105.

For causing death, see Death, § 35.

Bankruptcy, § 20; Courts.

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, CHALLENGES, AND OBJECTIONS. Presumptions on appeal, see Criminal Law, § 1144.

§ 110. Under Code Civ. Proc. § 1180, as 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 challenge. People v. Thayer (Sup.) 821.

§ 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 limitation, see Limitation of Actions, § 95.

LABOR LAWS.

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

LACHES.

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

LANDLORD AND TENANT.

See Use and Occupation.

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 v. Wollenberg (Sup.) 626.

§ 23. An oral lease, not within the statute of frauds, held valid.-Sherry v. Proal (Sup) 234.

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.

V. REVIEW OF PROCEEDINGS.

(A) APPEAL AND ERROR.

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

$ 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.

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.

§ 802. 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.

§ 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.

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
person for the condition of the premises, nor
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
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.

the landlord in leasing and permitting to be used
§ 169. As to what constitutes negligence by
a place for amusement which was, because of
decay, in a dangerous condition, is for the jury
to determine.-Lusk v. Peck (Sup.) 1051.

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

(F) EVICTION.

$172. Proof that there were radiators of imperfect design and construction in the leased apartments, that the apartments were cold, and that the tenant complained thereof, held not to establish a constructive eviction, relieving the tenant from the payment of rent.-Martens v. Sloane (Sup.) 512.

$173. The cooking of food in the basement of a building by a tenant, in consequence of which odors found their way into the apart ments of another tenant, held not a constructive eviction, relieving him from the payment of rent.-Martens v. Sloane (Sup.) 512.

§ 178. Where a tenant took possession of premises in September, and, though bad odors which filled the apartment were immediately present and dampness arose as soon as steam heat was turned on, he remained in possession until the last of the following April, he waived the right to claim a constructive eviction by reason of the odors and dampness.-Heilbrun v. Aaronson (Sup.) 1096.

§ 178. Conduct of a tenant held not to show a forbearance of the tenant to exercise his right to claim a constructive eviction on account of certain conditions complained of pending an effort on his or the landlord's part to restore the premises to a proper condition.-Heilbrun v. Aaronson (Sup.) 1096.

§ 178. Sickness of tenant's child held not to prevent tenant's waiver of claim of constructive eviction by remaining in possession of the premises.--Heilbrun v. Aaronson (Sup.) 1096.

VIII. RENT AND ADVANCES.

(A) RIGHTS AND LIABILITIES. § 182. Where lessors orally agreed to reduce the rent, that no receipt was given for payments of the lesser amount in full for a month's rent would not give the lessors the right to recover the balance reserved in the lease.-Zindler v. Levitt (Sup.) 726.

§ 182. Effect of an oral agreement to accept a lower rent than that reserved in a lease stated.-Zindler v. Levitt (Sup.) 726.

§ 186. Lessees, having had the use of the premises for a month, held liable for a month's rent.-Feist v. Grivas (Sup.) 694.

§ 188. Unless expressly made so, the keeping of a covenant by the landlord to repair held not a condition to the payment of rent. Baldwin v. Cohen (Sup.) 510.

$ 190. Real Property Law (Laws 1896, p. 589, c. 547) § 197, permitting a tenant to surrender and release himself from rent where the building becomes untenantable, held to have nothing to do with the law of eviction, and not to relieve him from rent because of a frozen pipe bursting, on the theory of constructive eviction. Baldwin v. Cohen (Sup.) 510.

$195. Landlord held to have made out a prima facie case in an action to recover rent for an unexpired term and establish a lien on furniture as provided in the lease.-Howell v. Colson (Sup.) 565.

§ 195. Where a tenant held over after his term and paid a month's rent, after which he removed without notice, the landlord properly relet the premises.-Howell v. Colson (Sup.) 565.

$195. On abandonment by a tenant before termination of the lease, held, that the landlord owed him no duty to relet the premises.-William Knabe & Co. Mfg. Co. v. Dinwiddie (Sup.) 716.

mained after promise by his landlord to oust $ 200. Tenant held liable for the days he redisreputable people, but for no more.-Wetstein v. Grieco (Sup.) 25.

(B) ACTIONS.

Parol or extrinsic evidence of lease, see Evidence, § 442. Restraining prosecution of action pending de termination of action by tenant to cancel lease, see Injunction, § 26.

complaint in an action on lease contract, where § 230. Plaintiff held entitled to amend his amendment did not affect the issue.-Goodfield Realty Co. v. Boden (Sup.) 703.

§ 231. In an action for rent, evidence held to show that plaintiffs accepted another tenant. releasing defendant, prior to the expiration of the term.-Berman v. Thone (Sup.) 557.

§ 231. In an action for rent, evidence held to show that defendant had surrendered his lease and that plaintiffs accepted the same.Berman v. Thone (Sup.) 557.

§ 233. Whether there had been a surrender of possession by the tenant and acceptance by the landlord, so as to relieve the tenant from the rent sued for, held for the jury.-Baldwin v. Cohen (Sup.) 510.

IX. RE-ENTRY AND RECOVERY OF POSSESSION BY LANDLORD. Jurisdiction of municipal court, see Courts, 188.

§ 295. Labor Law (Laws 1906, p. 303, c. 178, as amended by Laws 1908, p. 1217, c. 426) $ 94, held to create a new remedy for a pre-existing right, and hence it was subject to a lease executed before its amendment, so as to cover the same.-Mandel v. Gottfried (Sup.) 667.

§ 303. A petition in summary proceedings under the labor law held, in view of Labor Law (Laws 1897, p. 462, c. 415) § 2, and Laws 1906, p. 303, c. 178, § 94, as amended by Laws 1908, p. 1217, c. 426, to be fatally defective.-Minsky V. Weller (Sup.) 628.

§ 303. As a prerequisite to the exercise of jurisdiction in summary proceedings, every re quirement of the statute must be strictly observed, and every essential affirmatively alleged, nothing being taken by implication.-Minsky v. Weller (Sup.) 628.

303. In view of Code Civ. Proc. § 2231, 2235, a petition for removal of a tenant and undertenants need not allege that the undertenants held over "without permission of the landlord." -Mando v. Kitchell (Sup.) 691.