
3. It is no defense to an action for publish-

Liberty of Speech.
ing an article charging plaintiff with a crime
that the charge was made on information ob- See “Constitutional Law," 4.
tained from others without any express malice
on the part of defendant.-Heyler v. New York

News Pub. Co., (Sup.) 24 N. Y. S. 499.

To sell liquor, see "Intoxicating Liquors."
Privileged communications.
4. Defendant, a taxpayer of the village

where the parties resided, published concerning
plaintiff, an attorney, the following: "Make See “Mechanics' Liens."
M. attorney for the village, so that every Of attorney, see "Attorney and Client," 4.
person that gets spanked on the ice will be of livery stable keeper, see “Livery Stable
able to obtain a judgment of from $1,000 to

$10.000 against the village.' Held, that the of mortgages, see "Mortgages,” 4, 5.
publication was ot privileged.-Mattice v. Wild Of vendor, see "Vendor and Purchaser," 5.
cox, (Sup.) 24 N. Y. S. 1060.
Action-Pleading and proof.

Life Insurance.
5. In an action for slander, in calling plain-
tiff a thief, defendant pleaded a general denial, See “Insurance."
and alleged in mitigation of damages that, at
the time of uttering the words charged, he was
greatly excited, in consequence of charges made LIMITATION OF ACTIONS.
against him by plaintiff, and that the language
used was consequently stronger than it would Claims against decedent's estate, see "Erech-
otherwise have been. Held that, under the an- tors and Administrators,” 5.

Applicability of statute.

in the statutory period. There was little eri-
1. Where, by mistake of a scrivener, a par- that decedent said to his wife, the payee, at the

dence of any payment of money, but evidence
cel of land is omitted from a mortgage, an ac-
tion to reform is not governed by Code Civil time of the indorsement, “There;' the note is
Proc. $ 382, subd. 5, providing that an action to all right now. My indorsement makes it all
recover a judgment, other than for a sum of right." Held insufficient to bar the statute.-
money, on the ground of fraud, may be brought In re Clapsaddle's Estate, (Surr.) 24 N. Y. S.
within six years after discovering the fraud, 313, 4 Misc. Rep. 355.
but an action must be brought under section Part payment.
388 within ten years from the delivery of the
mortgage.--Sprague v. Cochran, (Sup.) 24 N. Y. hay to the pavee of a note, as a part payment

6. On an issue as to whether a delivers of
S. 369.

thereon, was by the surety on the note, so as
Running of statute.

to remove the bar of limitations as against
2. Legatees of the remainder of an estate him, the principal maker testified that the hay
assigned to plaintiffs all their interest in cer-

was his property, and that it came from a farm
tain money in the hands of the executor. More rented by him from the surety, on which both
than 21 years after the assignment, and 5

were living. There was evidence that the
months after the death of the life tenant, plain- payee sent to the farm for a load of hay in the
tiffs brought an action against the administra- maker's absence, and that the surety said she
trix with the will annexed to recover the money. loads of hay were delivered to the payee at dif-

could have it when he came home. Severa
Held, that the statute of limitations did not be- ferent times, which were all understood by the
gin to run until the death of the life, tenant.-surety to be payments by the maker on the
Matson v. Abbey, (Sup.) 24 N. Y. S. 284.
3. A person having an individual interest in hay was not made by the surety:-In re San-

land declined to join as plaintiff in an action ders’ Estate, (Surr.) 24 N. Y. s. 317, 4 Misc.
by the co-owner for injuries thereto, and was Rep. 343; In re Farrington, Id.
made a defendant. Afterwards the codefend-
ant died, and an order was entered making his
representatives parties defendant, without sup-

Limiting Liability.
plemental summons or complaint. The new de-
fendants then served their answer on all the

See "Carriers," 8.
other parties. Held that, so far as related to
the statute of limitations, the action was com-

Liquor Seiling.
menced as to the deceased defendant, and con-
sequently as to his representatives also. at the See “Intoxicating Liquors.”
same time that it was commenced against the
other defendants.-Knapp v. New York El. R.

Co., (Super. N. Y.) 24 N. Y. S. 324.

4. In an action to rescind a sale of cor- Cancellation.
porate stock, made in 1865, for fraud, plain-

han undertaking in discharge of
tiff claimed that, as he did not discover the a mechanic's lien after action was brought
fra ud until 1889, he had a right of action un-
der Code Civil Proc. $ 382, subd. 5, providing has been given as provided by Laws 1885, c.

to foreclose, and notice of lis pendens tiled,
that in an action based on fraud, other than 342, § 24, subd. 6, a motion to cancel the lis
for a sum of money, the cause of action is pendens will not lie, as Code Civil Proc. $
not deemed to have accrued until the dis- 1674, authorizing such relief, only applies
covery by plaintiff of the facts constituting (1) where the action is settled, discontinued,
the fraud; but there was evidence that no divi-

or abated, or final judgment rendered against
dends or assessments were made on the stock; the party filing the notice, and the time to
that plaintiff was business man, residing

appeal has expired; (2) where plaintiff filing
in the same city as the officers of the corpora- the notice unreasonably neglects to proceed;
tion; that at any time he could have ascertain-and (3) in a judgment creditor's action, where
ed by inquiry when the company stopped work; the amount is paid into court, or a bond there
and that he was satisfied in 1871 that he had for is filed. --Murray v. Barth, (Super. N. Y.)
lost his money: Held, that the delay of plain: 24 N. Y. S. 921.
tiff from 1871 to 1889 showed a want of
reasonable diligence, and that the action was
barred, as the statute of limitations began to

from the time when knowledge of the
fraud ought, by reasonable diligence, to have Lien-Notice of charges.
been obtained. 17 N. Y. S. 696, followed.-

Where the owner of a horse, in the
Higgins v. Crouse, (Sup.) 24 N. Y. S. 1080. keeping of plaintiff, a livery stable keeper, ob-

tained possession thereof by fraud, without

paying plaintiff's charges, plaintiff may recover
5. Code Civil Proc. $ 395, provides that possession of the horse, though he has not
an acknowledgment or promise in writing, given the notice mentioned in Laws 1892, c.
signed by the party to be charged, is the only 91, which provides that one who keeps an
competent evidence of a new contract to take animal under an agreement with the owner

ca se out of the statute of limitations, but may detain it until his charges are paid: "pro-
that the section shall not alter the effect of a vided, however, that notice in writing shall
A note against a decedent, harred by first be given to such owner

of the
the statute, showed an indorsement of $50 with-l amount of such charges and the intention to




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