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also evidence that the published matter was I. STATUTES OF LIMITATION.
false, and that defendant knew it to be false,
or did not have probable cause for believing it

to be true.-Ashcroft v. Hammond (Sup.) 362.

8 123. Whether a communication between

§ 5. Code Civ. Proc. $ 405, when considered
corporate stockholders in relation to the man-

in connection with section 414, held not to apply
agement of the corporation was one of qualified to an action on the bond of a claimant to at.
privilege is a question for the jury.-Ashcroft tached property authorized by Municipal Court
v. Hammond (Sup.) 362.

Act (Laws 1902, p. 1517, c. 580) $ 85.-Berner &

Freedman v. Walker (Sup.) 615.

§ 15. An agreement by directors that, in con-

sideration of a creditor holding its claim against
For sale of intoxicating liquors, see Intoxicating them, resulting from failure to file an annual re
Liquors, $$ 97, 106.

port, until the receivership should be closed,
Injuries to licensees, see Railroads, $$ 274–282. they waived any defense by way of limitations,
To operate shows, see Theaters and Shows, $ 3. held binding on them after the creditor bad aet.

ed upon it. ---Watertown Nat. Bank of Water-
I. FOR OCCUPATIONS AND PRIVI town v. Bagley (Sup.) 772.

§ 15. An agreement to waive limitations held,
Compliance with health regulation as condi- at most, to set the statute running from its

tion precedent to grant of license to milk ped- date, or from the date when the action is to be
dler, see Food, § 2.

brought, and not to waive the statute forever.
Mandamus to compel issuance, see Mandamus, -Watertown Nat. Bank of Watertown v. Bag.
88 87, 154.

ley (Sup.) 772.
Revocation of license of picture show, see Thea-
ters and Shows, $ 3.



Effect of proceedings in bankruptcy, see Bank-

ruptcy, $ 198.
Priorities between liens and right of dower, see

§ 46. A cause of action for breach of con-
Dower, $ 27.

tract for support by plaintiff held to have as

crued when decedent left plaintiff's house, and
Particular classes of liens.

to be barred by limitation after six years.-Ga
See Mechanics' Liens.

Nun v. Palmer (Sup.) 23.
Attorney's lien, see Attorney and Client, 88 182,

Pledge, see Pledges.

Vendor's lien on lands sold, see Vendor and
Purchaser, 8 281.

8 72. Short statute of limitations as to pres-

entation of claim by infant against decedent's

estate_ held suspended during infancy of claim

ant.--In re Cashman (Sur.) 1128.
See Curtesy ; Dower.
§ 15. Amounts credited on the principal to

reduce premiums on bonds bought by a testa-


mentary trustee above par held not to be in-
come payable to the executors of a life tenant. 8 95. Limitations (Code Civ. Proc. $ 389)
-In re Perkins' Estate (Sup.) 147.

commence to run against an action for the con-
$ 20. Expenses for carrying unimproved prop- version of corporate bonds from the time the
erty which has increased in value should be bonds were converted, and not from the dis-
charged on the trust fund, and not on the in-

covery of the person who converted them.-
come of the life tenant.-In re Coombs (Sur.) Lightfoot v. Davis (Sup.) 904.


See Insurance.

§ 127. Under Laws 1895, p. 2041, c. 1006, $

5, limiting the filing of claims for damages from
LIMITATION OF ACTIONS. the discontinuance of streets to six years, claims

which have been filed in time cannot, after the
See Adverse Possession.

period of limitations has expired, be increased.
Particular actions or proceedings.

--In re Spuyten Duyvil Road (Sup.) 857; In re

Stafford, Id.
Claims for damages caused by closing of street,

see Municipal Corporations, 404.
On claim against decedent's estate, see Execu-

tors and Adininistrators, $ 437.
On insurance policy, see Insurance, $ 622. See Intoxicating Liquors.



f 13. The rights of creditors obtaining, a
judgment after the commencement of an action (B) ACTS AND PROCEEDINGS OF PUB-
to foreclose a real estate mortgage executed

by the debtor are not affected by the insuffi-

ciency of the notice of lis pendens filed in the $ 87. Where a health officer is given discre-
foreclosure action.-Freedman v. Safran (Sup.) tionary power to grant or withhold licenses to

milk dealers, his discretion will not be reviewed
§ 16. A notice of the pendency of an action by mandamus.-People v. Owen (Sup.) 502.
held sufficient within Code Civ. Proc. 88 1670-
1672.-Freedman y. Safran (Sup.) 113.


