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taken through a party's mistake, inadvertence, (C) PERSONS WHO MAY TAKE AD-
VANTAGE OF THE BAR.
§ 630. Where alleged tort-feasors are joined
is not a bar to the second.-Tanzer v. Breen
(A) JUDGMENTS CONCLUSIVE IN
rary administrator held not presumptive evi-
dence in his favor on the question whether he
(B) PERSONS CONCLUDED.
§ 707. A judgment against the vendor re.
XVII. FOREIGN JUDGMENTS.
$ 818. Where a judgment of a sister state
not acquired jurisdiction, proof may be adduced
that the appearance of an attorney in behalf of
§ 818. Evidence, in an action on a foreign
judgment against a defendant not personally
served, held to warrant a finding that the ap-
Ogren (Sup.) pearance of her husband for her was not au-
thorized.-White v. Glover (Sup.) 1059.
$ 822. A judgment of the probate court of
another state admitting to probate the alleged
instrument offered by them for probate is de-
cedent's last will.-In re Sands' state (Sur.)
On execution, see Execution, $ 326.
Of commissioners of appraisal of property taken
for public water supply, see Waters and Wa-
MERGED, BARRED, OR CONCLUDED. Jurisdiction of particular actions or pro-
and Administrators, $ 250.
Criminal prosecutions, see Criminal Law, $8 80- | aside a default judgment in a justice's court 105.
and order a nen trial, where the nature of de For causing death, see Death, s 35.
fendant's answer did not appear, and there was Special jurisdictions and jurisdictions of partio- tice, or any excuse for the default.—McCall Co.
no showing that the judgment worked an injusular classes of courts.
v. Unser (Sup.) 826. Bankruptcy, $ 20; Courts.
$ 189. An order of the County Court on ap
peal from a justice's court held improper, as in JURY.
effect modifying its own order in the case.-Ve
Call Co. .y. Unser (Sup.) 826.
Actual or constructive knowledge, see Notice. Taking case or question from jury at trial, see Affecting right to reward, see Rewards, $ 7. Trial, $8 142–178.
Effect of ignorance of cause of action on lim
itation, see Limitation of Actions, $ 35. II. RIGHT TO TRIAL BY JURY. § 28. Where, after a justice before whom
LABOR LAWS. evidence in a cause was heard, refused to make a decision, intimating that the cause ought to be provisions relative to summary dispossession of tried by a jury, defendant, instead of waiting for a jury, consented to proceed at once de novo
tenant, see Landlord and Tenant, &$ 250, 323. before another justice, he waived his right to a jury trial.-Brockman v. Pape (Sup.) 752.
LACHES. V. COMPETENCY OF JURORS, CHAL- Affecting application for bill of particulars, see LENGES, AND OBJECTIONS.
Pleading, $ 323. Presumptions on appeal, see Criminal Law, g 1144.
LANDLORD AND TENANT. 8 110. Under Code Civ. Proc. $ 1180, as
See Use and Occupation. amended by Laws 1877, p. 463, c. 416, § 3347, subd. 7, an objection that a juror is disqualified by reason of age held waived by failure to chal
II. LEASES AND AGREEMENTS IN
GENERAL. lenge.--People v. Thayer (Sup.) 821.
$ 131. In view of Code Cr. Proc. $$ 376, Conclusiveness of allegations or admissions in 383, 384, held that, where the grade of the
pleading by tenant as to existence of, see offense of larceny depends on a former convic
Pleading, $ 36. tion of crime, questions as to whether his former conviction would influence jurors in determining
(A) REQUISITES AND VALIDITY. his guilt or innocence are competent, and de- | Expressions of opinion distinguished from fraud fendant should have been allowed to ask the
in procuring lease, see Fraud, § 11. same of each juror.–People v. Hosier (Sup.) 911.
$ 20. To constitute a lease there must be az $ 131. Where a second conviction is an is- offer and an acceptance of its terms. - Israelsoe
v. Wollenberg (Sup.) 626. sue to determine the grade of the offense, held, that an objection to a question as to whether $ 23. An oral lease, not within the statuta a proposed juror would be influenced if the evi- of frauds, held valid.-Sherry v. Proal (San dence showed that defendant had been con- 234. victed of crime before and seryed a term in the § 25. Evidence held not to show the erist. penitentiary was properly sustained.-People v. ence of a valid lease.-Israelson v. Wollenber? Hosier (Sup.) 911.
(Sup.) 626. JUSTICES OF THE PEACE. (B) CONSTRUCTION AND OPERATION. IV. PROCEDURE IN CIVIL CASES.
Parol or extrinsic evidence, see Evidence, $ 42. $ 135. Priority between levy of execution by sheriff and subsequent levy of execution by contenant held not to amount to a lease. -Sherry
§ 38. An agreement between a landlord and stable on the same property determined. --Tom S. Wotkyns & Co. y. Dempsey-Gabriels Brick
v. Proal (Sup.) 234. Co. (Co. Ct.) 265.
$ 48. A stipulation in a lease that the land
lord should not be liable for any damages caus V. REVIEW OF PROCEEDINGS. ed by or arising from any source about the (A) APPEAL AND ERROR.
premises held no defense to the tenant's action
for the landlord's fraudulent representations $ 189. Under Code Civ. Proc. $ 3064, held that the premises were dry.-Blumenfeld v. error for the County Court on appeal to set | Wagner (Sup.) 500.
III. LANDLORD'S TITLE AND RE VII. PREMISES, AND ENJOYMENT
AND USE THEREOF.
§ 134. In the absence of an express.cove-
Realty Co. (Sup.) 306.
(D) REPAIRS, INSURANCE, AND IM-
Parol or extrinsic evidence as to agreement to
make repairs, see Evidence, $ 442.
8 152. Construction of a sign on the roof of
a leased building by the lessee held not an "al-
meaning of the lease. --Brown v. Broadway &
in excavating adjoining lot, see Master and
Servant, $ 322.
premises is not liable to the lessee or any other
is there an implied warranty that the premises
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
where the defect existed when the lease was re-
$ 165. The owner of bleachers to be used by
persons in witnessing games who leases the
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.
where they are at fault.–Baldwin y. Cohen
$ 169. As to what constitutes negligence by
a place for amusement which was, because of
$ 170. Where the premises when leased were
in a defective condition, constituting a nuisance,
the nuisance continues, though the lessee may al-
so be liable.-Lusk v. Peck (Sup.) 1051.
win v. Cohen (Sup.) 510.
§ 172. Proof that there were radiators of im 195. Where a tenant held over after his perfect design and construction in the leased term and paid a month's rent, after which be apartments, that the apartments were cold, and removed without notice, the landlord properly that the tenant complained thereof, held not to relet the premises.-Howell v. Colson (Sup.) establish a constructive eviction, relieving the 565. tenant from the payment of rent.-Martens v.
$ 195. On abandonment by a tenant before Sloane (Sup.) 512.
termination of the lease, held, that the landlord § 173. The cooking of food in the basement owed him no duty to relet the premises.- Wilof a building by a tenant, in consequence of liam Knabe & Co. Mfg. Co. v. Dinwiddie (Sup.) which odors found their way into the apart- 716. ments of another tenant, held not a constructive eviction, relieving him from the payment of mained after promise by his landlord to oust
$ 200. Tenant held liable for the days he rerent.-Martens v. Sloane (Sup.) 512.
disreputable people, but for no more.-Wetstein $ 178. Where a tenant took possession of v. Grieco (Sup.) 25. premises in September, and, though bad odors which filled the apartment were immediately
(B) ACTIONS. present and dampness arose as soon as steam Parol or extrinsic evidence of lease, see Eviheat was turned on, he remained in possession
dence, $ 442. until the last of the following April, he waived Restraining prosecution of action pending de the right to claim a constructive eviction by
termination of action by tenant to cancel lease, reason of the odors and dampness.-Heilbrun v.
