For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER version, the Municipal Court of the city of New York had no power to make an order on defendant's motion bringing in an additional defendant.-Beach v. Bongartz, 180 N. Y. S. 420. 189(7) (N.Y.Sup.) Where action was commenced in Municipal Court only by service of summons bearing the indorsement, "The nature and substance of the within cause of action is fraud and conversion," and defendant did not move to require plaintiff to file a written complaint, or to dismiss the complaint for failure to state facts sufficient to constitute a cause of action, or move to make it more definite and certain, the action stands as one to recover damages for fraud and conversion, and trial can be had only on such issue under the pleadings.-Beach v. Bongartz, 180 N. Y. S. 420. 189(15) (N.Y.Sup.) Where judgment was entered for plaintiffs April 30, 1919, and on May 5, 1919, defendant obtained an order requiring plaintiffs to show cause on May 7, 1919, why the judgment should not be amended by reducing the same, and hearing was adjourned from time to time until May 26, 1919, an order modifying the judgment, made on May 28, 1919, was in time, under Municipal Court Code, § 119, subd. 2; only two days having elapsed since the submission of the motion.-Landesberg v. Marchitto, 180 N. Y. S. 410. 190(2) (N.Y.Sup.) An appeal will not lie from the informal indorsement, signed by judge in summary proceedings by landlord in Municipal Court, that "upon stipulation filed herein, and all papers, landlord's petition dismissed."-Youngsters' Realty Corporation v. Oliver, 180 N. Y. S. 26. 190 (2) (N.Y.Sup.) Municipal Court Code, § 154, makes no provision for an appeal from an order modifying and reducing a judgment in favor of plaintiff; it appearing that the order was within the jurisdiction of the court to make.-Landesberg v. Marchitto, 180 N. Y. S. 410. 190(2) (N.Y.Sup.) Under Municipal Court Code, 154, order granting motion directing clerk of Municipal Court to accept answer for filing, and to file the same nune pro tunc as of certain date, held not appealable.-Rosenberg v. Block, 180 N. Y. S. 415. 190(2) (N.Y.Sup.) An order of the Municipal Court of the city of New York, improper under Municipal Court Code, § 27, subd. 3, bringing in an additional defendant in an action for fraud and conversion, is appealable.Beach v. Bongartz, 180 N. Y. S. 420. tiffs to show cause on May 7, 1919, why the judgment should not be amended by reducing the same, and the hearing was adjourned from time to time until May 26, 1919, and on May 27, 1919, the defendant obtained another order for the same relief, returnable on May 28, 1919, it cannot be said on appeal that an order modifying the judgment entered on May 28, 1919, was not valid, in that the second motion was a new motion, and not made within 20 days from the entry of judgment, where there is nothing in the record to show that the decision was based upon the second motion alone.-Landesberg v. Marchitto, 180 N. Y. S. 410. 190(9) (N.Y.Sup.) Where the affidavits for and against a motion to vacate a default in the Municipal Court for failure to serve process are sharply conflicting, and the truth cannot be determined therefrom, an order denying the motion will be reversed, and the question of service tried orally.-Korn v. Karo, 180 N. Y. S. 644.. v. COURTS OF PROBATE JURISDICTION. 202 (2) (N.Y.Sur.) There is no such pleading as a demurrer in the Surrogate's Court, and a motion asking for dismissal of the petition, being in the nature of a demurrer, will be denied. -In re Eno's Estate, 180 N. Y. S. 889. See Appeal, COVENANTS. 458; Contracts, 117; Injunction, 61; Landlord and Tenant, 130; Patents, 195; Vendor and Purchaser, 130. II. CONSTRUCTION AND OPERATION. (B) Covenants of Title. 40 (N.Y.) Under Real Property Law, § 253, a covenant of seisin means that the grantor at the time of conveyance was lawfully seized of a good and indefeasible estate of inheritance in fee simple, and had power to convey the same, and possession will not satisfy the covenant.-Hilliker v. Rueger, 126 N. E. 266, 228 N. Y. 11. (C) Covenants as to Use of Real Property. 51(2) (N.Y.Sup.) A building restriction prohibiting the erection of any buildings, except detached dwelling houses, on lots 50 feet front or more, to cost not less than $10,000, held to prohibit the erection of semi-detached one-family dwellings.-Liebman v. Hall, 180 N. Y. S. 514. 190(6) (N.Y.Sup.) Where there was no agreed statement of fact, accompanied by the affidavit of one or more of the parties that the controversy is real and that the submission (D) Covenants Running with the Land. is made in good faith, for the purpose of de-84 (N.Y.Sup.) On equitable doctrines, a retermining the rights of the parties, under Municipal Court Code, § 124, a stipulation dictated in the presence of the judge constituted a "trial," and before appellate court can review dismissal of petition there must be a settled case.