$ 16. The notice of lis pendens authorized
by Code Civ. Proc. $$ 1670-1672, must con-

$ 154. An application for mandamus to com-
tain the names of the parties, a statement of pel a health officer to issue a milk peddler's
the object of the action, and a description which license, which charged in general terms that the
will indicate the property respecting which the refusal of a license was arbitrary, but stated no
action is brought.–Freedman v. Safran (Sup.) facts, held insufficient.-People v. Owen (Sup.)

$ 22. The rule at common law and in equity

§ 169. The Trial Term held not to have pow-
that an alienee of real estate pending a real er to dismiss an alternative writ of mandamus.
action takes subject to the judgment which may - People v. Dooling (Sup.) 371.
be rendered held changed by statute now em $ 187. Where a peremptory writ of manda-
bodied in Code Civ. Proc. $8 1670–1672.-Freed- mus has been awarded in the face of opposing
man v. Safran (Sup.) 113.

affidavits, the return must be regarded as true

on review, the same as if relator had demurred

thereto.-O'Grady v. Polk (Sup.) 290.
See Copyrights.


See Mandamus.

To lower court on decision on appeal, see Ap-
See Navigable Waters, 88 39, 44.

peal, $8 1194-1201.

By insurance companies, see Insurance, 8 36. Filing map of grades in proceedings to alter
By pawnbroker, see Pawnbrokers.

streets, see Municipal Corporations, $ 402.
Recovery of money loaned, see Money Lent.


See Vendor and Purchaser, $ 130.
See Statutes, § 97.


See Breach of Marriage Promise; Divorce.
As excuse for delay of contractor, see Contracts,

$ 3.
8 300.

A marriage consummated in Canada,

not voidable under Canadian law, held not void-

able in New York.-Donohue v. Donohue (Sup.)

See Insane Persons.

$ 50. Evidence held sufficient to establish a

common-law marriage.-In re Spink's Estate

(Sur.) 267.
Liability of employer for defects, see Master

and Servant, $ 101.

Expert testimony as to allotment, see Evidence,

8 536.
Element of slander, see Libel and Slander, 8 42.


Employés of municipal corporations, see Mu-

nicipal Corporations, $8 216-220.

Trade unions, see Trade Unions.

7. The granting of an alternative writ of

mandamus rests in the sound discretion of the 8 3. A contract by which a railroad com-
court.--People v. Owen (Sup.) 502.

pany agreed to hire an injured employé in con-
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER

sideration of a release of damages considered, business, computed and paid on July 15, 1904,
and held, that the only condition of employment making one-half of the period of the contract,
was the employé's ability to perform the duties and the second period, the end of the contrait,
and the occurrence of a vacancy.-Stanton v. December 15, 1904, calculations could not be
Erie R. Co. (Sup.) 375.

made before expirations of such periods, and,
§ 3 Contract of a railroad company with in- not having attempted an accounting at the end
jured employé to employ him as soon as he was of the first, his next opportunity would not
able to work and for so long as there was work

occur till the end of the next, period; the con-
to be done and he did it satisfactorily held not

tract being entire.-Pfaelzer v. Gassner (Sap.)
void as being unreasonable.-Stanton v. Erie R.

Co. (Sup.) 375.

§ 80. On an issue as to the profits of a busi-
§ 3. Agreement held not to create the rela- ness during a particular period, to determine
tion of master and servant.-In re Ballou (Co. a percentage due an employé for services, eri-
Ct.) 1118.

dence of a statement of its net worth to a com-
8 3. A writing, if not a contract of employ- / before the end of the contract period, was im-

mercial agency, referring to a date 12 weeks
ment, because not binding second party to per- material: and it was irremediable error to
form" any services, held to be regarded as a base a charge thereon, assuming that it show.
promise to employ second party, and his accept-
ảnce of it, by entering on his duties, established ed net profits.-Pfaelzer v. Gassner (Sup.) 15.
a contract.-Spatz v. Singer (City Ct.) 576.

$ 80. In an action for services, evidence held

insufficient to sustain a judgment for defend-
(C) TERMINATION AND DISCHARGE. ant.--Zeller v. Greenebaum (Sup.) 556.
Separately stating and numbering causes of ac-
tion in action for wrongful discharge, see

Pleading, $ 52.

Subject matter of counterclaim in action to re-|(A) NATURE AND EXTENT IN GENERAL

cover deposit as security for honesty of em-
ployé, see Set-Off and Counterclaim, 8 25.

