For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER
116 N.Y.S.-76

Criminal prosecutions, see Criminal Law, §§ 80-| aside a default judgment in a justice's court

105.

For causing death, see Death, § 35.

and order a new trial, where the nature of defendant's answer did not appear, and there was no showing that the judgment worked an injus

Special jurisdictions and jurisdictions of partio- tice, or any excuse for the default.-McCall Co. ular classes of courts. Bankruptcy, § 20; Courts.

v. Unser (Sup.) 826.

JURY.

Instructions in civil actions, see Trial, § 253. Questions for jury in civil actions, see Trial, § 142.

Questions for jury in criminal prosecutions, see
Criminal Law, § 741.
Taking case or question from jury at trial, see
Trial, §§ 142–178.

II. RIGHT TO TRIAL BY JURY.

§ 28. Where, after a justice before whom evidence in a cause was heard, refused to make a decision, intimating that the cause ought to be tried by a jury, defendant, instead of waiting for a jury, consented to proceed at once de novo before another justice, he waived his right to a jury trial.-Brockman v. Pape (Sup.) 752.

V. COMPETENCY OF JURORS, CHAL-
LENGES, AND OBJECTIONS.
Presumptions on appeal, see Criminal Law, §
1144.

§ 131. In view of Code Cr. Proc. §§ 376, 383, 384, held that, where the grade of the offense of larceny depends on a former conviction of crime, questions as to whether his former conviction would influence jurors in determining his guilt or innocence are competent, and defendant should have been allowed to ask the same of each juror.-People v. Hosier (Sup.) 911.

§ 189. An order of the County Court on appeal from a justice's court held improper, as in effect modifying its own order in the case.-MeCall Co. v. Unser (Sup.) 826.

KNOWLEDGE.

Actual or constructive knowledge, see Notice.
Affecting right to reward, see Rewards, § 7.
Effect of ignorance of cause of action on lim-
itation, see Limitation of Actions, § 95.

LABOR LAWS.

Provisions relative to summary dispossession of tenant, see Landlord and Tenant, §§ 295, 303.

§ 110. Under Code Civ. Proc. § 1180, as

amended by Laws 1877, p. 463, c. 416, § 3347, See Use and Occupation.

subd. 7, an objection that a juror is disqualified by reason of age held waived by failure to challenge. People v. Thayer (Sup.) 821.

JUSTICES OF THE PEACE.

IV. PROCEDURE IN CIVIL CASES.

§ 135. Priority between levy of execution by sheriff and subsequent levy of execution by constable on the same property determined.Tom S. Wotkyns & Co. v. Dempsey-Gabriels Brick Co. (Co. Ct.) 265.

LACHES.

Affecting application for bill of particulars, see
Pleading, 323.

LANDLORD AND TENANT.

II. LEASES AND AGREEMENTS IN
GENERAL.

Conclusiveness of allegations or admissions in
pleading by tenant as to existence of, see
Pleading, $36.

(A) REQUISITES AND VALIDITY. Expressions of opinion distinguished from fraud in procuring lease, see Fraud, § 11.

§ 20. To constitute a lease there must be an § 131. Where a second conviction is an is-offer and an acceptance of its terms.-Israelson sue to determine the grade of the offense, held, V. Wollenberg (Sup.) 626.

that an objection to a question as to whether $ 23. An oral lease, not within the statute a proposed juror would be influenced if the evi- of frauds, held valid.-Sherry v. Proal (Sup) dence showed that defendant had been con- 234. victed of crime before and seryed a term in the penitentiary was properly sustained.-People v. Hosier (Sup.) 911.

$ 25. Evidence held not to show the exist ence of a valid lease.-Israelson v. Wollenberg (Sup.) 626.

(B) CONSTRUCTION AND OPERATION. Parol or extrinsic evidence, see Evidence, § 442.

§ 38. An agreement between a landlord and tenant held not to amount to a lease.-Sherry v. Proal (Sup.) 234.

§ 48. A stipulation in a lease that the landlord should not be liable for any damages caused by or arising from any source about the premises held no defense to the tenant's action for the landlord's fraudulent representations that the premises were dry.-Blumenfeld v. Wagner (Sup.) 500.

V. REVIEW OF PROCEEDINGS. (A) APPEAL AND ERROR.

§ 189. Under Code Civ. Proc. § 3064, held error for the County Court on appeal to set

III. LANDLORD'S TITLE AND RE-

VERSION.