-Youngsters' Realty Corporation v. Oliver, 180 N. Y. S. 26. 190(6) (N.Y.Sup.) Where judgment was entered April 30, 1919, and on May 5, 1919, defendant obtained an order requiring plain strictive covenant made by a prior owner, if clearly established, will be enforced against subsequent grantees with notice, even though no privity of estate exists.-Rubel Bros. v. Dumont Coal & Ice Co., 180 N. Y. S. 662. Where a recorded agreement, reciting a valuable consideration, was made between owners of land contiguous to and adjoining the premises of the covenantor, to the effect that its land would not be used for conducting any re tail or wholesale business in purchasing, selling, or distributing coal or ice, and where, on a judgment foreclosing a then existing mortgage on covenantor's land, there was a sale subject to the restriction under which defendant became the owner thereof, with actual and constructive notice of the agreement, the agreement was binding on it, though there was no privity of estate between it and the parties thereto.-Id. III. PERFORMANCE OR BREACH. 94 (N.Y.) If a covenant of seisin be broken at all, it is at the time of delivery of the conveyance, and if the covenant is broken by failure of title, action can be commenced at once to recover the damages sustained.-Hilliker v. Rueger, 126 N. E. 266, 228 N. Y. 11. It is not essential in an action for breach of a covenant of seisin that the grantee should be evicted.-Id. IV. ACTIONS FOR BREACH. 125(1) (N.Y.) Where a conveyance included a covenant of seisin, the grantee when sued may defend his title and possession; and, where the title fails, he may recover from the grantor not exceeding the consideration paid for the premises involved, together with the necessary costs and disbursements.-Hilliker v. Rueger, 126 N. E. 266, 228 N. Y. 11. Where land was conveyed with covenant of seisin, and the grantee entered into a contract for the sale thereof, but the purchaser refused to accept title, and it was determined, in an action between the grantee and purchaser, that the grantee did not have a marketable title, held that the attack on the title was not a direct attack, and, though it was found in an action by the grantee for breach of covenant of seisin that the covenant was broken, the grantee could not recover the expenses of the previous action.-Id. 125 (2) (N.Y.) It is not essential in an action for breach of a covenant of seisin that the grantee should be evicted, and though there is no eviction, the grantee is not restricted to nominal damages.-Hilliker v. Rueger, 126 N. E. 266, 228 N. Y. 11. CRIMINAL LAW. See Breach of the Peace; Disorderly Conduct; Habeas Corpus, 50; Indictment and In formation; Municipal Corporations, 640, 642; Schools and School Districts, 160; Theaters and Shows, 1; Vagrancy. IV. JURISDICTION. 101(4) (N.Y.Sup.) Where prosecution for violation of a New York City ordinance, begun in Magistrate's Court, is transferred to the Court of Special Sessions, it is essential that an order be made by the magistrate, or Court of Special Sessions held by him, so transferring the action.-People v. Frooks, 180 N. Y. S. 81. of Special Sessions held by a city magistrate, with provision for transfer of cause to Court of Special Sessions held by three judges, where employé of health department filed an information charging defendant with violating Sanitary Code, § 118, and case was transferred to the three-judge court, defendant not consenting to trial by magistrate as a Court of Special Sessions, the filing of an information by district attorney in the three-judge court was jurisdictional, in view of Code Cr. Proc. §§ 742, 743, since it is only where consent is had to trial by magistrate as a Court of Special Sessions and then a transfer that trial may be had on original information, not where transfer is had after a hearing as examining court.-People v. Frooks, 180 N. Y. S. 81. V. VENUE. (A) Place of Bringing Prosecution. 107 (N.Y.Sup.) Penal Law, § 342, which provides that an indictment for bigamy may be found in the county in which defendant was arrested is constitutional.-People ex rel. Mayo v. Hanley, 180 N. Y. S. 342. VIII. PRELIMINARY COMPLAINT, AF- 211(1) (N.Y.Sup.) It is not essential that 211(4) (N.Y.Sup.) An information filed by the form of an affidavit with city magistrate, an employé of the department of health, in charging that defendant willfully violated Sanitary Code, § 118, declaring that no person shall make, administer, or dispense any preleading representation, which follows the lanscription of medicine under any false or misguage of the statute, alleging that defendant made a false or misleading statement as to the purpose of the medicine, must, after conviction, be deemed sufficient, despite the fact that it did not show that representations made by defendant were not true; the information being the preliminary one, and not governed by the strict rules applicable to indictment, and not being subject, after conviction, to that wise prevail, if the insufficiency was presented strictness of construction which would otherby habeas corpus.