see Injunction, g 26. Aaronson (Sup.) 1096. § 178. Conduct of a tenant held not to show complaint in an action on lease contract, where
$ 230. Plaintiff held entitled to amend his a forbearance of the tenant to exercise his right amendment did not affect the issue.-Goodfield to claim a constructive eviction on account of Realty Co. v. Boden (Sup.) 703. certain conditions complained of pending an effort on his or the landlord's part to restore the $ 231. In an action for rent, evidence held premises to a proper condition.-Heilbrun v. to show that plaintiffs accepted another tenant. Aaronson (Sup.) 1006.
releasing defendant, prior to the expiration of
the term.-Berman v. Thone (Sup.) 557. 8 178. Sickness of tenant's child held not to prevent tenant's waiver of claim of constructive § 231. In an action for rent, evidence held eviction by remaining in possession of the prem- to show that defendant had surrendered his ises.--Heilbrun v. Aaronson (Sup.) 1096.
lease and that plaintiffs accepted the same.
Berman v. Thone (Sup.) 557. VIII. RENT AND ADVANCES.
§ 233. Whether there had been a surrender
of possession by the tenant and acceptance by (A) RIGHTS AND LIABILITIES. the landlord, so as to relieve the tenant from § 182. Where lessors orally agreed to reduce the rent sued for, held for the jury.–Baldwin
v. Cohen (Sup.) 510. the rent, that no receipt was given for payments of the lesser amount in full for a month's rent IX. RE-ENTRY AND RECOVERY OF would not give the lessors the right to recover POSSESSION BY LANDLORD. the balance reserved in the lease.--Zindler v. Levitt (Sup.) 726.
Jurisdiction of municipal court, see Courts, $
188. $ 182. Effect of an oral agreement to accept a lower rent than that reserved in a lease stat § 295. Labor Law (Laws 1906, p. 303, c. 178 ed.-Zindler v. Levitt (Sup.) 726.
as amended by Laws 1908, p. 1217, c. 426) $ 31,
held to create a new remedy for a pre-existing § 186. Lessees, having had the use of the right, and hence it was subject to a lease er premises for a month, held liable for a month's ecuted before its amendment, so as to cover the rent.-Feist v. Grivas (Sup.) 694.
same.-Mandel v. Gottfried (Sup.) 667. $ 188. Unless expressly made so, the keep § 303. A petition in summary proceedings using of a covenant by the landlord to repair der the labor law held, in view of Labor Law held not a condition to the payment of rent.- (Laws 1897, p. 462, c. 415) $ 2, and Laws 19. Baldwin v. Cohen (Sup.) 510.
p. 303, c. 178, $ 94, as amended by Laws 1908, p. $ 190. Real Property Law (Laws 1896, p. 1217, c. 426, to be fatally defective.-Minsky . 589, c. 547) $ 197, permitting a tenant to sur
Weller (Sup.) 628. render and release himself from rent where the 303. As a prerequisite to the exercise of building becomes untenantable, held to have jurisdiction in summary proceedings, every pre nothing to do with the law of eviction, and not quirement of the statute must be strictly obto relieve him from rent because of a frozen served, and every essential affirmatively alleged, pipe bursting on the theory, of constructive nothing being taken by implication.—Nlinsky v. eviction.–Baldwin v. Cohen (Sup.) 510.
Weller (Sup.) 628. $ 195. Landlord held to have made out a $ 303. In view of Code Civ. Proc. $$ 7331, prima facie case in an action to recover rent 2235, a petition for removal of a tenant and upfor an unexpired term and establish a lien on dertenants need not allege that the undertebants furniture as provided in the lease. Howell v. held over "without permission of the landlord." Colson (Sup.) 565.
- Mando v. Kitchell (Sup.) 691.