(A) RIGHTS AND POWERS OF LAND-
LORD.

§ 55. The use of the roof of a leased building
by the tenant for advertising purposes held not
waste as between the landlord and tenant.
Brown v. Broadway & Seventy-Second St. Real-
ty Co. (Sup.) 306.

IV. TERMS FOR YEARS.

(B) ASSIGNMENT, SUBLETTING, AND

MORTGAGE.

$ 79. The assignee of leases as security for
a loan held entitled to collect the rents by sum-
mary proceedings, etc., though defendant had
not defaulted.-Jackson v. Erkins (Sup.) 385.

§ 79. Where a loan was secured by the as-
signment of subleases, etc., and the mortgagee
was authorized to collect the rents and main-
tain summary proceedings therefor, the mort-
gagor of leases held impliedly bound to reim-
burse the mortgagee for necessary expenses in
collecting the rents, so that the mortgagee could
retain the leases as security for such expendi-
tures after the loan was paid.-Jackson v. Er-
kins (Sup.) 385.

§ 80%. In an action for rent, evidence held
to show that defendant took possession as an
assignee of the lease and was liable for the rent.
-Talley v. James Everard's Breweries (Sup.)
657.

(C) EXTENSIONS, RENEWALS, AND OP-
TIONS TO PURCHASE OR SELL.

§ 88. Letters between landlord's agent and a
tenant held to constitute contract for leasing of
premises for another year.-Goodfield Realty Co.
v. Boden (Sup.) 703.

V. TENANCIES FROM YEAR TO
YEAR AND MONTH TO
MONTH.

$115. Where one goes into possession of land
under an invalid lease and pays a monthly rent,
he becomes a tenant from month to month.-
Israelson v. Wollenberg (Sup.) 626.

§ 115. A tenancy held to be at most only a

tenancy from month to month.-Broadway Bldg.
Co. v. Fergusson (Sup.) 630.

§ 116. The notice necessary to terminate a
tenancy from month to month is one given with-
in a reasonable time, and a notice given on July
21st by actually moving out was sufficient to
terminate the tenancy August 1st.-Broadway
Bldg. Co. v. Fergusson (Sup.) 630.

VI. TENANCIES AT WILL AND AT
SUFFERANCE.

VII. PREMISES, AND ENJOYMENT
AND USE THEREOF.

(B) POSSESSION, ENJOYMENT, AND USE.
§ 134. In the absence of an express cove-
nant in a lease restricting the tenant in his use
of the property, he may use it in any way con-
sistent with the purpose for which it was erect-
ed.-Brown v. Broadway & Seventy-Second St.
Realty Co. (Sup.) 306.

(D) REPAIRS, INSURANCE, AND IM-
PROVEMENTS.
Parol or extrinsic evidence as to agreement to
make repairs, see Evidence, § 442.

§ 152. Construction of a sign on the roof of
a leased building by the lessee held not an "al-
teration and change" in the building within the
meaning of the lease.-Brown v. Broadway &
Seventy-Second St. Realty Co. (Sup.) 306.

(E) INJURIES FROM DANGEROUS OR
DEFECTIVE CONDITION.

Injuries caused by act of independent contractor
in excavating adjoining lot, see Master and
Servant, § 322.

§ 162. As a general rule, the owner of leased
premises is not liable to the lessee or any other
is there an implied warranty that the premises
person for the condition of the premises, nor
may be used for the purpose designed.-Lusk v.
Peck (Sup.) 1051.

§ 165. The liability of a landlord for injuries
to a third person from a defective condition of
the premises is not affected by a provision in
the lease requiring the lessee to make repairs,
where the defect existed when the lease was re-
newed.-Lusk v. Peck (Sup.) 1051.

§ 165. The owner of bleachers to be used by
persons in witnessing games who leases the
same, knowing or having the means of knowing
of their dangerous condition from decay, is lia-
ble to a third person who is injured by a col-
lapse of the bleachers during a game.-Lusk v.
Peck (Sup.) 1051.

§ 168. A breach of a covenant by a landlord
to make inside repairs held not to entitle the
tenants to recover for damage to their goods,
where they are at fault.-Baldwin v. Cohen
(Sup.) 510.

§ 169. As to what constitutes negligence by

the landlord in leasing and permitting to be used

a place for amusement which was, because of
decay, in a dangerous condition, is for the jury
to determine.-Lusk v. Peck (Sup.) 1051.