$ 90. An employer need not anticipate and

provide against every possible danger to work.
§ 20. In the absence of a contract for an men, but is only bound to use reasonable care
unexpired specified term of service, the employ- for their safety.–Packtor v. City of New York
er has the absolute right, at any time and for (Sup.) 741.
any cause, to discharge his employés, and the
employés may, at any time and for any cause, (B) TOOLS, MACHINERY, APPLIANCES,
even at their own mere will, leave the employ-

ment.-Jones v. Maher (Sup.) 180.

$ 101. The duty of an employer is to keep his
& 30. A servant hired for a specified term ways and machinery in as reasonably safe cordi.
held properly discharged for misconduct.-Wies- tion as a reasonably prudent man would keep
elthier v. Cohen (Sup.) 559.

them.-Nyboe v. Stern (Sup.) 600.
$ 39. A complaint held sufficient to sustain $ 101. An employer must furnish an emplore
a recovery for breach of contract of employ a reasonably safe place to work and use reason-
ment.-Raub v. Wolf (Sup.) 13.

able care and foresight not to subject him to
8 40. In an action for breach of a contract unnecessary danger, taking into account any
to employ plaintiff as locomotive engineer as special danger in volved in the methods of work.
soon as a vacancy occurred, and he was able to -Pepe v. Utica Pipe Foundry Co. (Sup.) 921.
take the position, evidence held to show that a $ 109. Intestate's employer held not dezli-
vacancy which plaintiff cou have filled did oc- gent for not unhitching the team or directing
cur.-Stanton v. Erie R. Co. (Sup.) 375.

the driver to hold the reins before ordering in-
$ 40. A serrant, suing for a wrongful dis- testate to unload the wagon, so as to make him
charge, must prove a discharge before his term liable for injuries caused by falling from the
of services expired, but need not specifically wagon when the team started.-Packtor 5. City
prove his discharge without cause. --Toube v. of New York (Sup.) 741.
Rubin-Blankfort Co. (Sup.) 673.
§ 44. An instruction relating to the burden (C) METHODS OF WORK, RULES, AND

of proof, in an action for a wrongful discharge,
held misleading, and reversible error.–Toube v.

$ 141. A danger held not to be reasonably
Rubin-Blankfort Co. (Sup.) 673.

anticipated, so as to make it the master's duty

to formulate rules in regard thereto for the
II. SERVICES AND COMPENSATION. servant's protection.—Davenport V. Oceanic

Amusement Co. (Sup.) 609.

Exemption of wages from execution, see Exemp-

$ 182. A master held not liable for an injury
tions, $ 8.
Right of employé to examination of employer's if caused by a foreman's invitation to assume a

to a servant after his day's work was orer, eren
books in action for wages, see Discovery, & 84. dangerous position, in view of Laws 1906, D.

$ 70. Where an employé was to receive a 1682, c. 657.-Cavanagh v. Central New Eng.
percentage of the profits of his employer's l land Ry. Co. (Sup.) 313.

$ 201. An employer would be liable for in $ 252. A notice of injury to an employé, re-
juries to an employé, though they were in part quired by Employer's Liability Act (Laws 1902,
caused by the negligence of a fellow servant, if p. 1749, c. 600) $ 2, held sufficient, without desig-
the injury would not have happened but for nating the person charged with the duty of su-
the master's negligence in failing to furnish a perintendence, who was responsible for the acci-
safe place to work.-Pepe v. Utica Pipe Found dent:-Kalisher v. Browning, King & Co. (Sup.)
ry Co. (Sup.) 921.


$ 258. A petition for negligence held not

framed under the provisions of Laws 1902, p.
§ 219. Plaintiff, a stringer in a piano factory, 1748, c. 600, § 1, so as to make that act ap-
held to have assumed the risk of injury. plicable to the case.—Simpson v. Foundation
Bodette v. Foster-Armstrong Co. (Sup.) 504. Co. (Sup.) 878.
$ 219. A servant held to have assumed a dan-

$ 265. An employé, injured by falling from
ger as an obvious risk of the employment.--Dav- a scaffold, held not to show

that the scaffold
enport v. Oceanic Amusement Co. (Sup.) 609. was improper under Labor Law (Laws 1897,

p. 467, c. 415) § 18.-Connolly v. Peterson

§ 265. In an action for injuries caused by
$ 236. A railway employé held not in the ex- the breaking of a scaffold furnished by the mas-
ercise of reasonable care when injured by a ter, evidence held to rebut the presumption of the
train.-Cavanagh v. Central New England Ry. master's negligence arising from the breaking,
Co. (Sup.) 343.

