4 Merger and bar of causes of action | Special jurisdictions and jurisdictions of partic and defenses. ular classes of courts. *Where two proceedings are pending between See Courts; Equity, § 1. the same parties for the same object, and the first proceeding has ripened into judgment, it is a bar to the second proceeding, though an appeal is pending.-In re Moran (Sur.) 207. Appellate jurisdiction, see Criminal Law, § 6. Justices' courts in civil cases, see Justices of the Peace, § 1. JURY. 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. A decree for specific performance of a con- § 1. Right to trial by jury. tract to convey is not res judicata of a sub- *Issues as to whether bankrupt rendered servsequent action for damages for defendant's re-ices to defendant at its request, and the value fusal to convey as required by the decree, where thereof, were properly triable by a jury.--Breck it was not known at the former trial that de- v. United States Title Guaranty & Indemnity fendant would not comply with the decree. Co. (Sup.) 756. Will v. Barnwell (Sup.) 462. 6. Foreign judgments. *An English judgment, though pronounced through a resort to presumptive evidence at variance with the rule of New York, held entitled to full force and effect.-Newton v. Hunt (Sup.) 573. *Where the receipt of a loan by mortgagors. who were the cestui ques trust of a trust deed of the property mortgaged, has been established by an English judgment as against them, the question held not open to dispute by the trustees, notwithstanding their nonjoinder.Newton v. Hunt (Sup.) 573. JUDICIAL NOTICE. In civil actions, see Evidence, § 1. See Constitutional Law, § 2. JUDICIAL SALES. Partition sales, see Partition, § 1. 27. There is no remedy against the purchaser under a judicial sale, except in the action under which the sale was had.-State Bank v. Wilchinsky (Sup.) 1002. JURISDICTION. Effect of appearance, see Appearance. Objections to jurisdiction as ground for abatement, see Abatement and Revival, § 1. Showing jurisdiction of appellate court in appeal record, see Appeal and Error, § 3. Jurisdiction of particular actions or proceedings. See Divorce, § 2; Mandamus, § 1. Accounting by personal representative, see An action at law in the City Court becomes an equitable one by interpleader, under Code Civ. Proc. § 820, triable without a jury at any Trial Term when regularly reached.-Schreiber v. Dry Dock Sav. Institution (City Ct.) 360. § 2. Competency of jurors, challenges, and objections. § 100. That some persons had formed an opinion of the case from newspaper reports of former trials would not alone disqualify them as jurors.-Noonan v. Luther (Sup.) 898. JUSTICES OF THE PEACE. 1. Civil jurisdiction and authority. *Under Bankr. Act July 1, 1898, c. 541, § 60, subds. "a." "b," 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), an action by a bankrupt's trustee to recover the proceeds of the bankrupt's property, sold under an execution on a judgment recovered by a creditor as an illegal preference, was a suit in equity not within the jurisdiction of a justice of the peace.-Starbuck v. Gebo (Sur.) 312. *A justice of the peace has no jurisdiction of an action between two nonresidents.-Drew v. Cass (Co. Ct.) 607. 2. Procedure in civil cases. Code Civ. Proc. § 2877, requiring a justice of the peace summons to be returnable not less than 6 nor more than 12 days after issued, held not jurisdictional, and hence error in the year in which a summons was made returnable did not avoid the judgment rendered thereon.-Epstein v. Prosser (Co. Ct.) 174. LACHES. In prosecuting action as ground for dismissal, see Dismissal and Nonsuit, § 1. Affecting particular rights, remedies, or proceedings. See Mandamus, § 1; Specific Performance, § 3. Criminal prosecutions, see Criminal Law, § 2. Bill of particulars, see Pleading, § 5. Probate proceedings, see Wills, § 2. Proceedings for probate, see Wills, § 2. *Point annotated. See syllabus. and 146 New York State Reporter LANDLORD AND TENANT. Injunction pendente lite in action against, see Injunction, § 4. Judicial notice in action for rent, see Evidence, $ 1. Mining leases, see Mines and Minerals, § 1. Parol evidence to vary lease, see Evidence, § 7. Right of lessee to damages accrued for taking property for public use, see Eminent Domain, $ 1. § 1. Leases and agreements in general. Defendant held not to have rescinded a lease because of the landlord's failure to have it furnished as agreed.-Davies v. Hotchkiss (Sup.) 233. § 34. A lessor, relying on the cancellation of the lease by mutual consent, has the burden of showing a valid cancellation.-Lynch v. Robert P. Murphy Hotel Co. (Sup.) 915. 