187(1) (N.Y.Mun.Ct.) In an action for rent it is not a defense under Real Property Law, § 227, providing for release in case of untenantable condition of premises, that the premises were vacated by direction of a municipal depart ment because of noncompliance with its orders. where the lease does not obligate the landlord to comply with such orders.-Younger v. Campbell, 158 N. Y. S. 649. name "trailed" defendant and her daughter to II. PRIVILEGED COMMUNICATIONS, 190(2) (N.Y.Sup.) In an action for rent, ev-36 (N.Y.Sup.) Publication by newspaper reidence that plaintiff, with defendant's consent, lating to patent medicine and its manufacturer stored an automobile body on the premises, the is not privileged.-Patten v. Harper's Weekly defendant furnishing a key when requested, Corp., 158 N. Y. S. 70. shows none of the elements of an actual partial eviction.-Hirschman v. Kuechle, 158 N. Y. S. 734. 227 (N.Y.CityCt.) Where landlord, under provision of lease, relets for benefit of tenant, action against tenant for deficiency, begun before termination of term, is premature.Kamioner v. Balkind, 158 N. Y. S. 310. 231(6) (N.Y.Sup.) Evidence in an action for rent of premises held to require judgment for plaintiff. Freedman v. Putnam, 158 N. Y. S. 691. 233(3) (N.Y.Sup.) It is error to dismiss, after proof thereof, a counterclaim for use of a portion of the premises occupied by the landlord.-Hirschman v. Kuechle, 158 N. Y. S. 734. LEASE. See Associations, 19; Evidence. 441: See Executors and Administrators, 3. LETTERS. See Evidence, 271. LIBEL AND SLANDER. I. WORDS AND ACTS ACTIONABLE, 41 (N.Y.Sup.) Publication by newspaper, relating to patent medicine and its manufactur er, is not qualifiedly privileged.-Patten v. Harper's Weekly Corp., 158 N. Y. S. 70. 48(1) (N.Y.Sup.) Right of "fair comment" is limited to facts; mere belief in truth of pubWeekly Corp., 158 N. Y. S. 70. lication being insufficient.-Patten v. Harper's charges that plaintiff is a swindler, a fraud, and In publication exposing worthless medicine, a health poisoner are not comment.-Id. IV. ACTIONS. (B) Parties, Preliminary Proceedings, and Pleading. 82 (N.Y.Sup.) That a libelous publication is contained in a novel does not exempt the libeler from liability, as the party libeled, by appropriate allegations, may connect himself with the libel in which he is named by a fictitious name, named not at all, or only indirectly referred to.-Corrigan v. Bobbs-Merrill Co., 158 N. Y. S. 85. 89(1) (N.Y.Sup.) Where special damages are not alleged, no damages are recoverable, unless the words published are libelous per se.-Davis v. Kelly, 158 N. Y. S. 145. Where no special damages are claimed, the publication of words libelous per se must be alleged.-Id. 91 (N.Y.Sup.) Denial of innuendoes is surplusage, where publication of libel is denied.Patten v. Harper's Weekly Corp., 158 N. Y. S. 70. 94 (1) (N.Y.Sup.) Plea of justification of libel should be as broad as charge and the very charge attempted to be justified.-Patten v. Harper's Weekly Corp., 158 N. Y. S. 70. 94 (4) (N.Y.Sup.) Denial of plaintiff's good repute is no defense to action for libel.-Patten v. Harper's Weekly Corp., 158 N. Y. S. 70. Where libel charged fraud and deceit in manufacture and sale of worthless medicine, plea of justification must allege that plaintiff knew his product was worthless.-Id. Plea of justification of libel, accusing plaintiff of responsibility for sale of patent medicine which merely alleges he was chief owner of medicine company, was insufficient.-Id. Where libel complained of is that a patent medicine works inevitably to hurt of victim, plea that it is without therapeutic value, except in special cases, is insufficient.-Id. 100(1) (N.Y.Sup.) Unnecessary innuendoes are not put in issue by denial.-Patten v. Harper's Weekly Corp., 158 N. Y. S. 70. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER Libel and Slander 158 NEW YORK SUPPLEMENT (E) Trial, Judgment, and Review. 123(2) (N.Y.Sup.) Whether defendant used the words published, and whether they would be understood by readers of average intelligence in the libelous sense charged, is for the jury. -Davis v. Kelly, 158 N. Y. S. 145. LICENSES. See Carriers, 8; Injunction, toxicating Liquors; Patents, ters and Shows. 77, 85; In218; Thea LIENS. V. PLEADING, EVIDENCE, TRIAL, 182(2) (N.Y.Sup.) A statute of limitations must be pleaded.-Cardwell v. Clark, 158 N. Y. S. 300. 