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Mutual benefit insurance.

14. Where a person became a member of a mutual benefit association under an agreement with the person designated in the certificate as beneficiary that the beneficiary should pay all the assessments, and they were so paid, the beneficiary acquired a vested interest in the certificate, and the member could not afterwards make another designation.-Maynard v. Vanderwerker, (Sup.) 24 N. Y. S. 932, 30 Abb. N. C. 134.

15. A policy in a mutual benefit society provided that the society would "pay the sum of $5,000 from the mortuary fund, as hereinafter provided," and that all claims on the mortuary fund, arising between stated intervals of assessment, should be paid pro rata out of the next succeeding mortuary call, "but not to exceed the face of each certificate." Held, that there was no ambiguity, so as to render applicable the rule that a policy should be construed most strongly against the insurer, and thereby impose an absolute liability on the society for $5,000, but it was liable only for the pro rata part of the mortuary fund where the reserve fund was not available. - Gyllenhammer v. Home Ben. Soc., (Com. Pl. N. Y.) 24 N. Y. S. 930. Distribution of assets on winding up affairs.

license" commissioners is sufficient ground for their refusal to grant a license to sell intoxicating liquors, since this is the established way for a town to enforce local prohibition, and its right to enforce it is recognized by Laws 1892, c. 401, § 41, excluding towns "where the majority of voters have voted for or hereafter vote for local prohibition" from the operation of that chapter.-People v. Commissioners of Excise of Warsaw, (Sup.) 24 N. Y. S. 739.

JUDGE.

See, also, "Courts;" "Justices of the Peace."
Special term-Authority in chambers.
A special term has no authority to
issue a peremptory mandamus at chambers.
People v. Donovan, 31 N. E. 1009, 135 N. Y.
82, followed.-In re Manning, (Sup.) 24 N. Y.
S. 1039.
JUDGMENT.

Collateral attack, see "Specific Performance,"
2, 3.

Papers part of, see "Records."

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 which "must show that the sum consured, and to appoint another referee to take arose, 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., Hill, (Sup.) 24 N. Y. S. 521; Hill v. Same,

S. 376.

Interest.

Insurable, see "Insurance," 3.

INTERPLEADER.

When allowed.
In an action to recover certain bales of
burlap of a warehouse company, it is error to
substitute as defendant a bank claiming the
burlap invoiced, where the bank alleged that
these bales were a part of a large number in
dispute between the bank and various persons;
that if it was not entitled to the burlap the
warehouse company was liable to the bank
therefor, and denied the claim for storage of
the burlap, set up by the warehouse company.
-Lawson v. Terminal Warehouse Co., (Sup.)
24 N. Y. S. 281.

Interpretation.

Of contract, see "Contracts," 8.

INTOXICATING LIQUORS.

Power to refuse license.

The fact that the excise commissioners of a town were nominated and elected as "noV.2IN.Y.S.-75

Id.

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By default-Vacation.

2. A judgment by default will not be vacated on the ground that defendant was an infant at the time the judgment was rendered, but the defense of infancy can be interposed in such case only after procuring an order opening the default, and allowing defendant plead.-Appel v. Brooks, (City Ct. N. Y.) 24 N. Y. S. 100.

Rendition and entry.

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favor of plaintiff on the overruling of a demur3. The entry of an order for judgment in rer to a complaint, with leave to answer on payment of costs, is a sufficient compliance with Code Civil Proc. § 1010, providing that, on a trial by the court, its decision must be filed within a certain time after final adjournment of the term.-Garland v. Van Rensselaer, (Sup.) 24 N. Y. S. 783.

4. An order that a demurrer be overruled, and that plaintiff have judgment thereon, with leave to defendant to answer on payment of costs, is a final order for judgment if the terms are not accepted, and therefore complies with Code Civil Proc. § 1021, providing that the decision of the court on the trial of a demurrer must direct the final or interlocutory judgment to be entered thereon.-Garland v. Van Rensselaer, (Sup.) 24 N. Y. S. 783.

5. In an action tried by the court, where the latter in his decision filed directs judgment to be entered in favor of defendants and against plaintiff for costs, the clerk has no power to insert in the judginent that the case should be dismissed "on the merits."-Card v. Meineke, (Sup.) 24 N. Y. S. 375.