under Labor Law (Laws 1897, p. 467, c. 415) $

18.-Lorenzo v. Faillace (Sup.) 326.
8 250. An action by a servant against a mas-

$265. The presumption of negligence of a
ter for injuries, from the alleged failure of the der Labor Law (Laws 1897, p. 467, c. 415) § 18,

master, where a scaffold breaks when used, un-
master to promulgate rules for the government held rebuttable by uncontradicted evidence that
of its employés, is a common-law action, and the break occurred through the negligence of fel-
plaintiff cannot gain any aid from the employ-low servants.-Lorenzo v. Faillace (Sup.) 326.
er's liability act (Laws 1902, p. 1748, c. 600). -
Davenport v. Oceanic Amusement Co. (Sup.) $ 265. Under Labor Law (Laws 1897, p. 467,

c. 415) § 18, prohibiting a master from fur-
$ 25012. Laws 1906, p. 1682, c. 657, amend- suing for injuries from an alleged defective

nishing unsafe scaffolding, held, that a servant,
ing Laws 1890, p. 1082, c. 565, known as the scaffolding, need not introduce evidence of de-
"Railroad Law," by adding section 42a, held to fects in material.-Lorenzo v. Faillace (Sup.) 326.
apply to street railroads, and authorize an in-
struction that presence of defects were prima $ 278. Certain evidence held not to show
facie evidence of negligence.-Forton v. Cross- that a scaffold was unsafe, within Labor law
town St. Ry. Co. (Sup.) 746.

(Laws 1897, p. 467, c. 415) § 18.-Connolly v.
$ 252. If a master, by his letter to an in- Peterson (Sup.) 11.
jured servant, intended to consent that service $ 279. Evidence held insufficient to authorize
of notice of injury might be deferred until the a finding that the cover of a coal hole between-
extent of the injury should be known, and the decks on a steamer, into which a member of the
servant was led thereby to defer giving it, the unloading gang fell, was taken and left off by
master's estoppel to object that the provisions his fellow servants.-Clinton v. Munson S. S.
of Employer's Liability Act (Laws 1902, p. 1749, Line (Sup.) 383.
C. 600) $ 2, as to notice of injury, were not
complied with, would be involved. - Wolven v.

§ 284. Whether a master waived the require-
Gabler (Sup.) 359.

ment of Employer's Liability Act (Laws 1902,

p. 1749, c. 600) 8 2, of notice of a servant's in-
8 252. If a master consented that the giving jury, held to bé for the jury.-Wolven v. Gabler
of a notice of injury to a servant, required by (Sup.) 359.
Employer's Liability Act (Laws 1902, p. 1749, c.
600) $ 2, within 120 days after the accident,

§ 286. Evidence of negligence, where an em-
should be deferred until the extent of the in: ployé of a steamship company, in unloading its
jury was known, and the consent was acted steamer, fell into an uncovered bole between-
on by the servant, a notice given 2 weeks after decks, held sufficient to go to the jury.-Clin.
removal from a hospital held sufficient.-Wolven ton v. Munson S. S. Line (Sup.) 383.
v. Gabler (Sup.) 359.

§ 286. Where an engineer unfamiliar with
$ 252. Notice to employer of injury to serv-

the road failed to act on the rule of the com-
ant, required by Employer's Liability Act (Laws pany as to entering yard limits, and ran into a
1902, p. 1749, c. 600) § 2, held to be for the em-train, injuring a brakeman, held error to submit
ployer's benefit, and waivable by him, either by the question whether the company should have
words or acts.-Wolven v. Gabler (Sup.) 359. supplied the engineer with a pilot.–Biehl v.
8 252. The word "cause,” as used in Em-

Erie R. Co. (Sup.) 621.
ployer's Liability Act (Laws 1902, p. 1749, c. 8 286. Evidence in an action for the death
600) $ 2, relating to notice of an injury to an of a brakeman held insufficient to entitle plain-
employé, defined. --Kalisher v. Browning, King tiff to go to the jury on the question whether de-
& Co. (Sup.) 836.

fendant should have adopted a rule against
For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER

stop, signals when kicking cars.-Braun v. New $ 306. For the acts of the servant, within
York Cent. & H. R. R. Co. (Sup.) 668.