2. Terms for years. A tenant under a recorded lease having mortgaged the same, the landlord, as against the mortgagee, was estopped to claim that the tenant was not then in possession under the writing, but under a subsequent oral lease.-Jetter Brewing Co. v. Kurzel (Sup.) 239. § 75. A contract relating to carriage service for a hotel construed, and held to constitute a lease of the privilege to furnish such service. Lynch v. Robert P. Murphy Hotel Co. (Sup.) 915. $ 80. An allegation as to the inadequacy of the service furnished by a sublessee of the lessee of carriage service for a hotel held insufficient. -Lynch v. Robert P. Murphy Hotel Co. (Sup.) 915. Where plaintiff agreed to deliver to defendant possession of a furnished house on June 1st, but failed to do so, and defendant afterward entered the premises in their defective condition, his measure of damages for plaintiff's breach of contract stated.-Davies v. Hotchkiss (Sup.) 233. *Tenants held entitled to recover, as for trespass, for the destruction of their beneficial use of the premises by the act of the landlord in shutting off steam power included in the lease, and not confined to an action for breach of covenant.-Egan v. Browne (Sup.) 689. § 164. Duty of a landlord of an apartment building, respecting its maintenance, stated.Jackson v. Paterno (Sup.) 224. § 164. A tenant of an apartment held not entitled to damages for insufficient heating.—Jackson v. Paterno (Sup.) 924. § 152. Defendant having agreed to repair premises if plaintiff would take a lease, and plaintiff having refused to take one though te moved in, plaintiff cannot recover for defendant's refusal to repair.-Byrnes v. MeNevin (Sup.) 1064. § 179. A landlord cannot be removed from the premises by summary proceedings on the ground of forcible entry and detainer, where it is undisputed that he was interested in the business conducted upon the premises, and o forcible detention appears.-Davis v. Shapiro (Sup.) 1105. § 172. A defense of constructive eviction in an action for rent cannot be based on defective plumbing, where the lease particularly provides that all repairs during the term of the lease should be done by the tenant.-La Roche v. Mulhall (Sup.) 1115. § 149. A lessee's liability on a covenant to pay his pro rata share of water rents must be computed by the means at hand, unless he puts in a meter.-Goerlitz v. Schwartz (Sup.) 1119. § 4. Rent and advances. *Where defendant leased a furnished house from plaintiff, the latter to furnish and repair the house as agreed, if defendant was deprived of possession of the house for two weeks because of its uninhabitable condition, the proportionate rental for that period would have been defendant's measure of damages, and the contention that there was a rental value to the house, even unfurnished. is untenable.-Davies v. Hotchkiss (Sup.) 233. Where plaintiff leased defendant a furnished house, and agreed to furnish and deliver pos session June 1st, even if the house was in an untenantable condition at that time, defendant could not recover actual damages for plaintifs failure to have it in proper condition unless de fendant had intended to take possession at that time, and was thereby deprived of doing so.Davies v. Hotchkiss (Sup.) 233. In an action for rent of a house from June 2d to June 14th, defendant setting up a coEterclaim for damages accruing by his having been prevented from moving into the house at that time because it was uninhabitable, its coadition held not such as to entitle defendant to deduct the rent for that period on the ground that the house was untenantable.-Davies v. Hotchkiss (Sup.) 233. In an action for rent, where defendant set up a counterclaim for damages for being kept out of the house from June 1st to June 14th because of its uninhabitable condition, the evidence held insufficient to show that defendant intended to take possession of the house on June 2d. evea if it had been furnished as agreed.-Davies v. Hotchkiss (Sup.) 233. $231. In an action for rent, the defense of fraudulent representations as to the sanitary *Point annotated. See syllabus. conditions of the premises, authorizing a rescis-lessly in the hearing of those not concerned, or sion of the lease, held not established.-La using stronger language than is necessary or Roche v. Mulhall (Sup.) 1115. justified.