-People v. Frooks, 180 N. Y. S. 81. Court from judgment of Court of Special Ses260 (7) (N.Y.Co.Ct.) On appeal to County sions, under Code Cr. Proc. § 752, the County Court in deciding appeal must be guided by the record, notwithstanding possibility that justice of peace committed errors and that the return may not contain all the evidence given on the trial.-People v. Saddlemire, 180 N. Y. S. 257. 101(5) (N.Y.Sup.) Under Laws 1915, c. 531,260(7) (N.Y.Sup.) Where defendant, who amending Laws 1910, c. 659, providing in sec- appealed from conviction in the Court of Spetion 44 the procedure to be followed when a de- cial Sessions, did not prepare a record, but fendant is arraigned before a city magistrate instead the facts were stipulated in writing by for an offense which may be tried by a Court the district attorney, the stipulation will be For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER construed in appellate court in accordance with, § 217, when followed by the return of the prisconcession of district attorney.-People V. Frooks, 180 N. Y. S. 81, oner, automatically postponing the execution of the second sentence until the execution of the first had been completed.-People ex rel. Newton v. Twombly, 126 N. E. 255. CROSS-EXAMINATION. CUMULATIVE VOTING. 315 (N.Y.Co.Ct.) In prosecution of parent See Municipal Corporations, 198. for failure to cause child to attend school, under Education Law, §§ 621-624, residence of parent and child in certain district and town at time of trial does not create presumption that they were residing in same district and town at time of alleged commission of offense.-People v. Saddlemire, 180 N. Y. S. 257. See Corporations, 283. CURATIVE ACTS. Court cannot legally presume that, because a See Constitutional Law, 196. person resides in a certain town at the present time, he resided in same town a year or 30 days prior to such time.-Id. DAMAGES. (B) Facts in Issue and Relevant to Issues, See Bailment, 32; Death, and Res Gestæ. 338(1) (N.Y.Gen.Sess.) In prosecution for vagrancy, under Tenement House Law, § 150, defining a vagrant as a person who commits prostitution in a tenement house, the failure of the police to produce the man claimed to have been with defendant at the time of commission of act held an important circumstance, which the court may take into consideration in determining whether officer's testimony is credible, and whether the woman charged with the offense is guilty.-People v. Edwards, 180 N. Y. S. 631. XII. TRIAL. (E) Arguments and Conduct of Counsel. 704 (N.Y.Co.Ct.) While admissions of counsel are binding in criminal as well as in civil cases, the assumption of facts by counsel for the purpose of argument or an informal statement of facts upon the opening is not such an admission as will support a conviction for operating a carousal without a license, in the absence of evidence of such operation.-People v. Hovell, 180 N. Y. S. 255. XVII. PUNISHMENT AND PREVEN- 91; Eminent III. GROUNDS AND SUBJECTS OF (C) Interest, Costs, and Expenses of Liti gation. VI. MEASURE OF DAMAGES. (C) Breach of Contract. 124(3) (N.Y.Sup.) Where defendant broke its agreement to pay $50 a month for a year for plaintiff's services in carting rubbish, plaintiff was not entitled to recover the full agreed price reserved in the contract, but only the profits which it might have made.-Manhattan Carting Co. v. Keen's Chop House, 180 N. Y. S. 409. VII. INADEQUATE AND EXCESSIVE 1216(1) (N.Y.Sup.) Under Penal Law, § 2193, as amended by Laws 1919, c. 410, requiring the time of confinement in a prison or jail prior to conviction to be calculated as a part of the term of the sentence, and requir-132(6) (N.Y.Sup.) Where a comparatively ing the judge to indorse such time on the commitment papers, the prison officials cannot act on information obtained in any other way. -People ex rel. Hand v. Prison Board of Sing Sing Prison, 180 N. Y. S. 702. 1216(2) (N.Y.) Where one was convicted of burglary and was released on parole, under Prison Law, §§ 214, 215, and immediately committed burglary again, and was convicted of the second offense and sentenced to confinement and served about ten days when the discovery was made that he had been on parole, and thereupon a warrant was issued and he was arrested for breach of his parole and declared delinquent, the sentences under the two convictions must be served consecutively and not concurrently, in view of Penal Law, § 2190; the declaration of delinquency under Prison Law, young man, earning about $1,500 a year, sustained injuries amounting to almost total disability in the use of his legs, and rendering him practically helpless for life, a verdict for an amount which, if invested, would not yield more than his previous earnings, was not excessive.