§ 170. Where the premises when leased were
the liability of the landlord for the results of
in a defective condition, constituting a nuisance,
the nuisance continues, though the lessee may al-
so be liable.-Lusk v. Peck (Sup.) 1051.

(F) EVICTION.

118. Where one goes into possession of land
under an invalid lease, his tenancy at its incep-
tion is a tenancy at will.-Israelson v. Wol-
lenberg (Sup.) 626.

§ 172. The bursting of a frozen water pipe
and refusal to repair held not a constructive
eviction, relieving the tenant from rent.-Bald-
win v. Cohen (Sup.) 510.

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER

303. A petition to remove a tenant and undertenants, alleging that the premises are in occupation of the tenant and undertenants, is specific enough, against objection that it did not show under whom an undertenant was such,

§ 6. In an action for libel, held, the letter on which it was founded was not libelous per

or who his landlord was.-Mando v. Kitchell.-Flanagan v. McDermott Dairy Co. (Sup.) (Sup.) 691.

§ 305. In an action to remove a tenant and undertenants, held, that there was no error in striking out or disregarding an undertenant's answer as frivolous.-Mando v. Kitchell (Sup.) 691.

X. RENTING ON SHARES.

§ 329. Code Civ. Proc. § 2231, subd. 1, held not to authorize summary proceedings to remove from possession one under contract to work farm on shares.-In re Ballou (Co. Ct.) 1118.

LANDS.

See Wills.

LEAVE OF COURT.

To institute other actions for recovery of debts secured by mechanics' lien during pendency of action to foreclose, see Mechanics' Liens, & 246.

To sue receiver, see Receivers, § 174.

LEGACIES.

LEGACY TAX. See Taxation, §§ 865-900.

would be actionable.-Perley v. Morning Telegraph Co. (Sup.) 57.

LIBEL AND SLANDER.

tiff's shows had been closed because they were 9. A publication of a statement that plainnot successful, with nothing to impair confidence in plaintiff's character or business ability, is not libelous per se.-Perley v. Morning Telegraph Co. (Sup.) 57.

I. WORDS AND ACTS ACTIONABLE,
AND LIABILITY THEREFOR.

$ 25. The sending by telegraph of a communication by one corporate stockholder to another is not such a disclosure to others of the matter therein as to destroy its character as privileged.-Ashcroft v. Hammond (Sup.) 362.

See Landlord and Tenant.

§ 101. Proof that the communication was Parol or extrinsic evidence, see Evidence, § 442. of falsity, and raises a presumption of good one of qualified privilege rebuts the presumption

faith on the part of defendant.-Ashcroft v. Hammond (Sup.) 362.

§ 101. If the truth of an unprivileged publication be pleaded as a defense, the burden of proof is on defendant.-Ashcroft v. Hammond (Sup.) 362.

II. PRIVILEGED COMMUNICATIONS,
AND MALICE THEREIN.

§ 42. A fair and truthful statement of a judicial proceeding is privileged.-Perley v. Morning Telegraph Co. (Sup.) 57.

IV. ACTIONS.

(B) PARTIES, PRELIMINARY PROCEEDINGS, AND PLEADING.

§ 100. Unless defendant pleads affirmatively as a defense that an unprivileged publication, libelous per se, is true, its falsity is not in issue, and no evidence on that question is admissible.-Ashcroft v. Hammond (Sup.) 362.

(C) EVIDENCE.

Retaking of depositions, see Depositions, § 84.

§ 101. Where the defense of qualified privilege is pleaded in an action for libel, and a prima facie case for defendant is made by the evidence, the burden is on plaintiff to destroy the privilege in order to recover.-Ashcroft v. Hammond (Sup.) 362.

§ 101. Where an unprivileged publication is libelous per se, it is presumed to be false.-Ashcroft v. Hammond (Sup.) 362.

§ 112. Where the alleged libel was a privileged communication, the burden on plaintiff of destroying the privilege is sustained by showing that the matter published was false and the publication malicious.-Ashcroft v. Hammond (Sup.) 362.

(E) TRIAL, JUDGMENT, AND REVIEW. § 123. Though there is evidence in an action for libel that the occasion of the communication was one of qualified privilege, the case should be submitted to the jury, where there is

§ 6. Written words are libelous in all cases where, if the same words were spoken, they

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER