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taken through a party's mistake, inadvertence, (C) PERSONS WHO MAY TAKE AD-
surprise, or excusable neglect.-Salkind v. Levy

VANTAGE OF THE BAR.
(City Ct.) 581.

§ 630. Where alleged tort-feasors are joined
$ 145. A default should not be opened to per- in one action and answer separately, plaintiff
mit defendant, sued on his guaranty of perform- may prosecute the case against one to judgment
ance of a contract, to show that the contract first and afterwards prosecute the case to judg-
was illegal.—Tedford v. Lichtenstein (Sup.) 361. ment against the other, and the first judgment

is not a bar to the second.-Tanzer v. Breen
§ 169. Though plaintiff's default not
suffered through mistake, etc., held, that it (Sup.) 110.
would be vacated on the payment of costs and XIV. CONCLUSIVENESS OF ADJUDI-
conditions stated.-Salkind v. Levy (City Ct.)

CATION.
581.
VI. ON TRIAL OF ISSUES.

(A) JUDGMENTS CONCLUSIVE IN

GENERAL.
(A) RENDITION, FORM, AND REQUI $ 652. A default judgment against a tempo-
SITES IN GENERAL.

rary administrator held not presumptive evi-

dence in his favor on the question whether he
88 218, 220. Form of judgment on a general was chargeable with certain assets.--In re Grant
verdict prescribed.-Folcarelli v. Ward (Sup.) (Sup.) 1152.
1093.
(B) PARTIES.

(B) PERSONS CONCLUDED.
§ 235. Under Code Civ. Proc. 88 1204, 1205,

§ 707. A judgment against the vendor re.
held. that a judgment in a tort action may be scinding the contract is not res judicata as to
dismissed as to one of the defendants and judg- the vendor's broker, so as to entitle him to
ment rendered in his favor, although as to the plead it in a suit for commission.- Polak v. Wil-
others the case was a mistrial.-Tanzer v. Breen liam Rosenzweig Realty Operating Co. (Sup.)

38.
(Sup.) 110.

XVII. FOREIGN JUDGMENTS.
(C) CONFORMITY TO PROCESS, PLEAD-

$ 818. Where a judgment of a sister state
INGS, PROOFS, AND VERDICT is assailed on the ground that the court had
OR FINDINGS.

not acquired jurisdiction, proof may be adduced
$ 251. A decision held erroneous, as adopting the defendant not personally served was not au-

that the appearance of an attorney in behalf of
a theory different than that upon which the thorized.-White v. Glover (Sup.) 1059.
action was based.–Kelly v. Austin (Sup.) 728.

§ 818. Evidence, in an action on a foreign
§ 253. A judgment for 6 cents on a

judgment against a defendant not personally
plaint to recover $50 on an express contract
held unsustainable.—Lynch

served, held to warrant a finding that the ap-

Ogren (Sup.) pearance of her husband for her was not au-
564.

thorized.-White v. Glover (Sup.) 1059.
IX. OPENING OR VACATING.

$ 822. A judgment of the probate court of
Decree for distribution of property of decedent's last will of decedent held not to estop persons

another state admitting to probate the alleged
estate, see Executors and Administrators, 8 not parties to the proceedings to prove that the
315.

instrument offered by them for probate is de-

cedent's last will.-In re Sands' state (Sur.)
XIII. MERGER AND BAR OF CAUSES 426.
OF ACTION AND DEFENSES.

JUDICIAL SALES.
(A) JUDGMENTS OPERATIVE AS BAR.
$ 570. Under Code Civ. Proc. $ 1209, a judg-

On execution, see Execution, $ 326.
ment dismissing the complaint with costs at
the close of plaintiff's case held not a bar to a

JURISDICTION.
new action on the same cause of action.-Hope-
dale Electric Co. v. Electric Storage Battery Effect of appearance, see Appearance.
Co. (Sup.) 859.

Of commissioners of appraisal of property taken

for public water supply, see Waters and Wa-
(B) CAUSES OF ACTION AND DEFENSES ter Courses, $ 183.

MERGED, BARRED, OR CONCLUDED. Jurisdiction of particular actions or pro-
§ 594. A judgment for breach of contract of

ceedings.
employment, the damages sought to be recover- See Divorce, $ 85 ; Habeas Corpus, & 85; Man-
cd being what plaintiff would have earned dur damus, 88 154-187.
ing a certain month, had he not been prevent Accounting by executor or administrator, see
ed by defendants from rendering services, held Executors and Administrators, § 473.
a bar to further action for breach of the con- Claims against decedent's estate, see Executors
tract.-Rauh v. Wolf (Sup.) 13.

and Administrators, $ 250.
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER

116 N.Y.S.-76

com-

V.

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.
Instructions in civil actions, see Trial, $ 253.
Questions for jury in civil actions, see Trial,
8 142.

KNOWLEDGE.
Questions for jury in criminal prosecutions, see
Criminal Law, $ 741.

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
VERSION.

AND USE THEREOF.
(A) RIGHTS AND POWERS OF LAND (B) POSSESSION, ENJOYMENT, AND USE.
LORD.

