Слике страница

VII. MOTION TO QUASH OR DISMISS, [ settlement, had not been denied.-Rubin v.
Siegel, 168 N. Y. S. 744.

(B) Property, Conveyances, and Incumbrances.

150 (N.Y.Sp.Sess.) In passing upon defendant corporation's demurrer to information charging it with unlawfully fastening factory doors, in violation of Labor Law, § 2, as amend-46 (N.Y.Sup.) Trespass may be enjoined, ed by Laws 1915, c. 650, court cannot look to lief and injury is irreparable and cannot be if an ejectment judgment would not afford redeposition taken by committing magistrate.People v. Interborough Rapid Transit Co., 168 compensated, except through multiplicity of suits.-Donovan v. Kissena Park Corp., 168 N. Y. S. 1035.

N. Y. S. 357.


159(3) (N.Y.) Error in indictment in charging crime to have been committed after the filing of the indictment cannot be amended under Code Cr. Proc. § 293.-People v. Van Every, 118 N. E. 244, 222 N. Y. 74.


See Libel and Slander, 9.


~99; Judges,

See Adoption; Habeas Corpus,
33; Municipal Corporations,

58(1) (N.Y.Sup.) Minor, who without par-
ents' knowledge or consent registered in col-
lege of dentistry and paid tuition fee for one
year and was unable to attend. might elect to
avoid the contract.-Kamil v. New York Col-
lege of Dentistry, 168 N. Y. S. 527.

Minor, who had practically received no benefits under his contract of registration in college, on disaffirming contract, was entitled to return of tuition fee paid by him.-Id.


See Innkeepers, 12.


See Courts, 188-190.


See Indictment and Information.


See Descent and Distribution.


See Taxation, 860-900.


See Corporations, 549; Receivers,
Street Railroads, 57; Waste.

Removal of sand from defendant's property does not authorize injunction, since plaintiff may recover its value at law.-Id.

débris deposited on plaintiff's property and reInjunction requiring defendants to remove place it with sand, which they had removed, held improper, where compliance would cost approximately value of property and removal of sand could be compensated for by money judgment for much smaller amount.-Id.

(C) Contracts.

57 (N.Y.Sup.) Provision of defendant's contract of employment as window washer for such time as plaintiffs shall be satisfied with his work, that he shall not engage therein for a year after leaving their employ, held too inequitable to be enforced by injunction.— Gilbert v. Wilmer, 168 N. Y. S. 1043.

60 (N.Y.Sup.) That services are neither special, unique, nor extraordinary is reason for refusing to enjoin breach of provision of defendant's contract of employment as window washer, that he shall not engage therein for year after leaving plaintiff's employ.Gilbert v. Wilmer, 168 N. Ÿ. S. 1043.


See Civil Rights, 5.

10 (N.Y.Sup.) A hotel keeper's rule prohibiting a man from visiting a woman in her room without permission held no defense to an action against the hotel keeper for damages because of a charge of immorality, where hotel keeper knew that the charge was unfounded.Boyce v. Greeley Square Hotel Co., 168 N. Y. S. 191.

In a guest's action against a hotel keeper for damages growing out of a charge for immorality, a letter of apology from defendant's manager held admissible.-Id.

A verdict of $8,000 was not excessive, in an action by a guest against a hotel keeper for damages arising from a charge of immoral conduct, where she was an invalid, and her nervous condition was made worse, and she suffered 182; shame and anguish.--Id.


12 (N.Y.Sup.) Where boarding house keeper closed her premises after death therein by infectious disease, and all her guests left, held, that she could not recover for board contracted Geist, 168 N. Y. S. 21. for period after she closed premises.-Kohn v.

(A) Actions and Other Legal Proceedings.
26 (6) (N.Y.Sup.) Action at law will not be
enjoined, upon ground that controversy had
been settled, where right to file supplemental
answer in law action, setting up such alleged See Evidence, CO.


For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER


See Descent and Distribution, 99.


188(2) (N.Y.Sup.) In action on note given for premium on life policy, and assigned by insufficient to show that plaintiff agreed there company to plaintiff, its agent, evidence held should be no liability on defendant's part, and that policy could be surrendered at any time.— Campbell v. Toole, 168 N. Y. S. 609.