-Bauch v. Schultz, 180 N. Y. S. 188. DEAF AND DUMB PERSONS. See Master and Servant, 375. DEATH. See Appeal, 1046, 1050; Master and Servant, 278, 281; Municipal Corporations, 706; Negligence, 136; Street Railroads, 114; Trial, 29. DEPOSITS IN COURT. See Judgment, 138. DEPRECIATION. II. ACTIONS FOR CAUSING DEATH. See Judgment, and Purchaser, DEEDS. DESCENT AND DISTRIBUTION. See Executors and Administrators; Wills. I. NATURE AND COURSE IN GEN- 9 (N.Y.Sup.) Where a provision of a will giving a bottling business, the real estate and equipment, and all assets thereof to a son and 779; Mortgages; Vendor life, or for such time as they deemed advis widow, to carry it on during widow's natural 130. IV. PLEADING AND EVIDENCE. 194(3) (N.Y.Sup.) A deed is presumed to have been delivered on the day it bears date. -Tausk v. Siry, 180 N. Y. S. 439. 194 (3) (N.Y.Sup.) There is a presumption that a deed was delivered and accepted at its date.-Peckham, Wolf & Co. v. Tallmadge, 180 N. Y. S. 569. DEFAULT. See Attorney and Client, 39. DELEGATION. able, and otherwise empowered and directed them to sell the business, and provided that one-half of proceeds should go to son, and onehalf in trust to pay net income to widow for life, with right to use principal for support, the proceeds remaining at her death to go to son, was construed as a conversion, and the son died intestate before the widow, his part of the proceeds as personalty would go under the statute to his next of kin, his maternal grandmother, rather than to blood relatives of his father. Simonds v. Rowe, 180 N. Y. S. 677. III. RIGHTS AND LIABILITIES OF on Property. See Landlord and Tenant, 162; Public (C) Debts of Intestate and Incumbrances Service Commissions, 7; Waters and Water Courses, 203. DEPOSITIONS. 8 (N.Y.Sup.) Motion for commission to take testimony in support of a defense, which testimony would not be admissible on trial, should have been denied.-French Over-Seas Corporation v. Five Continents Corporation, 180 N. Y. S. 374. 8 (N.Y.Sup.) In action on fire policies, where insurers asserted that insured fired the premises, and there was no question of intent, evidence that the insured might have been guilty of arson several years before is inadmissible, because too remote and not connected with the main transaction; hence the denial of commission to take such testimony was not error.-Kelly v. Home Mut. Fire Ins. Co. of Broome County, 180 N. Y. S. 657. 14 (N.Y.Sup.) In order for defendants to be entitled to an examination of a witness before trial, it is incumbent on them to show, under Code Civ. Proc. § 872, subd. 5, that the witness is about to depart from the state, or is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial, or other special circumstances rendering it proper that he should be examined, and the mere fact that the witness is an assignor of the cause of action, or the fact that he is an employé of plaintiff, does not authorize an examination, in view of section 882, which must be read in connection with section 872, subd. 5. -Scheff v. Lewis, 180 N. Y. S. 831. 138 (N.Y.Sur.) A proceeding by the executor of an attorney, to fix his fees and to enforce a lien therefor on the interest of certain of the beneficiaries of an estate, authorized by DIRECTOR GENERAL OF RAILROADS. DISCOVERY. II. UNDER STATUTORY PROVI- (A) Interrogatories and Examination of Parties and of Other Persons. 40 (N.Y.Sup.) Defendants are not entitled to an examination of plaintiffs with respect to facts that it will be incumbent on the plaintiffs to prove as part of their affirmative case.-Scheff v. Lewis, 180 N. Y. S. 831. For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER (B) Production and Inspection of Writ-4(1) (N.Y.Sup.) To effect a change of domi- 84 (N.Y.Sup.) Where there is a special con- DISEASE. See Master and Servant, 405. DISMISSAL AND NONSUIT. See Appeal, 627; Contracts, 306; Courts, II. INVOLUNTARY. 73 (N.Y.Sup.) A motion to dismiss the com- DISORDERLY CONDUCT. (N.Y.Gen.Sess.) Under certain circum- was 8 (N.Y.Sup.) There is the presumption that 10 (N.Y.Sup.) Where a New Yorker by That a New Yorker, who owned a New York Though a will recited that testator was a In a proceeding for the appraisal of the estate DOWER. 9 (N.Y.Gen.Sess.) Where defendant held not sufficient to show defendant guilty be- 782. III. RIGHTS AND REMEDIES OF 57(1⁄2) (N.Y.Sup.) Evidence held insufficient dower rights absolutely in consideration of ad- 57(2) (N.Y.Sup.) Evidence held to show |