Res judicata.

6. An action of foreclosure against the mortgagor and grantees who assumed the same, and who executed a second mortgage to such mortgagor, in which such grantees pleaded that their assumption of the mortgage was void for failure of consideration, but in which the mortgagor made no defense, is not a bar to an action by the latter to foreclose her mortgage against such grantees.-Revoir v. Barton, (Sup.) 24 N. Y. S. 985.

7. A judgment on the merits in favor of defendant in an action for injuries caused by an obstruction on a turnpike, against the person who placed the obstruction there, and in which defendant pleaded contributory negligence, bars a subsequent action against the turnpike company for the same injuries.Featherson v. President, etc., of Newburgh & C. Turnpike Co., (Sup.) 24 N. Y. S. 603.

8. In an action to recover the value of work performed by plaintiff's assignor on certain clothing, defendant introduced in evidence the judgment roll of an action of claim and delivery for the articles, wherein defendant was plaintiff and plaintiff's assignor defendant, but which in terms only purported to be a "judgment for the plaintiff named therein, "and $22.50 costs," without stating that it was against the defendant therein, or that he either appeared or was served with summons. Held, that this was insufficient to sustain a defense of former adjudication or a counterclaim for the amount of such costs.Hecht v. Mothner, (Com. Pl. N. Y.) 24 N. Y. S. 826.

9. Where indemnity is sought by one who has been adjudged liable for damages arising from negligence for which another, as between themselves, was primarily liable, the judgment is evidence in the action brought for indemnity that plaintiff was liable for the damages, and, when notice was given to defend, of the amount of the damages, but it does not establish which of the wrongdoers is primarily liable.-City of New York v. Brady, (Sup.) 24 N. Y. S. 296.

of creditors, and it appears on the second trial that there was no such agreement.-Tompkins v. Hunter, (Sup.) 24 N. Y. S. 8.

12. A judgment in a summary proceeding by a landlord, dispossessing tenants for nonpayment of rent, is conclusive of their liability for rent in a subsequent action against them to collect it.-Grafton v. Brigham, (Sup.) 24 N. Y. S. 54.

13. Where the holder of a first mortgage, is made party to an action by a second mortgagee to foreclose his mortgage, and neither answers nor demurs, and a decree is entered for the sale of the property and for payment of the second mortgage, he is bound thereby.Jacobie v. Mickle, (Sup.) 24 N. Y. S. 87. 14. Where, in ejectment for nonpayment of rent, judgment is obtained against the party in possession, plaintiff in ejectment can defend his title and possession so acquired against one claiming title under the lessee, though he was not a party to the ejectment suit.-Shultes v. Sickles, (Sup:) 24 N. Y. S. 145. Opening and vacating.

15. A party who had notice of the judgment 14 months before moving, because of collusion of counsel, to vacate the same, is chargeable with laches and neglect, which may be considered in determining the motion.-Jones v. Jones, (Sup.) 24 N. Y. S. 1031.

16. The special term cannot, on a motion to vacate a judgment, review the decision of the referee on which the judgment was entered, as such remedy is only by appeal.-Jones v. Jones, (Sup.) 24 N. Y. S. 1031. Foreign judgment.

17. In an action in New York on a judg ment obtained in Massachusetts, defendant can show that he had a valid defense which he set up in the original suit, and that the judgment was obtained by the fraud of plaintiff, who in duced him to abandon the further defense on assurance that he would discontinue the action. -White v. Reid, (Sup.) 24 N. Y. S. 290.

18. Where it appears in an action on a foreign judgment that the court by which such judgment was rendered had original jurisdiction in all civil actions whereof exclusive jurisdic tion was not given to some other court, it is prima facie proof that such court had jurisdic tion of the action in which the judgment sued on was rendered.-Leach v. Linde, (Sup.) 24 N. Y. S. 176.

Judicial Notice.

10. The bond of a trustee appointed by an order of court was conditioned that if the trustee "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 the trustee, in favor of his successor, for the recovery of the trust fund, was not conclusive on the sureties in the trustee's bond.-People v. Donohue, (Sup.) 24 N. Y. S. 437.