V. PROPERTY AND CONVEYANCES. 64 (N.Y.Sup.) The court may make gifts out of the estates of insane persons to persons of remote kin not entitled to any interest in the estate, where the court is satisfied that the incompetent would approve if sane.-In re Farmers' Loan & Trust Co., 168 N. Y. S. 952.188(2) (N.Y.Sup.) Parol evidence of oral


See Bankruptcy; Banks and Banking, 309; Corporations, 549-559.


See Master and Servant, 124.


See Vendor and Purchaser, 182, 186.


To jury, see Trial, 194, 286, 312; Criminal Law, 824.


See Death, 5; Good Will, 6, 7. V. THE CONTRACT IN GENERAL. (A) Nature, Requisites, and Validity. 130(1) (N.Y.) An "application" for life insurance, is a proposition or request for a contract of insurance the statements of which upon acceptance bind the applicant.-Whipple v. Prudential Ins. Co. of America, 118 N. E. 211, 222 N. Y. 30.

141(2) (N.Y.) Insurance company may waive a condition that the policy should not take effect until the first premium is paid.-Whipple v. Prudential Ins. Co. of America, 118 N. E. 211, 222

N. Y. 30.

A provision in a policy of life insurance that no conditions could be waived except by indorsement by certain officers cannot effect the waiver of a condition in the application that the policy should not take effect until the premium was paid. Id.

(B) Construction and Operation. 163(3) (N.Y.Sup.) Policy, excluding liability for loss of models and patterns, unless specifically assumed, but accompanied by typewritten slip covering machines and appurtenances, apparatus, and supplies, held to cover patterns for parts of machines manufactured by insured. Bertine v. North River Ins. Co. of City of New York, 168 N. Y. S. 156.

165 (N.Y.Sup.) Policy, excluding liability on premises where insured's property was being manufactured, held not to cover patterns sent to a foundry to have machine parts made, and destroyed by a fire in such foundry.-Bertine v. North River Ins. Co. of City of New York, 168 N. Y. S. 156.

contract of insurer to charge no premium held insufficient to sustain finding, in action for premiums, that such contract had been made.— Massachusetts Bonding & Ins. Co. v. Thomson, 168 N. Y. S. 973.


212 (N.Y.Sup.) If an agreement by which deceased assigned life policies to secure pay ment of salary of corporation officer was against public policy as a breach of trust, deceased's executors could not recover from the officer.-Fabre v. O'Donohue, 168 N. Y. S. 90.


(C) Guaranty and Indemnity Insurance. 514 (N.Y.Sup.) Where motor company borrowed money to pay judgments against it for injuries inflicted by its automobiles, held, indemnity insurer could not escape liability, without proof of bad faith, although motor company had no property out of which judgment against it could have been satisfied.-Campbell v. London & Lancashire Indemnity Co. of America. 168 N. Y. S. 300.


665(4) (N.Y.Sup.) In action on policy, evidence held insufficient to show that clothing. a stole, and some opera glasses, which insured was unable to find after moving, were lost through burglary, theft, or larceny.-Marks v. New Jersey Fidelity & Plate Glass Ins. Co. of Newark, N. J., 168 N. Y. S. 627.

668(3) (N.Y.) In fire policies insuring from 29th day of July, 1913, at noon, to 29th day of July, 1914, at noon, words "at noon" were not ambiguous; hence construction was for court.Goodman v. Caledonian Ins. Co. of Scotland. 118 N. E. 523.

668(10) (N.Y.Sup.) In action on policy indemnifying master for loss by injury to serv ants, excepting liability for injuries to persons employed contrary to law, question of age of employé as within or without Labor Law, § 93. prohibiting employment of children under 16, held for jury.-John H. Wiemers, Inc., v. American Fidelity Co., 168 N. Y. S. 874.

668(15) (N.Y.) It could not be held as a matter of law that an insurance agent designated as "Manager Western Division" had no authority to waive conditions in a life policy.-Whipple v. Prudential Ins. Co. of America, 118 N. Ë. 211, 222 N. Y. 30.