184 (N.Y.Sup.) Where judgment was vacated more than 10 years after entry on motion of plaintiff, application of defendant to amend to set up statute of limitations should be granted, with permission to plaintiff to give new defense.-People v. further evidence on Raquette Falls Land Co., 158 N. Y. S. 467. LIQUOR SELLING. See Attorney and Client, 176; Bankruptcy, See Intoxicating Liquors. 192; Courts, 188; Mechanics' Liens. LIFE ESTATES. See Dower. LIS PENDENS. See Action, 69. LIVERY STABLE AND GARAGE LIMITATION OF ACTIONS. See Action, mm 50; Adverse Possession; See Negligence, 93. I. STATUTES OF LIMITATION. (B) Limitations Applicable to Particular Actions. LONGSHOREMEN. See Trade Unions, 7. LUNATICS. 21(1) (N.Y.Sup.) Where a bank pays a de- See Insane Persons. positor's money on a forged order, it breaks its contract with him, and a cause of action for the breach arises, which will be outlawed six MAGISTRATES' COURTS. years after the payment, under Code Civ. Proc. See Municipal Corporations, 636. as to limitations.-Parker-Smith V. MALICIOUS PROSECUTION. V. ACTIONS. 36(1) (N.Y.Sup.) In a suit by a minority stockholder to enjoin a railroad consolidation, in which leases of railroads claimed to be paral-56 (N.Y.Sup.) In action for false imprisonlel and competing are attacked, the undisturbed possession of the properties under the leases for 41 and 28 years, respectively, held to have ripened into a right that under statutes of limitation could not be challenged by plaintiff. Venner v. New York Cent. R. Co., 158 N. Y. ment and malicious prosecution, where the in- 71(3) (N.Y.Sup.) In suit for malicious prosecution, question of malice held for the jury.Neuowich v. Cohn, 158 N. Y. S. 344. MANDAMUS. See Public Service Commissions, 21. 23(1) (N.Y.Sup.) County officers may bring mandamus to compel the performance of duties over which they have supervision, or the performance of which is necessary to the perform ance of their own duties.-People ex rel. Schneid er v. Prendergast, 158 N. Y. S. 615. Where the comptroller refused to certify and audit the pay roll of clerks in a county clerk's office, the county clerk held not entitled to mandamus.-Id. MANSLAUGHTER. See Homicide. II. SUBJECTS_AND_PURPOSES OF RELIEF. (A) Acts and Proceedings of Courts, Judges, and Judicial Officers. 61 (N.Y.Sup.) Where County Court failed to 130. MARKETABLE TITLE. impose sentence on accused required by law, per- See Brokers, 61; Vendor and Purchaser, emptory writ of mandamus, requiring imposition of such sentence, may be awarded by Supreme Court, directing imposition of sentence.-Cropsey v. Tiernan, 158 N. Y. S. 948. See Divorce. MARRIAGE. (B) Acts and Proceedings of Public Off-~|| (N.Y.Sup.) Under the terms of Domestic cers and Boards and Municipalities. Relations Law, § 6, a marriage contracted by a person whose spouse by a prior existing marriage is living is void.-Barker v. Barker, 158 N. Y. S. 413. 97 (N.Y.) Under Highway Law, § 172, as amended by Laws 1912, c. 83, a board of supervisors is under duty, compellable by mandamus, after the state commissioner of highways has transmitted a statement of the miles of improved state highways in each town, to cause them to collect taxes for maintenance expense, section 134, as amended by Laws 1911, c. 646, not touching the matter.-People ex rel. Carlisle v. Board of Sup'rs of Onondaga County, 111 N. E. 1057, 217 N. Y. 424. 58 (2) (N.Y.Sup.) Under Code Civ. Proc. § 1743, refusal to submit to slight operation which would cure physical incapacity does not justify annulment of marriage, but, if dangerous operation is necessary, incapacity is "incurable" within law. Anonymous, 158 N. Y. S. 51. 58(5) (N.Y.Sup.) A marriage, void because of a prior existing marriage, is subject to annulment under Code Civ. Proc. § 1743.-Barker v. Barker, 158 N. Y. S. 413. 100 (N.Y.Sup.) Mandamus is proper remedy to enforce provisions of a law requiring transfer of a fund from one public officer to an-60(7) (N.Y.Sup.) In action to annul marother, where there is no dispute as to the facts. -In re Bristol, 158 N. Y. S. 503. 117 (N.Y.Sup.) Mandamus is proper remedy for a city to compel exclusion from statement of state board of equalization of assessed value of bank stock.-City of New York v. Schoeneck, 158 N. Y. S. 595. (C) Acts and Proceedings of Private Corporations and Individuals. 