§ 134. In the absence of an express.cove-
§ 55. The use of the roof of a leased building nant in lease restricting the tenant in his use
by the tenant for advertising purposes held not of the property, he may use it in any way con-
waste as between the landlord and tenant. sistent with the purpose for which it was erect-
Brown v. Broadway & Seventy-Second St. Real. ed.-Brown v. Broadway & Seventy-Second St.
ty Co. (Sup.) 306.

Realty Co. (Sup.) 306.
IV. TERMS FOR YEARS.

(D) REPAIRS, INSURANCE, AND IM-

PROVEMENTS.
(B) ASSIGNMENT, SUBLETTING, AND

Parol or extrinsic evidence as to agreement to
MORTGAGE.

make repairs, see Evidence, $ 442.
8 79. The assignee of leases as security for
a loan held entitled to collect the rents by sum-

8 152. Construction of a sign on the roof of
mary proceedings, etc., though defendant had teration and change" in the building within the

a leased building by the lessee held not an "al-
not defaulted.-Jackson v. Erkins (Sup.) 385.

meaning of the lease. --Brown v. Broadway &
$ 79. Where a loan was secured by the as- Seventy-Second St. Realty Co. (Sup.) 306.
signment of subleases, etc., and the mortgagee
was authorized to collect the rents and main (E) INJURIES FROM DANGEROUS OR
tain summary proceedings therefor, the mort-

DEFECTIVE CONDITION.
gagor of leases held impliedly bound to reim- Injuries caused by act of independent contractor
burse the mortgagee for necessary expenses in
collecting the rents, so that the mortgagee could

in excavating adjoining lot, see Master and

Servant, $ 322.
retain the leases as security for such expendi-
tures after the loan was paid.- Jackson v. Er 8 162. As a general rule, the owner of leased
kins (Sup.) 385.

premises is not liable to the lessee or any other
§ 8012. In an action for rent, evidence held person for the condition of the premises, nor
to show that defendant took possession as an

is there an implied warranty that the premises
assignee of the lease and was liable for the rent.

may be used for the purpose designed.-Lusk v.

Peck (Sup.) 1051.
- Talley V. James Everard's Breweries (Sup.)
657.

$ 165. The liability of a landlord for injuries

to a third person from a defective condition of
(C) EXTENSIONS, RENEWALS, AND OP- the premises is not affected by a provision in
TIONS TO PURCHASE OR SELL. the lease requiring the lessee to make repairs,

where the defect existed when the lease was re-
& 88. Letters between landlord's agent and a newed.-Lusk v. Peck (Sup.) 1051.
tenant held to constitute contract for leasing of
premises for another year.-Goodfield Realty Co.

$ 165. The owner of bleachers to be used by
v. Boden (Sup.) 703.

persons in witnessing games who leases the
same, knowing or having the means of knowing

of their dangerous condition from decay, is lia-
V. TENANCIES FROM YEAR TO

ble to a third person who is injured by a col-
YEAR AND MONTH TO

lapse of the bleachers during a game.-Lusk v.
MONTH.

Peck (Sup.) 1051.
$ 115. Where one goes into possession of land $ 168. A breach of a covenant by a landlord
under an invalid lease and pays a monthly rent, to make inside repairs held not to entitle the
he becomes a tenant from month to month.- tenants to recover for damage to their goods,
Israelson v. Wollenberg (Sup.) 626.

where they are at fault.–Baldwin y. Cohen

(Sup.) 510.
$ 115. A tenancy held to be at most only a
tenancy from month to month.-Broadway Bldg. the landlord in leasing and permitting to be used

$ 169. As to what constitutes negligence by
Co. v. Fergusson (Sup.) 630.

a place for amusement which was, because of
$ 116. The notice necessary to terminate a decay, in a dangerous condition, is for the jury
tenancy from month to month is one given with to determine.-Lusk v. Peck (Sup.) 1051.
in a reasonable time, and a notice given on July

$ 170. Where the premises when leased were
21st by actually moving out was sufficient to

in a defective condition, constituting a nuisance,
terminate the tenancy August 1st.-Broadway the liability of the landlord for the results of
Bldg. Co. v. Fergusson (Sup.) 630.

the nuisance continues, though the lessee may al-

so be liable.-Lusk v. Peck (Sup.) 1051.
VI. TENANCIES AT WILL AND AT
SUFFERANCE.

(F) EVICTION.
8 118. Where one goes into possession of land § 172. The bursting a frozen water pipe
under an invalid lease, his tenancy at its incep- and refusal to repair held not a constructive
tion is a tenancy at will.-Israelson v. Wol- eviction, relieving the tenant from rent.–Bald-
lenberg (Sup.) 626.

win v. Cohen (Sup.) 510.
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER

§ 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.
Of devise or legacy, see Wills, $ 858.

IV. ACTIONS.
LARCENY.

(B) PARTIES, PRELIMINARY PROCEED

INGS, AND PLEADING.
See Embezzlement.
Of goods in possession of carrier, liability of car-

$ 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,

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