-Morton v. Knipe (Sup.) 451, 455. LANDS. See Public Lands, § 1. Of Indians, see Indians. LARCENY. As felony or misdemeanor, see Criminal Law, $ 1. Former jeopardy, see Criminal Law, § 3. Necessity for indictment, see Indictment and Information, § 1. Punishment on second conviction, see Criminal Law, § 7. LAW OF NATIONS. See International Law. LAW OF THE CASE. As condition precedent to carrying on business by foreign corporation, see Corporations, § 7. For making, use, or sale of patented articles, see Patents, § 1. Decision on appeal, see Appeal and Error, § 5. For mining, see Mines and Minerals, § 1. For sale of intoxicating liquors, see Intoxicating Liquors, § 3. Peddlers' licenses, see Hawkers and Peddlers. To teachers, see Schools and School Districts, § 2. § 1. For occupations and privileges. *Laws 1896, p. 1052, c. 803, making it unlawful to conduct a business as an employing plumber without a certificate, held not applicable to a corporation.-Milton M. Schnaier Co. v. Grigsby (City Ct.) 505. A license to a person to follow a particular trade or business is not an appointment to office, nor does it confer any of the powers or privileges of a public officer.-People v. Rosenberg (Gen. Sess.) 316. LIENS. Water rents as lien on premises, see Waters and Water Courses, § 3. Liens acquired by particular remedies or pro- See Mechanics' Liens. Carrier's lien, see Carriers, § 2. ing a piano for repairs had authority to deliver § 1. Without evidence that a person receivthe same to a third person, the latter has no right to enforce a lien against the owner.-Ludwick v. Davenport-Treacy Piano Co. (Sup.) Any privilege of an occasion on which alleged slander is uttered does not protect one making the communication knowingly or care- 1023. *Point annotated. See syllabus. *Limitations on decedent's right to recover land having commenced to run before his death See Insane Persons. were not interrupted by his death, nor by the infancy of some of his heirs.-Lewine v. Gerardo (Sup.) 192. LIMITATION OF LIABILITY. Of carrier, see Carriers, § 2. LIQUIDATED DAMAGES. See Damages, § 2. LIQUOR SELLING. See Intoxicating Liquors. LIS PENDENS. Pendency of other action ground for abatement, see Abatement and Revival, § 2. MACHINERY. Purpose of lis pendens affecting title to real See False Imprisonment. property determined. Bond Realty Co. v. Pounds (Sup.) 433. The rights of a partner under his lis pendens in an action against his copartner and her agent held sufficiently protected by a judgment for specific performance of a contract of sale made by the copartner through her agent.-Bond Realty Co. v. Pounds (Sup.) 433. The court, on a motion to cancel a lis pendens in an action, within Code Civ. Proc. § 1670, held without authority to determine whether the complaint is demurrable.-Lawler v. Densmore-Compton Bldg. Co. (Sup.) 435. MANDAMUS. § 1. Jurisdiction, proceedings, and re lief. *Mandamus held to be refused to compel reiastatement of relators in public service on the ground of laches in commencing proceedings.— People v. Willcox (Sup.) 341. See Mandamus. MANDATE. MARINE INSURANCE. Under Code Civ. Proc. § 1670, a lis pendens may be filed in an action for specific performance of a contract for the leasing of an apartment.-Lawler v. Densmore-Compton Bldg. Co. See Insurance, § 3. (Sup.) 435. Under the facts, held, that the Supreme Court will not cancel notice of lis pendens on the MARKETABLE TITLE. ground that plaintiff unnecessarily neglects to See Vendor and Purchaser, § 2. *Point annotated. See syllabus. MARRIAGE. See Divorce; Husband and Wife. § 20. A present agreement between competent §40. Cohabitation, having begun meretri- 40. One seeking a divorce must establish a § 48. Method of proving a marriage, in the $ 50. Evidence in a divorce action held in- Evidence held sufficient to establish mar- 2. Services and compensation. $ 80. In an action for services, facts held to establish defendant's plea of payment.-Wilson § 3. Master's liability for injuries to In an action for injuries to a servant, de- As to an employé an employer is not charge- On the issue whether there was a common-law The evidence of a so-called common-law mar- *Evidence held insufficient to show a common- MARRIED WOMEN. See Husband and Wife. MASTER AND SERVANT. See Work and Labor. Associations of employers, see Associations. Excessive damages in action for injuries to xtra allowance of costs in action for injuries aw of the case on subsequent appeal in ac- 'unitive damages against master for acts of lestraining disclosure of trade secrets by em- ervant as agent, see Principal and Agent, § 1. 8. Conversation between plaintiff and de- 112 N.Y.S.-76 intended for its ordinary use on the day de- *The operation of an engine backwards at § 101. A tunnel in course of construction § 107. The rule of safe place held inappli- § 121. A gin pole, to which was attached C. (Sup.) 867. § 101. An employer need not furnish the best $ 103. The duty of a master, under Labor § 116. A plank placed across horses for use *Point annotated. See syllabus. |