A waiver as to conditions in an application for life insurance, not express, is essentially a matter of intention, being a question of fact where

reasonable minds may differ as to inferences to be drawn from established facts.-Id.

lished market value; the amount excavated being subject to computation.-Faber v. City of New York, 118 N. Ē. 609, 222 N. Y. 255.


Evidence held sufficient to take to the jury the question whether a life insurance company waived a condition in an application that the policy should not take effect until the premium was 68 (N.Y.) Whether contractor to construct paid.-Id.

670 (N.Y.Sup.) In action on policy covering automobile, held, that general verdict for insurer imports, not merely failure to establish claimed value, but that worn-out car was insured at so much more than its worth that valuation amounted to affirmative fraud, avoiding policy.-Hoffman v. Prussian Nat. Ins. Co. of Stetin, Germany, 168 N. Y. S. 841. XX. MUTUAL BENEFIT INSURANCE. (B) The Contract in General.

foundations for bridge is entitled to interest on amount found by jury to be value of rock excavations from date of presentation of claim to comptroller is matter of law.-Faber v. City of New York, 118 N. E. 609, 222 N. Y. 255. INTERNATIONAL LAW.

See War.


See Depositions; Discovery.


726 (N.Y.Sup.) Whether decedent was member in good standing would depend upon construction of by-laws of defendant benev- See Commerce. olent society.-Pagliuca V. Italian Barbers' Benev. Soc. of New York, 168 N. Y. S. 837.

(D) Forfeiture or Suspension,


See Descent and Distribution.


See Civil Rights; Constitutional Law, 45;
War, 4.

765 (N.Y.Sup.) Injunction order to maintain status quo, with bond to secure defendant from all loss, in action against fraternal insurance society to determine whether member is subject to increased assessments, held to prevent his suspension with forfeiture of rights, though he had not paid or tendered assessments.-Evans v. Supreme Council of Royal 462 (N.Y.Sup.) Under Liquor Tax Law, Arcanum, 168 N. Y. S. 550.

[blocks in formation]


as amended by Laws 1917, c. 623, including amendment of section 8, subd. 1, and section 8, par. 9, subd. c. (3), (4), (7), statement signed by two of three commissioners to reapportion places for traffic in liquor held not void.-People ex rel. Glick v. Russell, 168 N. Y. S. 472.

462 (N.Y.Sup.) Under Laws 1917, c. 623, amending Liquor Tax Law, § 8, written statement signed by two of three commissioners, in absence of the third who had notice of meeting, describing place where liquor might be trafficked in, held sufficient.-People ex rel. Nally v. Sisson, 168 N. Y. S. 476.

462 (N.Y.Sup.) Under Liquor Tax Law, as amended by Laws 1917, c. 623, that commissioners appointed by town board allotted to village within town 10 certificated places, where traffic in liquor might be conducted, instead of 9, as would result from mathematical computation provided by statute, held not to make determination void.-In re Gaignat, 168 N. Y. S. 479; In re Boles, Id. 482; In re Murphy, Id. 482; People ex rel. Merritt v. Tuthill, Id. 483. JAILS. JITNEYS.

See Banks and Banking, 132; Damages, See Prisons. 67; Usury.



19(2) (N.Y.) Contractor to construct foundations of bridge will not be allowed interest on

See Carriers, 18.


amount found to be value of extra work from See Courts, 189.

date of presentation of claim to comptroller, 1 (N.Y.Sup.) Where underwriting agreewhere evidence does not show work had estab- ment was signed by only one person, held, that

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

he did not become a member of the syndicate, and the managing committee could not use his money for any purpose.-In re Marvin, 168 N. Y. S. 555.


(A) Requisites and Validity. 123(1) (N.Y.Sup.) Action to foreclose mortgage, wherein defendant pleaded usury as counterclaim, not being one wherein the clerk can enter judgment by default, application must be made to the court, under Code Civ. Proc. § 1214, stating the procedure in such cases.— Charlton v. Ward, 168 N. Y. S. 876.