§ 303. A petition to remove a tenant and un- 1. would be actionable.-Perley v. Morning Tele dertenants, alleging that the premises are in oc- graph Co. (Sup.) 57. cupation of the tenant and undertenants, is spe
$ 6. In an action for libel, held, the letter cific enough, against objection that it did not
on which it was founded was not libelous per show under whom an undertenant was such, or who his landlord was.--Mando v. Kitcheli se..-Flanagan v. McDermott Dairy Co. (Sup.)
. (Sup.) 691. $ 305. In an action to remove a tenant and tiff's shows had been closed because they were
§ 9. A publication of a statement that plainundertenants, held, that there was no error in not successful, with nothing to impair confidence striking out or disregarding an undertenant's in plaintiff's character or business ability, is answer as frivolous.- Mando v. Kitchell (Sup.) | not libelous per se. -Perley v. Morning Tele691.
graph Co. (Sup.) 57. X. RENTING ON SHARES.
$ 25. The sending by telegraph of a commu$ 329. Code Civ. Proc. § 2231, subd. 1, held nication by one corporate stockholder to anothnot to authorize summary proceedings to remove er is not such a disclosure to others of the matfrom possession one under contract to work ter therein as to destroy its character as privifarm on shares.-In re Ballou (Co. Ct.) 1118. leged.-Ashcroft v. Hammond (Sup.) 362. LANDS.
II. PRIVILEGED COMMUNICATIONS,
AND MALICE THEREIN. See Public Lands.
§ 42. A fair and truthful statement of a
v. judicial proceeding is privileged.-Perley LAPSE.
Morning Telegraph Co. (Sup.) 57.
(B) PARTIES, PRELIMINARY PROCEED
INGS, AND PLEADING.
$ 100. Unless defendant pleads affirmatively rier, see Carriers, 8 108.
as a defense that an unprivileged publication,
libelous per se, is true, its falsity is not in isII. PROSECUTION AND PUNISH
sue, and no evidence on that question is admissiMENT.
ble.-Ashcroft v. Hammond (Sup.) 362. As to sufficiency of evidence to corroborate tes
(C) EVIDENCE. timony of accomplice, see Criminal Law, $_741. Jurisdiction of prosecution, see Criminal Law, Retaking of depositions, see Depositions, § 84. $ 93.
§ 101. Where the defense of qualified priviLAW OF THE ROAD.
lege is pleaded in an action for libel, and a pri
ma facie case for defendant is made by the eviSee Highways, 8 184.
dence, the burden is on plaintiff to destroy the
privilege in order to recover.-Ashcroft v. HamLEASES.
mond (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. LEAVE OF COURT.
Hammond (Sup.) 362. To institute other actions for recovery of debts $ 101. If the truth of an unprivileged pub
secured by mechanics' lien during pendency lication be pleaded as a defense, the burden of of action to foreclose, see Mechanics' Liens, 8 proof is on defendant.-Ashcroft v. Hammond 246.
(Sup.) 362. To sue receiver, see Receivers, $ 174.
$ 101. Where an unprivileged publication is
libelous per se, it is presumed to be false.--AshLEGACIES.
croft v. Hammond (Sup.) 362. See Wills.
$ 112. Where the alleged 'libel was a privi
leged communication, the burden on plaintiff LEGACY TAX.
of destroying the privilege is sustained by showSee Taxation, 88 865–900.
ing that the matter published was false and the publication malicious.-Ashcroft v. Ham
mond (Sup.) 362. LIBEL AND SLANDER.
(E) TRIAL, JUDGMENT, AND REVIEW. AND LIABILITY THEREFOR.
§ 123. Though there is evidence in an action
for libel that the occasion of the communica$ 6. Written words are libelous in all cases tion was one of qualified privilege, the case where, if the same words were spoken, they should be submitted to the jury, where there is
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER
1. WORDS AND ACTS ACTIONABLE,