11. A judgment of the general term, reversing a judgment for defendant in an action by creditors to set aside a transfer of property to secure a creditor, is not conclusive on a new trial, where such reversal was based on the assumption that there was an agreement be tween the debtor and creditor that the debtor should not make an assignment for the benefit

JUDICIAL SALES.

Of decedent's property, see "Executors and Administrators," 21.

Refusal to comply with bid-Objections to title.

1. The fact that land is sold subject to a condition without authority in the decree of sale, and the condition is signed by the purchaser's son without understanding its effect, will not oblige the purchaser to take the title.Recor v. Blackburn, (Sup.) 24 N. Y. S. 692.

2. In partition of land claimed under the will of J., the decree ordered a sale, and decided that the title was in the devisees of J. Held, that the purchaser at the sale would not be compelled to take the title where it appeared that J.'s husband died seised of the land, and that her title depended entirely on a 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 inherit the land.-Recor v. Blackburn, (Sup.) 24

N. Y. S. 692.

See "Courts."

Jurisdiction.

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

JURY.

Misconduct of juror as ground for new trial.
see "New Trial," 1.
Submission of issues in equity, see "Equity," 8.
Trial by court without jury, see "Trial," 6.
Waiver of jury trial.

The objection that a suit in equity cannot be maintained because defendant would be deprived of his right to a jury trial is waived where it is not raised until the beginning of the trial.-O'Brien v. McCarthy, (Sup.) 24 N. Y. S. 1108.

JUSTICES OF THE PEACE. Appeal from justice, see "Appeal," 3-5. Defective service waived, see "Appearance." Fees.

1. Laws 1845, c. 180, § 26, as amended by Laws 1847, c. 455, providing that a warrant issued by a magistrate outside of the town where an offense is committed suall authorize the offender to be taken for trial before a mag istrate of the town, and that the magistrate issuing the warrant shall be entitled to no compensation other than for issuing the warrant, is repealed by Code Crim. Proc. $$ 150, 151, 158, 161, 164, providing that the offender be taken before the magistrate issuing the war rant, and such magistrate may cover from the town fees for trial of the offender. People ex rel. Fraser v. Board of Auditors, (Sup.) 2 N. Y. S. 609, followed.-People v. Board of Auditors of Hamden, (Sup.) 24 N. Y. S. 974. Procedure before.

"Set-Off and Counterclaim."

Lease signed by person not named therein, see "Contracts," 6.

Attornment.

1. Where judgment in ejectment is obtained in a durable lease, and possession given to the plaintiff, a written attornment made by the defendant in the action and the person in possession is valid.-Shultes v. Sickles, (Sup.) 24 N. Y. S. 145.

2. Where demised premises are sold under foreclosure during the term, the tenant can attorn to the purchaser, under 1 Rev. St. (Birdseye's Ed.) p. 86, § 16.-Conley v. Schiller, (Co. Ct.) 24 N. Y. S. 473.

Liability of landlord to tenant.

3. A landlord is not liable to the tenant for damages to the leasehold by a contractor who entered the premises to preserve the walls while excavating on the adjoining lot, merely because the landlord gave the contractor license to so enter, under Laws 1882, c. 410, § 474, which requires the adjoining lot owner to preserve the party or other wall when he desires to excavate to the depth of 10 feet below the curb.-McKenzie v. Hatton, (Sup.) 24 N. Y. S. 88.

Leases.

4. A lease is valid and binding on the lessee, who has signed the same, and Occupied the premises under it, though it is not signed by the lessor.-Evans v. Conklin, (Sup.) 24 N. Y. S. 1081.

5. In a lease of agricultural lands for four vears a covenant for quiet enjoyment is implied, such a lease not being within the inhibition of the statute providing that there shall 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, since such justice has no authority to set aside a verdict.-Hecht v. Mothner, (Com. Pl. N. Y.) 24 N. Y. S. 826.

6. Where a tenant yields possession to the purchaser of the property at foreclosure sale of the landlord's interest, it constitutes an eviction.-Conley v. Schiller, (Co. Ct.) 24 N. Y. S. 473.