4(1) (N.Y.Sup.) Widow and administratrix of dramatist held entitled to accounting as against defendant, who engaged in joint adventure with deceased to write play, and who, on co-author's death, appropriated it, and, with co-operation of producer, produced it, in disregard of widow's rights.-Ongley v. Marcin, 126(1) (N.Y.Sup.) Provision of Code Civ.

168 N. Y. S. 30.

4(3) (N.Y.Sup.) Where attorney for committee of promoters was a participant in the joint enterprise held that he must stand his proportionate share of value of his services. -In re Marvin, 168 N. Y. S. 555.

4 (4) (N.Y.Sup.) Where attorney for committee of promoters was a participant in the joint enterprise, held, that he must stand his proportionate share of expenses and cost of settlement of claim against syndicate.-In re Marvin, 168 N. Y. S. 555.

7 (N.Y.Sup.) Theatrical producer held liable to account for royalties to administratrix of dramatist, who originated play and died when it was about half written, for having produced it under new arrangement with an assistant of deceased engaged in the joint adventure.-Ongley v. Marcin, 168 N. Y. S. 30.

Where dramatist engaged to write play originated by him for producer, and later took in an assistant, after which he died, the assistant completing the play and producer producing it, the widow, as administratrix of deceased, was entitled to have husband's name advertised as co-author, or to have further production enjoined.-Id.


See Courts, 42; Justices of the Peace.

8 (N.Y.Sup.) Under Laws 1908, c. 452, art. 2, §§ 1, 4, article 13, §§ 1, 2, 13, 15, and Second Class Cities Law, art. 3, §§ 10, 14, 15, held, that city judge of Yonkers was an officer of the city, and that in case of vacancy, an appointment might be made by the mayor.-People ex rel. Garrity v. Walsh, 168 N. Y. S. 440.


Proc. § 1215, that the court may take proof of a fact necessary to enter default judgment, means only that such proof shall be taken when the complaint is not sufficiently definite, or where it is necessary to show the damages sustained; the question of damages not being issuable, and hence not being admitted by a default.-Charlton v. Ward, 168 N. Y. S. 876.

It is not necessary for a party to prove his cause of action when applying for default judgment, under Code Civ. Proc. §§ 1214, 1215, where summons was personally served on defendant and he has made default in some manner, but is necessary only when applying for judgment under section 1216, where service is by publication.—Id.

(B) Opening or Setting Aside Default. ~143(1) (N.Y.Sup.) Where plaintiff had secured several adjournments, and defendant was ready for trial and opposed the last adjournment, and defendant's attorney on the day before the trial became severely ill, the default entered on the day of trial should have been set aside.-Lookstein v. Rosenblum, 168 N. Y. S. 615.

162(4) (N.Y.Sup.) On defendant's motion to vacate default judgment, evidence held insufficient to show service of summons and complaint on defendant.-Ware v. Tyler, 168 N. Y. S. 612.

169 (N.Y.Sup.) Default judgment, in case in which defendant claimed a meritorious defense and which was apparently entered without his fault, should be opened on his payment of plaintiff's costs of action and costs of motion.Mitchell v. Schroeder, 168 N. Y. S. 49.

VI. ON TRIAL OF ISSUES. (C) Conformity to Process, Pleadings, Proofs, and Verdict or Findings.

249 (N.Y.) Where an attorney sues another claiming a partnership in the trial of a case and asks for an accounting, a judgment for plaintiff on the ground that defendant hired plaintiff under an implied promise to pay cannot be allowed to stand, as equity pleading cannot be basis of recovery at law. Jackson v. Strong, 118 N. E. 512, 222 N. Y. 149.

33 (N.Y.Sup.) Under Laws 1908, c. 452, art. 13, § 2, conferring on the "city judge elected" power to appoint attendants, etc., of the court, the city judge though appointed by the mayor to fill a vacancy, could exercise such power. People ex rel. Garrity v. Walsh, 168 250 (N.Y.Sup.) In summary proceeding for N. Y. S. 440.


