of the amount thereof and of extended insurance would be reduced.-Perry v. Prudential Ins. Co. of America (Sup.) 751. § 367. A loan certificate held part of the contract of a life insurance policy, and within the contemplation of the parties.-Perry v. Prudential Ins. Co. of America (Sup.) 751. XI. ESTOPPEL, WAIVER, OR AGREEMENTS AFFECTING RIGHT TO AVOID OR FORFEIT POLICY. § 390. A fire insurance company held liable for a loss, though the policy was obtained through misrepresentation.-Smith v. Columbia Ins. Co. (Sup.) 775. $395. A condition in a health policy limiting the liability of the insurer held not waived.Dewey v. National Casualty Co. (Sup.) 136. XVIII. ACTIONS ON POLICIES. § 644. The court, on motion for an order directing compliance with an order for a bill of particulars held authorized to relieve plaintiff from furnishing further particulars on a specified condition.-Chartered Bank of India, Australia & China v. Nassau Fire Ins. Co. (Sup.) 1067. § 665. In an action on a fire policy, an instrument executed subsequent to the commencement of the action held not to prove the facts essential to a recovery.-Hammond Packing Co. v. Howey (Sup.) 1062. INTEREST. See Courts, § 188; Eminent Domain, §§ 238, 243; Partnership, § 255. Of judge, see Judges, §§ 42, 43. INTERPLEADER. See Banks and Banking, § 154. I. RIGHT TO INTERPLEADER. § 2. A city held not entitled to sue in equity for an interpleader against an officer de facto and an officer de jure, because it had an adequate remedy at law.-City of New York v. Voorhis (Sup.) 832. § 4. An action against a city by an officer for unpaid salary is not within Civ. Code Proc. 820, authorizing interpleader, with cer tain inapplicable exceptions, only in an action on contract.-Walker v. City of New York (Sup.) 1059. INTERPRETATION. See Attorney and Client, § 144; Contracts, §§ 164-187, Covenants; Deeds, § 90; Guaraty, $$ 36-43; Judgment, $ 526; Landlord and Tenant, & 44; Statutes, §§ 184-238; Wills, $$ 497-705. INTERPRETERS. $665. Insured seeking a recovery on a fire See Courts, §§ 43, 46. policy for a loss held required to prove specified facts.-Hammond Packing Co. v. Howey (Sup.) 1062. XX. MUTUAL BENEFIT INSURANCE. (B) The Contract in General. INTER VIVOS. See Gifts. INTOXICATING LIQUORS. INVOLUNTARY NONSUIT. § 719. Power of a fraternal beneficial as- See Estoppel, § 83. sociation to change the terms of an insurance contract determined.-Green v. Supreme Coun cil of Royal Arcanum (Sup.) 791. § 719. A fraternal beneficial association held See Dismissal and Nonsuit, §§ 58-75. empowered to amend its by-laws without an individual member's consent so as to increase the cost of insurance.-Green v. Supreme Council of Royal Arcanum (Sup.) 791. (E) Beneficiaries and Benefits. ISSUES. See Trial, §§ 253, 329. JOINDER. § 801. A petition to set aside a release and recover on an insurance policy held sufficient, without an offer to return the consideration. See Parties, §§ 14, 30. Joslyn v. Empire State Degree of Honor (Sup.) 563. JOINT TENANCY. § 801. A release void for fraud given by the beneficiary of an insurance policy to the in- See Tenancy in Common. surer may be attacked without any offer to return the consideration.-Joslyn v. Empire State Degree of Honor (Sup.) 563. INTENT. See Innkeepers, § 8; Statutes, § 184; Trusts, § 270; Weights and Measures, § 11; Wills, $$ 53, 164. JUDGES. See Justices of the Peace. IV. DISQUALIFICATION TO ACT. § 42. Interest which will disqualify a j to sit in a cause stated.-People v. White (Sup.) 300. $43. Judge of trial term held not disquali- | § 251. Where an issue tendered was that defied by pecuniary interest from trying action for penalties against a corporation in receivership.-People v. Whitridge (Sup.) 300. $49. The fact that the magistrate before whom accused was tried had sat in trial on him on previous occasions held not to disqualify the magistrate.-People ex rel. Enright, v. Meyers (Gen. Sess.) 1099. § 51. Motion to declare null and void the proceedings before a judge at trial term made at Special Term held properly made.-People v. Whitridge (Sup.) 300. 54. Judiciary Law, § 15, held peremptory, and that parties could not by consent confer jurisdiction upon a judge disqualified thereunder.-People v. Whitridge (Sup.) 300. JUDGMENT. See Appeal; Banks and Banking, § 49; Costs, $$ 55, 236; Criminal Law, § 1184; Divorce, $$ 165-172, 243, 326; Eminent Domain, 243; Execution; Justices of the Peace, $$ 130, 189; Mortgages, § 497; Pleading, § 345; Principal and Surety, § 110; Replevin. I. NATURE AND ESSENTIALS IN GENERAL. $ 17. A judgment against a corporation held void, because of insufficient service of summons. -Schaffer v. J. Lesowitz & Co. (Sup.) 42. $ 19. Where the trial court, though wrongfully excluding a defense pleaded to a note, found for the defendant on that defense, its judgment cannot be sustained.-Equitable Trust Co. of New York v. Nissen (Sup.) 41. IV. BY DEFAULT. (B) Opening or Setting Aside Default. 140. Defendant held not entitled to have judgment against him, rendered after he had abandoned his defense, vacated as though taken y default.-Demuth v. Kemp (Sup.) 249. $143. Refusal to open a default judgment eld erroneous.-Spector v. Gropper (Sup.) 464. $169. The necessary absence of a material vitness for defendant held to authorize the pening of a default judgment.-Guthorn v. Multiple Engineering Co. (Sup.) 399. VI. ON TRIAL OF ISSUES. (A) Rendition, Form, and Requisites in General. $197. Strictly speaking, a judgment of disissal should be entered only when intended to onsuit.-Jones v. Gould (Sup.) 1038. C) Conformity to Process, Pleadings, Proofs, and Verdict or Findings. 250. Plaintiff in an action for injunction 1 the theory and proof of obstruction of a ght of access held not entitled to relief on eory of interference with a private right of ay. Weeks v. New York, W. & B. Ry. Co. jup.) 888. fendant was an assignee of the original lessee, a judgment for plaintiff on a theory different from that set forth in the pleadings cannot be sustained.-Benoliel v. New York & Brooklyn Brewing Co. (Sup.) 606. § 256. A judgment upon the merits must rest upon findings of fact impressed in some form by verdict or by findings of the court.-Jones v. Gould (Sup.) 1038. VII. ENTRY, RECORD, AND DOCKETING. in an action tried by jury is the clerk's min§ 271. The warrant for entering judgment trial term has ended.-Jones v. Gould (Sup.) utes, and not an order made weeks after the 1038. VIII. AMENDMENT, CORRECTION, AND REVIEW IN SAME COURT. the pleadings, proceedings, and a default judg § 324. Evidence taken on a motion to amend ment, by changing defendant's first name, held not to show that the person whose name was sought to be substituted was served with process.-Jacobsohn v. Semel (Sup.) 95. § 326. An amendment of the pleadings, process, etc., nunc pro tunc, by substituting another person's name as defendant, held improper, unless the person so named was actually served, and knew he was the one proceeded against.-Jacobsohn v. Semel (Sup.) 95. XII. CONSTRUCTION AND OPERATION IN GENERAL. § 526. In determining extent to which judgment operates as an estoppel, it is necessary to determine what issues were involved in the action. King v. Beers (Sup.) 986. § 526. A judgment construed, and held, in view of the pleadings and the situation of the parties, not to refer to another judgment, but only to determine the order of priority as between certain claims.-King v. Beers (Sup.) 986. XIII. MERGER AND BAR OF CAUSES OF ACTION AND DEFENSES. (A) Judgments Operative as Bar. $562. The bringing of an action at law on a contract held not to bar a subsequent action to reform the contract.-Baird v. Erie R. Co. (Sup.) 329. § 570. A judgment of dismissal should be regarded as not adjudicating the merits, where there is neither direction of verdict nor a finding by the court to sustain a judgment on the merits, though the judgment as entered recites dismissal on the merits.-Jones v. Gould (Sup.) 1038. XIV. CONCLUSIVENESS OF ADJUDI CATION. (B) Persons Concluded. § 678. "Privies," concluded by judgment, defined.-Kahn v. Richard L. Walsh Co. (Sup.) 137. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER ОАТН. § 683. Assignee of a claim arising out of con- | VI. IMPANELING FOR TRIAL AND tract held not concluded by a former judgment in an action between his assignor and the defendant.-Kahn v. Richard L. Walsh Co. (Sup.) 137. tiff improperly getting before the jury the fart § 149. The denial of a continuance on plaisthat defendant had indemnity insurance heid improper.-Odell v. Genesee Const. Co. (Sup. 122. JUSTICES OF THE PEACE. IV. PROCEDURE IN CIVIL CASES. § 130. Motion for nonsuit after trial on the merits in justice's court held a bar to a su quent action between the same parties and on the same cause of action.