3. Where the summons is not personally 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 porby 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.-Mcbeen duly attached by virtue of a warrant Kenzie v. Hatton, (Sup.) 24 N. Y. S. 88.

Possession under execution extinguishes swer, defendant could not prove that defendlease.

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1. A newspaper article stating that plaintiff, a detective officer, joined in the pursuit of an escaped prisoner; that on the latter's capture plaintiff struck him so that "he dropped like a log;" that the prisoner was handcuffed, douched with cold water, and tossed bodily into a van; that the spectators cried "Shame!" and called plaintiff a "big brute;" and that the capture could have been made without such rough treatment and free use of plaintiff's fists,-is libelous. O'Shaughnessy v. Morning Journal Ass'n, (Sup.) 24 N. Y. S. 609.

2. Defendant, a taxpayer of the village where the parties resided, published concerning plaintiff, an attorney, the following: "Make M. attorney for the village, so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village." Held, that the publication was libelous.-Mattice v. Wilcox, (Sup.) 24 N. Y. S. 1060.

Malice.

ant's words related to a transaction which was not itself a larceny.-Sherman v. Rogers, (Sup.) 24 N. Y. S. 390.

Evidence.

6. In an action for a libel charging plaintiff with being drunk and beating her children, evidence as to plaintiff's condition after the publication of the libel is inadmissible.— Tobin v. Sykes, (Sup.) 24 N. Y. S. 943. Damages.

7. In an action for libel, where defendant sets up a justification, but fails to establish it, the jury may, if they find that it was set up in bad faith, consider that fact in estimating damages.-Tobin v. Sykes, (Sup.) 24 N. Y. S. 943.

Criminal proceedings.

8. Under Code Crim. Proc. § 289, providing that an indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled, but may state generally that it was published concerning him, an indictment need not show by explanatory matter the application to complainant of a vague and uncertain defamatory letter set out therein, and on which the libel is predicated.-People v. Stokes, (Gen. Sess. N. Y.) 24 N. Y. S. 727.

9. Pen. Code. § 253, provides that a communication made to a person entitled to or interested in it, by one who was also interested in or entitled to make it, or who stood in sneh a relation to the former as to afford a reasonable ground for supposing his motives innocent, is presumed not to be malicious, and is a "priv ileged communication." Held, that such presumption is not conclusive, but may be overcome by proof, and therefore it cannot be de termined on demurrer to an indictment wheth er or not the libel set out therein was published in good faith.-People v. Stokes, (Gen. Sess. N. Y.) 24 N. Y. S. 727.

Liberty of Speech.

3. It is no defense to an action for publishing 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. Privileged communications.

4. Defendant, a taxpayer of the village where the parties resided, published concerning plaintiff, an attorney, the following: "Make M. attorney for the village, so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10.000 against the village." Held, that the publication was not privileged.-Mattice v. Wilcox, (Sup.) 24 N. Y. S. 1060.

Action-Pleading and proof.

License.

To sell liquor, see "Intoxicating Liquors."

Liens.

See "Mechanics' Liens."

Of attorney, see "Attorney and Client," 4.
Of livery stable keeper, see "Livery Stable
Keepers."
Of mortgages, see "Mortgages," 4, 5.
Of vendor, see "Vendor and Purchaser," 5.

Life Insurance.

5. In an action for slander, in calling plaintiff 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 against him by plaintiff, and that the language used was consequently stronger than it would otherwise have been. Held that, under the an

LIMITATION OF ACTIONS.

Claims against decedent's estate, see "Executors and Administrators," 5.

Applicability of statute.

1. Where, by mistake of a scrivener, a parcel of land is omitted from a mortgage, an action to reform is not governed by Code Civil Proc. 382, subd. 5, providing that an action to recover a judgment, other than for a sum of money, on the ground of fraud, may be brought within six years after discovering the fraud, but an action must be brought under section 388 within ten years from the delivery of the mortgage.-Sprague v. Cochran, (Sup.) 24 N. Y.

S. 369.

Running of statute.

2. Legatees of the remainder of an estate assigned to plaintiffs all their interest in certain money in the hands of the executor. More than 21 years after the assignment, and 5 months after the death of the life tenant, plaintiffs brought an action against the administratrix with the will annexed to recover the money. Held, that the statute of limitations did not begin to run until the death of the life tenant.Matson v. Abbey, (Sup.) 24 N. Y. S. 284.

in the statutory period. There was little evi-
that decedent said to his wife, the payee, at the
dence of any payment of money, but evidence
time of the indorsement, "There; the note is
all right now. My indorsement makes it all
right." Held insufficient to bar the statute.-
In re Clapsaddle's Estate, (Surr.) 24 N. Y. S.
313, 4 Misc. Rep. 355.
Part payment.

6. On an issue as to whether a delivery of hay to the payee of a note, as a part payment thereon, was by the surety on the note, so as to remove the bar of limitations as against him, the principal maker testified that the hay was his property, and that it came from a farm rented by him from the surety, on which both were living. There was evidence that the payee sent to the farm for a load of hay in the maker's absence, and that the surety said she loads of hay were delivered to the payee at difcould have it when he came home. Several ferent times, which were all understood by the surety to be payments by the maker on the hay was not made by the surety. In re Sannote. Held, that the payment by delivery of ders' Estate, (Surr.) 24 N. Y. S. 317, 4 Misc. Rep. 343; In re Farrington, Id.

Limiting Liability.

3. A person having an individual interest in land declined to join as plaintiff in an action by the co-owner for injuries thereto, and was made a defendant. Afterwards the codefendant died, and an order was entered making his representatives parties defendant, without supplemental summons or complaint. The new defendants 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 commenced as to the deceased defendant, and consequently 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 Ñ. Y. S. 324.

4. In an action to rescind a sale of corporate stock, made in 1865, for fraud, plaintiff claimed that, as he did not discover the fraud until 1889, he had a right of action under Code Civil Proc. § 382, subd. 5, providing that in an action based on fraud, other than for a sum of money, the cause of action is not deemed to have accrued until the discovery by plaintiff of the facts constituting the fraud; but there was evidence that no dividends or assessments were made on the stock; that plaintiff was a business man, residing in the same city as the officers of the corporation; that at any time he could have ascertained by inquiry when the company stopped work; and that he was satisfied in 1871 that he had lost his money. Held, that the delay of plain tiff from 1871 to 1889 showed a want of reasonable diligence, and that the action was barred, as the statute of limitations began to run from the time when knowledge of the fraud ought, by reasonable diligence, to have been obtained. 17 N. Y. S. 696, followed.Higgins v. Crouse, (Sup.) 24 N. Y. S. 1080. Acknowledgment.

5. Code Civil Proc. § 395, provides that an acknowledgment or promise in writing, signed by the party to be charged, is the only competent evidence of a new contract to take case out of the statute of limitations, but that the section shall not alter the effect of a payment. A note against a decedent, barred by the statute, showed an indorsement of $50 with

a

Liquor Selling.

LIS PENDENS.

Cancellation.

han undertaking in discharge of a mechanic's lien after action was brought to foreclose, and notice of lis pendens filed, has been given as provided by Laws 1885, c. 342, § 24, subd. 6, a motion to cancel the lis pendens will not lie, as Code Civil Proc. § 1674, authorizing such relief, only applies (1) where the action is settled, discontinued, or abated, or final judgment rendered against the party filing the notice, and the time to appeal has expired; (2) where plaintiff filing the notice unreasonably neglects to proceed; and (3) in a judgment creditor's action, where the amount is paid into court, or a bond therefor is filed.-Murray v. Barth, (Super. N. Y.) 24 N. Y. S. 921.

LIVERY STABLE KEEPERS. Lien-Notice of charges.

Where the owner of a horse, in the keeping of plaintiff, a livery stable keeper, obtained possession thereof by fraud, without paying plaintiff's charges, plaintiff may recover possession of the horse, though he has not given the notice mentioned in Laws 1892, c. 91, which provides that one who keeps an animal under an agreement with the owner may detain it until his charges are paid: "provided, however, that notice in writing shall first be given to such owner of the amount of such charges and the intention to

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