See Execution; Pleading, 346, 350.

leased premises, on ground that tenant was holding over after expiration of his term, or der awarding possession because tenant had not paid his rent was not in accordance with allegations of petition.-Strack v. Fradus, 168 N. Y. S. 530.

For judgments in particular actions or proceed-252(1) (N.Y.Sup.) Where there was no ings, see also the various specific topics. prayer for personal judgment, although enFor review of judgments, see Appeal. forcement of lien was sought, personal judgment

cannot be upheld.-Conway v. Bluff Point Stone in former case, or what was decided.-Logan Co., 168 N. Y. S. 170. v. Fidelity-Phenix Fire Ins. Co. of New York, 168 N. Y. S. 883.



396 (N.Y.Sup.) Where a legal excuse was
shown for the adjournment of the trial, impo-
sition of costs as condition for vacating judg- See Evidence, 11.
ment for alleged failure to prosecute was un-
justified.-Lagomarsino Wine Co. v. Sackman.
168 N. Y. S. 595.

(B) Causes of Action and Defenses Merg-
ed, Barred, or Concluded.

585(4) (N.Y.Sup.) A party may reserve his own claims for cross-action, the conduct of which he can control, and cannot be required to set up his claim as a counterclaim in an action brought by his adversary.--Rosenberg v. Slotchin, 168 N. Y. S. 101.

601 (N.Y.Sup.) After judgment fixing a school-teacher's salary, she cannot relitigate her rights for period covered by such judgment. Sullivan v. Board of Education of City of New York, 168 N. Y. S. 849.



(A) Judgments Conclusive in General.

654 (N.Y.Sup.) A judgment dismissing plaintiff's complaint upon the ground that he could not have equitable relief was binding upon the parties until reversed.-In re Marvin, 168 N. Y. S. 555.

654 (N.Y.Sup.) Though bound by litigation instituted by her assignor on the cause of action, plaintiff, as well as her assignor, is free of adjudication on merits in prior action, where court dismissed complaint for lack of jurisdiction.-Cahill v. Wissner, 168 N. Y. S.


(B) Persons Concluded.

704 (N.Y.Sup.) Except in actions in equity, where all rights are finally determined, and cases where questions must have been litigated in prior action, judgment is not conclusive as between parties who were not adverse parties. -Post v. Thomas, 168 N. Y. S. 226.

XVII. FOREIGN JUDGMENTS. 831 (N.Y.Sup.) In action on English judgment against acceptor of bill of exchange payable in England, where process in English action was effected on defendant personally in New York, and he did not appear or defend or consent to process, plaintiff could not recover.-Kerr v. Tagliavia, 168 N. Y. S. 697. XXII. PLEADING AND EVIDENCE OF JUDGMENT AS ESTOPPEL OR DEFENSE.

948 (2) (N.Y.Sup.) That in prior action between same parties a contract was held invalid for lack of authority cannot be raised by demurrer to a complaint, alleging facts which, when controverted, show authority; there being no allegation showing what pleadings were


See Courts; Criminal Law,
ecutors and Administrators,


87-101; Ex513.

See Criminal Law, 742; New Trial, ~52;
Trial, 139–176.


14 (9) (N.Y.Sup.) Under Code Civ. Proc. § 1642, where answer in action to determine claim to realty set up defendant's ownership. held, that trial should be had before court and the Deaf and Dumb v. City of New York, 168 jury. New York Institution for Instruction of

N. Y. S. 755.

[blocks in formation]


See Courts, 190; Evidence, 66; Specific
Performance, 28, 62.


(A) Requisites and Validity.
33 (N.Y.Sup.) Agreement between landlord
and tenant that, in consideration of tenant's
employment of landlord as architect of tenant's
garage, tenant might remain on leased prem-
ises after expiration of term at same rental
until the garage was ready for occupancy, if
established, was based upon a sufficient consid-
eration.-Strack v. Fradus, 168 N. Y. S. 530.


(B) Estoppel of Tenant. 66(1) (N.Y.Sup.) A tenant cannot hold adversely to, or prescribe against, his landlord.Olin v. Kingsbury, 168 N. Y. S. 766.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

« ПретходнаНастави »