133 (N.Y.Sup.) Under Public Service Commissions Law, §§ 26, 49, subd. 2, and section 56, subd. 1, mandamus to compel a street railroad company to comply with an order of the commission requiring it to operate the maximum number of trains possible held an improper reinedy; such operation not being in all cases possible.-Public Service Commission for First Dist. v. Interborough Rapid Transit Co., 158 N. Y. S. 480. III. JURISDICTION, PROCEEDINGS, AND RELIEF. 154(9) (N.Y.Sup.) The moving papers for mandamus do not make proof of right, the facts set forth being on information and belief.-New York Rys. Co. v. Prendergast, 158 N. Y. S. 237. 159 (N.Y.Sup.) Where there is no substantial dispute as to facts, and no denial raises issue of fact, alternative writ of mandamus need not issue. In re Bristol, 158 N. Y. S. 503. 168(2) (N.Y.Sup.) Under Civil Service Law, $22, a veteran fireman, whose position is abolished and who brings mandamus to be transferred to a similar position, has the burden of showing that a vacancy exists which he is fitted to fill.-Edkins v. Wotherspoon, 158 N. Y. S. 710. See Mandamus. MANDATE. riage, evidence held insufficient to show that wife's incapacity has not been cured, or partially cured, and that husband has not been able to consummate marriage.-Anonymous, 158 N. Y. S. 51. 65 (N.Y.Sup.) Under Domestic Relations Law, 87, providing that a marriage of parties under 18 is void from the time its nullity is judicially declared, a court cannot dissolve such marriage ab initio.-Barker v. Barker, 158 N. Y. S. 413. MASTER AND SERVANT. See Commerce, 27; Customs and Usages, 15; Evidence, 243, 417; Frauds, Statute of, 53; Municipal Corporations, 220; Negligence, 101; Pleading, ~237; States. 53; Trade Unions; Trial, 191, 252, 350; Work and Labor. I. THE RELATION. (A) Creation and Existence. 5 (N.Y.Sup.) Where truckman needed extra help in moving a piano, and piano company agreed to reimburse him for what he paid the help, no relation of master and servant existed between piano company and one hired.-Brown v. Munn Piano Co., 158 N. Y. S. 1026. 6 (N.Y.Sup.) In an action by a night watchman against his employer for compensation, evidence held sufficient to show that plaintiff's services, after defendant removed his property from the factory premises, were rendered at the request and for the benefit of the owner thereof.-Guggisberg v. Kraus, 158 N. Y. S. 95. (B) Statutory Regulation. 162. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of num For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER ber sections 346-420, at the end of this topic, I whom a servant worked to guard an elevator where the matter in this and future index di- shaft or hoist in accordance with the statutegests will be found. Rinando v. D. C. Weeks & Son, 158 N. Y. S. 365. (C) Termination and Discharge. 35 (N.Y.Sup.) Where defendant hired plaintiff for one year, and later discharged him before the term was completed, plaintiff could not recover any sum due thereafter as wages, but his remedy was by action for damages for breach of contract.-Saunders v. Stern Bros., 158 N. Y. S. 878. II. SERVICES AND COMPENSATION. (B) Wages and Other Remuneration. 73(4) (N.Y.Sup.) A contract to act as a salesman for a hat manufacturer held an entire one, so that, where plaintiff breached his contract by quitting employment during the middle of the season, there could be no recovery of commissions earned up to that time.-Goodkind v. Steinberg Bros. & Kripitzer, 158 N. Y. S. 172. 124(1) (N.Y.) The master's common-law duty is to provide a reasonably safe place for work, including a reasonable inspection of the place and appliances for work.-Mautsewich_v. United States Gypsum Co., 112 N. E. 471. 217 N. Y. 593. 124(6) (N.Y.) If a defective and dangerous condition of a place of work or of an appliance could have been discovered by a reasonable inspection, an inadequate and insufficient inspeetion, failing to discover such defect or danger, will not relieve an employer from liability aris ing therefrom.-Mautsewich v. United States Gypsum Co., 112 N. E. 471, 217 N. Y. 593. (C) Methods of Work, Rules, and Orders. 137(4) (N.Y.Sup.) Where express train came into a station substantially behind its 80(4) (N.Y.Sup.) In suit on a contract of schedule, the engineer should have signaled the employment, set out by plaintiff in his plead- approach to warn a freight conductor having ing, which provided that the extra payment to cross the express track to register his arsued for should be made on a certain contin- rival.