the general scope of his employment, while en-
§ 286. A plank along which a servant was gaged in his master's business, and done with a
employed to wheel dirt held a way which the view to the furtherance thereof, and in the mas-
master was bound to make safe.-Trentacoste v. whether the act be done negligently, wantonis,

ter's interest, the master will be responsible,
Cronin (Sup.) 755.

or even willfully.-Wallace v. John A. Casey Co.
8 286. In an action for injuries to a servant (Sup.) 394.
sustained while assisting in lowering metal
flasks into a pit in a pipe foundry, whether de (B) WORK OF INDEPENDENT CON-
fendant was negligent in permitting the flasks

to be lowered in the ordinary manner held for
the jury.- Pepe v. Utica Pipe Foundry Co. which building material was piled held not er.

§ 318. Owners of a building in front of
(Sup.) 921.

cused from liability for injury to a pedestrian
§ 286. In an employe's action for injuries because of the work being done by an independ-
sustained while assisting in lowering molds into ent contractor.--Friedman v. City of New York
a pit in a pipe foundry, whether defendant was (Sup.) 750.
negligent in erecting a structure requiring a
method of work so dangerous to workmen in to the goods of a tenant by the collapsing of

§ 322. The owner held not liable for injuries
plaintiff's position held for the jury.-Pepe v.
Utica Pipe Foundry Co. (Sup.) 921.

the building after the shoring was removed by

an independent contractor.-Paltey F. Egan
§ 288. It was a question for the jury wheth-(Sup.) 889.
er the servant, knowing the insecurity of the

way, assumed the risk.-Trentacoste v. Cronin
(Sup.) 755.

Admissions by employés, see Evidence, & 243.
§ 288. In a servant's action for injuries sus $ 330. In an action against a master for in-
tained while assisting to lower and place a juries caused by the negligence of a servant,
metal flask into a pit in a pipe foundry, whether burden of proof of relationship between de
plaintiff assumed the risk of injury from doing fendant and the servant held to be on plaint.i.
the work in the customary manner held for -Silverman v. Garibaldi (City Ct.) 780.
the jury.-Pepe v. Utica Pipe Foundry Co. $ 332. In an action for negligence an instruc-
(Sup.) 921.

tion as to an admission of defendant's superic-
§ 289. Question whether a motorman who tendent held reversible error because misstating
was injured in a collision was guilty of con-

the admission.-Wallace v. John A. Casey Co.
tributory negligence held for the jury.-Forton (Sup.) 394.
v. Crosstown St. Ry. Co. (Sup.) 746.

$ 2974. Where a servant assumed the risk, LATION BY THIRD PERSONS.
it was the court's duty to set aside a verdict in Liability of trade unions and their members,
his favor, whether his action was based on the

see Trade Unions, $ 8.
employer's liability act (Laws 1902, p. 1748, c.
600) or at common law.–Bodette v. Foster-Arm- Restraining unlawful acts, see Injunction, i

Restraining interference, see Injunction, $ 109.
strong Co. (Sup.) 504.

IV. LIABILITIES FOR INJURIES TO Right of strikers to persuade third persons not

to enter employment, see Torts, $ 10.

$ 301. Master held liable for the negligence

§ 339. Servants may even persuade former
of a person employed by his janitor to do the fellow workmen remaining in the service to
latter's work. though without the master's leave and join them in the strike, though they
knowledge.—Ellefson v. Singer (Sup.) 453.

may not lawfully employ violence, threats, or

verbal abuse.-Jones v. Maher (Sup.) 180.
§ 302. In case of alleged willful or reckless
acts, the test of the master's liability is whether

the act was done within the general scope of the
employment or to further the master's business, Authority to revoke license of picture show,
or whether it was done for some other purpose see Theaters and Shows, $ 3.
without having his interest or service in mind.-
Wallace v. John A. Casey Co. (Sup.) 394.

$ 302. A master is not permitted to deny See Damages, $ 124.
that an act of his servant was done by his own
negligence, if done within the course of the em-

ployment in furtherance of the master's busi-
ness.-Wallace v. John A. Casey Co. (Sup.) 394.

$ 304. The rule respondeat superior held not (E) SUBCONTRACTORS AND CONTRACT.
to extend to the negligence of an employé in giv-
ing away wood resulting in injury to one identi-

fied with a recipient of the master's charity. $ 113. A promise by a building contractor
Wallace v. John A. Casey Co. (Sup.) 394. to pay the claim of a third person out of the

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