-Brown v. Mathew son (Co. Ct.) 907. V. REVIEW OF PROCEEDINGS. (A) Appeal and Error. trial on reversal of judgment of a justice, where $ 189. Power of County Court to direct new appellant did not demand a new trial in the County Court, is, under Code Civ. Proc. § 30%, limited to cases where reversal is because judg ment is contrary to law.-Papenmeyer v. Ruddy (Sup.) 868. JUSTIFICATION. § 744. Defendant cannot plead that plaintiff XXII. PLEADING AND EVIDENCE OF § 951. The burden of establishing an estoppel by judgment is on him who asserts it.King v. Beers (Sup.) 986. JUDICIAL NOTICE. See Evidence, §§ 18-50. JUDICIAL POWER. See Constitutional Law, § 70. JURISDICTION. See Abatement and Revival, § 63; Action, § 25; Appeal, § 1024; Appearance; Courts; Dismissal and Nonsuit, § 75: Executors and Administrators, $ 525; Infants; Judges, § 54; Mortgages, § 316; Wills, § 705. JURY. See Counties; New Trial, §§ 44, 143; Towns, V. COMPETENCY OF JURORS, CHAL- § 131. In an action for personal injuries, a question propounded to the jurors as to whether they were interested in any indemnity insurance company held properly disallowed.Cdell v. Genesee Const. Co. (Sup.) 122. KNOWLEDGE. See Trusts, §§ 95, 234. LACHES. See Equity; Reformation of Instruments, § 32; LANDLORD AND TENANT. See Corporations, § 340; Courts, § 188: Essements, $ 26; Estoppel, § 68; Evidence, 33 242, 420, 587; Frauds, Statute of. § 116 Judgment, § 251; Mechanics' Liens, $5. Pleading, $$ 8, 80, 88, 93, 142; Railroads, i 139; Sales, § 418; Set-Off and Counterclaim. § 29; Tenancy in Common, § 28. I. CREATION AND EXISTENCE OF THE RELATION. § 5. An agreement for the letting of a apartment in an apartment hotel ordinar creates the relationship of landlord and ten between the parties.-Ashton v. Margolies (Sup)) 617. II. LEASES AND AGREEMENTS IN (B) Construction and Operation. § 44. A stipulation in a lease held not to fine a landlord's liability for loss of persoa " received from the tenant's wife.-Bryant v. | (D) Repairs, Auchmuty (Sup.) 471. III. LANDLORD'S TITLE AND RE VERSION. (A) Rights and Powers of Landlord. 55. A tenant held liable during the term for waste or the appropriation of materials severed by him.-Stockham v. Borough Bill Posting Co. (Sup.) 745. IV. TERMS FOR YEARS. (B) Assignment, Subletting, and Mort gage. § 802. In an action by a landlord against an assignee of an original lessee, evidence held admissible.-Benoliel v. New York & Brooklyn Brewing Co. (Sup.) 606. $ 802. Evidence and presumption as to effect of assignment of a lease stated.-Benoliel V. New York & Brooklyn Brewing Co. (Sup.) 606. (D) Termination. § 109. Lessors held to have accepted a surrender of a lease.-Friedlander v. Citron (Sup.) 427. V. TENANCIES FROM YEAR TO § 114. Act of a landlord, where tenants held over after the term, held to constitute a conclusive election not to treat them as tenants under an implied lease for a year.-Bleistift v. Diener (Sup.) 73. § 114. Where a tenant under a lease for a year or more holds over at the end of the term without any new agreement the landlord held bound to elect whether to treat him as a tenant from year to year or as a trespasser.Bleistift v. Diener (Sup.) 73. VI. TENANCIES AT WILL AND AT SUFFERANCE. § 118. An intending purchaser, entering into possession of real estate under an insufficient contract of purchase, is merely a tenant at will.-Burrows v. Fischer (Co. Ct.) 902. VII. PREMISES, AND ENJOYMENT AND USE THEREOF. (B) Possession, Enjoyment, and Use. $127. The continued physical possession of leased premises by a transferee of a tenant constitutes possession by the tenant himself.Simon v. Hermann (Mun. Ct.) 1014. § 128. A grantee taking property subject to a lease is not bound to put the lessee in possession.-Simon v. Hermann (Mun. Ct.) 1014. § 128. One demising property is not obliged under the laws of New York to put the lessee in possession.-Simon v. Hermann (Mun. Ct.) 1014. § 129. A lessee may maintain summary proceedings against a former tenant and his assignee when his term has expired.-Simon v. Hermann (Mun. Ct.) 1014. Insurance, and Improve ments. § 150. In the absence of agreement, held, there is no duty of the landlord to keep the demised premises repaired.-Garcewich v. Ascherman (Sup.) 418. § 158. Where a tenant waived a provision of a lease for the erection by the landlord of a building, he could not thereafter rescind the contract by reason of the default.-Porto v. O'Reilly (Sup.) 69. § 159. Evidence held to show that a tenant waived a provision of a lease requiring the erecO'Reilly (Sup.) 69. tion of a building by the landlord.-Porto v. (E) Injuries from Dangerous or Defective Condition. § 164. Unless the condition of the premises by which a tenant was injured was due to the landlord's negligence, or could have been remedied by reasonable care, the tenant cannot recover therefor.-Gianpaola v. Paoli (Sup.) 180. § 164. That the steps of premises were covered with ice is not negligence by the landlord, unless the ice was permitted to accumulate through his negligence.-Gianpaola V. Paoli (Sup.) 180. § 164. A landlord's liability for injury to a tenant caused by defective premises held based only on notice thereof, actual or imputed.Decker v. Osterweil (Sup.) 681. § 169. In an action against a landlord for injuries claimed to have been caused by slipping on an icy stoop, evidence held not to show that the landlord negligently permitted the ice to accumulate thereon.-Gianpaola v. Paoli (Sup.) 180. § 169. Happening of accident causing damage to occupant of floor below a tenant held presumptive evidence of negligence of defendant. Thomas Russell & Son v. Charles Craske Co. (Sup.) 375. § 169. Evidence held insufficient to show falling of plaster in a leased apartment was due to negligence of the landlord in not keeping in repair the part of the premises over which he reserved control, so as to make him liable.Garcewich v. Ascherman (Sup.) 418. § 169. Conversation between the wife of a tenant of an apartment and the janitress of the tenement building held no evidence against the landlord of a defect in the water pipe.-Garcewich v. Ascherman (Sup.) 418. § 169. An instruction predicating a landlord's liability to a tenant on his "notice" of the defect causing injury held improper.-Decker v. Osterweil (Sup.) 681. VIII. RENT AND ADVANCES. (A) Rights and Liabilities. § 188. In an action by a landlord for rent, breach of the landlord's covenant to repair held no defense.-Lutz v. Goldfine (Sup.) 63. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER § 308. In action by landlord to dispossess his tenant for keeping opium joint, evidence held not to sustain judgment for plaintiff.-Barrett v. Fook (Sup.) 23. § 318. Code Civ. Proc. § 2263, does not authorize a tenant, who voluntarily removes from the premises after dismissal of summary proceedings, to maintain an action for damages by dispossession.-Halperin v. Henry (Sup.) 599. § 56. Allegations of the republication by plaintiff in libel in his own newspaper of the speech charging him with crime held not proper matter in mitigation of damages arising from defendant's publication of an article, alleging that charges of crime were true and had been See Criminal Law. 88 945, 1211; Municipal proved.-Hearst v. New Yorker Staats Zeitung Corporations, § 174. (Sup.) 1089. LARCENY. § 59. The fact of the republication of the alleged libelous article by plaintiff in his own newspaper and his sale of it as news to other papers held proper to be shown in mitigation of damages. Hearst v. New Yorker Staats Zeitung (Sup.) 1089. § 59. Allegations that defendant had received its report of the speech for publishing which it was sued for libel from a reliable source held proper in mitigation of damages.-Hearst v. New Yorker Staats Zeitung (Sup.) 1089. IV. ACTIONS. (B) Parties, Preliminary Proceedings, and Pleading. § 94. In an action for libel, a separate de fense, demurred to, held not sustainable on the theory that the facts charged furnished some excuse for the libel.-Klaw v. New York Press Co. (Sup.) 224. § 94. In an action for libel for the publication of a charge that plaintiff had resorted to nefarious methods to throw suspicion on the motives of others, plaintiff's intentional sup pression of a date to give support to his attack on a public official held good as a partial de fense. Hearst v. New Yorker Staats Zeitung (Sup.) 1089. § 94. Defendant held not entitled to justify See Corporations, §§ 152, 216; Death; Mar- the alleged libelous article in its primary sense riage. without denying plaintiff's innuendo, attributing a libelous meaning to the article.-Hearst t New Yorker Zeitung (Sup.) 1089. LIBEL AND SLANDER. See Action, $ 50. I. WORDS AND ACTS ACTIONABLE, AND LIABILITY THEREFOR. $19. Publication held to amount to a charge of crime where the general reader would have § 94. A defense of partial justification which committed by plaintiff, but not of the charge pleads the truth of the statement of the acs crime based on those acts, is insufficient.Hearst v. New Yorker Staats Zeitung (Sup) 1089. |