—McAuliffe v. New York Cent. & H. R. K. gency, complaint, containing no allegation of Co., 158 N. Y. S. 922. happening of contingency or of default by de-146 (N.Y.) Under Labor Law, §§ 119, 120, fendant in regard thereto, held insufficient.— Ainsworth v. Acheson Harden Co., 158 N. Y. S. 630. III. MASTER'S LIABILITY FOR IN. JURIES TO SERVANT. (A) Nature and Extent in General. 87 (N.Y.) Railroad Law. § 64, charging company with knowledge of defects and making defects prima facie evidence of negligence, held to be given a construction liberal and commensurate with its purpose.-Kent v. Erie R. Co., 111 N. E. 1071, 217 N. Y. 349. 872. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of number sections 346-420, at the end of this topic, where the matter in this and future index digests will be found. 97(2) (N.Y.Sup.) An employer is not liable for injuries to an employé resulting from an unauthorized act of another employé, the doing of which act the master could not have anticipated.-Ross v. Rodgers & Hagerty, 158 N. Y. S. 338. (B) Tools, Machinery, Appliances, and Places for Work. 103(1) (N.Y.) Where a duty of inspection rests upon an employer, it cannot be delegated! so as to relieve him from the consequences of a failure to inspect or of an inadequate inspection.-Mautsewich v. United States Gypsum Co., 112 N. E. 471, 217 N. Y. 593. ~109 (N.Y.) A master is bound to furnish in strumentalities reasonably safe and suitable for the authorized use to be made of them by a servant, which duty relates to a team of horses, as well as to the harness and truck and the appliances connected therewith.-Miller v. Blood, 112 N. E. 383, 217 N. Y. 517. 121(7) (N.Y.Sup.) It is the duty both of the general contractor and of the subcontractor for as amended by Laws 1913, c. 145, §§ 10, 11, rules prescribed by the Commission of Labor supplementary to the common-law rules to insure the safety of employés in mines, etc., are ordinarily compulsory, and it is the duty of the employer. not only to adopt such rules, but to enforce them.-Mautsewich v. United States Gypsum Co., 112 N. E. 471, 217 N. Y. 593. (E) Fellow Servants. 182(1) (N.Y.) Under the provisions of Labor Law, $ 200, as amended by Laws 1910, e 352, as it existed in 1912, an employer is liable for injuries to an employé resulting from negligence of employer's superintendent not occur ring in the exercise of superintendence but in the performance of such an act as would naturally be performed by an ordinary fellow serv ant.-Pelow v. Oswego Const. Co., 112 N. E. 379, 217 N. Y. 506. 182(1) (N.Y.Sup.) Under Labor Law, § 200, subd. 2, as amended by Laws 1910, c. 352, fellow servant defense is not available where injuries to employé are caused by negligence of one intrusted with superintendence or with anthority to direct employé, though negligence was in detail of work.-O'Connor v. James Stewart & Co., 158 N. Y. S. 485. In Labor Law, § 200, subd. 2, as amended by Laws 1910, c. 352, "superintendence" means all superintendence, and a detail of superintendence is as much a part of superintendence as a principal act.-Id. 185(2) (N.Y.Sup.) One is not liable for injury to his employé by the act of an officions fellow employé in suddenly dumping a gravel car so that the contents fall on him, where the act was unauthorized.-Ross v. Rodgers & Hagerty, 158 N. Y. S. 33S. 1989) (N.Y.) A brakeman performing a mere detail of a switching operation by conver ing the signals to the engineer was a fellow servant. Kinney v. New York Cent. & H. R. ~~~265(14) (N.Y.Sup.) Labor Law, § 202a, (F) Risks Assumed by Servant. casting the burden of proof of plaintiff's con- while in course of his employment, in driving (G) Contributory Negligence of Servant.278(1) (N.Y.) In servant's action for injury (H) Actions. master to guard an elevator shaft as required 25034. Owing to the great increase of mat- 252 (N.Y.Sup.) A notice of injury under the 264(7) (N.Y.Sup.) Under complaint, bill of 264(9) (N.Y.Sup.) Under Labor Law, § 202, v. Erie R. Co., 111 N. E. 1071, 217 N. Y. 349. 286(31) (N.Y.Sup.) In action against rail- 289(17) (N.Y.) Evidence as to carpenter's 289(19) (N.Y.Sup.) It cannot be held, as 264(10) (N.Y.Sup.) In an action for the 265(6) (N.Y.) Under Railroad Law, § 64, Liability Act for injuries to a locomotive en- Evidence in an action under the Employers' For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER |