and 120 New York State Reporter
to quit before the end of the monthly period,
under Laws 1882, p. 369, c. 303, or a three
days' notice for nonpayment of rent, under
Code Civ. Proc. § 2231, subd. 2, a judgment in
summary proceedings in favor of the landlord
was unsustainable.-Miller v. Lowe (Sup.) 16.
Where, in dispossess proceedings, the petition
is based on a monthly hiring, and the proof
shows a tenancy from month to month, the
fact that a 30-day notice to quit was served
held to avail plaintiff nothing.-Bent v. Ren-
ken (Sup.) 110.
literary topics, is not libelous per se.-Triggs v.
Sun Printing & Publishing Co. (Sup.) 486.
Charging plaintiff with keeping house of pros-
titution held slanderous per se.-Wilkens v.
Hammann (Sup.) 744.
In an action for libel, an order striking out so
much of a subsequent paragraph of the answer
as merely reiterated the contents of a general
denial pleaded in a previous paragraph held
proper.-Dinkelspiel v. New York Evening Jour-
Variance between petition and proof in dis-nal Pub. Co. (Sup.) 375.
possess proceedings held fatal.-Bent v. Ren-
ken (Sup.) 110.
In summary proceedings by a landlord, held
that, under Code Civ. Proc. § 2254, the tenant
may be relieved on payment of rent and costs
into court, without a formal order of removal
first issuing.-Flewellen v. Lent (Sup.) 919.
§ 1. Offenses and responsibility there-
for.
It is not necessary that a trespass should
have been committed to establish the crime of
larceny.-People v. Mills (Sup.) 529.
Under Pen. Code, § 531, subd. 3, one who
secured indictments by bribing district attor-
ney's office held guilty of grand larceny in sec-
ond degree.-People v. Mills (Sup.) 529.
LAW OF THE CASE.
Decision on appeal, see "Appeal and Error,"
§ 5.
Judicial notice of, see "Evidence," § 1.
See "Landlord and Tenant."
In an action for libel, a paragraph of the an-
swer alleging a specific act of impropriety by
plaintiff, which was connected with the sub-
ject of the libel, held not irrelevant.-Dinkel-
spiel v. New York Evening Journal Pub. Co.
(Sup.) 375.
In an action for libel, a paragraph of the an-
swer denying express malice held not irrelevant.
-Dinkelspiel v. New York Evening Journal
Pub. Co. (Sup.) 375.
Allegations of answer in justification of libel
held relevant.-Westervelt v. New York Times
Co. (Sup.) 454.
For sale of intoxicating liquors, see "Intoxi-
cating Liquors," § 1.
Of foreign corporations, to do business, see “Cor-
porations," § 6.
§ 1. For occupations and privileges.
Under Laws 1902, c. 506, § 9, subd. 23, and
section 41, p. 1217, as amended by Laws 1903.
p. 465, c. 192, street commission of Saratoga
Springs held authorized to revoke a hackman's
license for his failure to comply with a regula-
tion governing his business.-People v. Sewer.
Water & Street Commission of Village of Sara-
toga Springs (Sup.) 445.
Acts of a hackman held to constitute a viola-
tion of Laws 1902, p. 1216, c. 506, § 40, pro-
Effect of discharge of tenant in bankruptcy, see hibiting him from driving through the streets
"Bankruptcy," § 3.
Of attachment, see "Attachment," § 2.
LIBEL AND SLANDER.
Change of venue, see "Venue," § 2.
1. Words and acts actionable, and
liability therefor.
An article published of an instructor in a uni-
versity, ridiculing his opinions and criticisms on
soliciting patronage.-People v. Sewer, Water &
Street Commission of Village of Saratoga
Springs (Sup.) 445.
§ 2. In respect of real property.
Parol license from owners of land to lay
mains therein held revocable by subsequent
grantee. Jayne v. Cortland Waterworks Co.
(Sup.) 571.
Effect of proceedings in bankruptcy, see "Bank-
ruptcy," § 2.
Particular classes of liens.
See "Mechanics' Liens."
Attorney's lien, see "Attorney and Client," § 3.
Charge on legacy, see "Wills," § 5.
For work and materials furnished to municipal
corporation, see "Municipal Corporations,"
§ 3.
§ 1. Subjects and purposes of relief.
Attorney General's approval of receiver's con-
tract for employment of attorney, required by
Laws 1902, p. 114, c. 60, § 4, held, on facts,
not subject to control by mandamus.-Candee
v. Cunneen (Sup.) 723.
Where canvass of vote was not as prescrib-
ed by election law (Laws 1896, pp. 940, 953, c.
909, §§ 84, 103, and Laws 1896, p. 961, c. 909,
§ 110, subd. 3, as amended by Laws 1898, p.
972, c. 335), issuance of writ of mandamus re-
quiring a recanvass held within discretion of
court.-People v. Way (Sup.) 892.
Statutory provisions authorizing mandamus
proceedings in election cases held not to devest
court of jurisdiction to issue writ commanding
inspectors to convene and perform their du-
ties as prescribed by statute.-People v. Way
(Sup.) 892.
MASTER AND SERVANT.
See "Apprentices"; "Work and Labor."
Admissions by employés, see "Evidence," § 5.
Bill of particulars in action for breach of con-
tract of employment, see "Pleading," § 6.
Production and use of electricity, see "Elec- Construction of employers' liability act, see
tricity."
See "Physicians and Surgeons."
Contracts of employment by corporations, see
"Corporations," § 3.
Employers' liability law as denying due protec-
tion of law, see "Constitutional Law," § 6.
Separate statement of causes of action, see Employers' liability law as denying equal pro-
"Pleading," § 2.
tection of law, see "Constitutional Law," § 5.
and 120 New York State Reporter
Employés of municipal corporations, see "Mu-
nicipal Corporations," § 1.
Excessive damages for personal injuries, see
"Damages," § 3.
Expert testimony, see "Evidence," § 8.
Fidelity insurance, see "Insurance," §§ 4. 10.
Opinion evidence in action for personal injuries,
see "Evidence," § 8.
Relevancy of evidence in action for personal in-
juries, see "Evidence," § 3.
Secondary evidence as to rules of employer, see
"Evidence," § 4.
§ 1. Services and compensation.
Evidence in servant's action for wages held
to sustain finding of employment.-Daly v.
Minke (Sup.) 92.
2. Master's liability for injuries to
A servant having voluntarily consented to
work in a dangerous position, with knowledge
of the surrounding circumstances and with the
precautions afforded him, held to have assumed
the risk of injury, notwithstanding such precau
tions.-Ryan v. Third Ave. R. Co. (Sup.) 1070.
Plaintiff's foreman, while watching to warn
plaintiff of the approach of danger, he'd plain-
tiff's fellow servant, so as to relieve defendant
from liability for injuries caused by the fore-
man's negligence in performing such duty.—
Ryan v. Third Ave. R. Co. (Sup.) 1070.
Where a street railway company furnished a
cable oiler with another servant to keep watch
for approaching cars, while the oiler was in
dangerous position in a wheel pit, the company
ing to provide a reasonably safe place for him
was not liable for injuries to the oiler, for fail-
to work.-Ryan v. Third Ave. R. Co. (Sup.)
1070.
Under Laws 1902, p. 1749, c. 600, § 1, subd.
2, the employers' liability act, negligence of:
superintendent, resulting in injury to employé, The negligence of employés in failing to con-
held to entitle employé to recover in action struct a scaffolding in the manner prescribed
against employer therefor.-Bellegarde v. Union, by Laws 1897, p. 467, c. 415, § 18. held not im-
Bag & Paper Co. (Sup.) 72.
puted to the employer. - Rotondo v. Smyth
(Sup.) 1103.
One who attends machine for conveying arti-
cles from one floor to another held to assist in
operating it, within Laws 1897, p. 480, c. 415,
881.-Gallenkamp v. Garvin Mach. Co. (Sup.)
Machine for conveying articles from one floor
to another of a factory held a dangerous ma-
chine, within Laws 1897, p. 480, c. 415, § 81,
prohibiting its operation by children under 16.
-Gallenkamp v. Garvin Mach. Co. (Sup.) 378.
It is not a defense, to a station agent's ac-
tion for injuries from an open trench dug by
the company on his premises, that, had the
trench been upou the company's premises, he
still would have fallen into it.-Wood v. New
York Cent. & H. R. R. Co. (Sup.) 817.
A car repairer held not guilty of contributory
negligence as a matter of law in failing to look
a third time to see that the trolley pole was
off the wire before going under the car, after
he had left it to go a short distance for a
piece of material to use in the work.-Quinn v.
Brooklyn Heights R. Co. (Sup.) 883.
The negligence of a car starter in directing
the movement of a defective car, which plaintiff
was engaged in repairing, without notice to
plaintiff, held the negligence of a vice principal,
for which defendant was liable.-Quinn v.
Brooklyn Heights R. Co. (Sup.) 883.
Employé, as cranesman on derrick car, held
to have assumed risk of injury resulting from
his failure to anchor the car.-Wagner v. New
York, C. & St. L. R. Co. (Sup.) 921.
One employed on a derrick car held guilty of
contributory negligence in having failed to an-
chor the car.-Wagner v. New York, C. & St. L.
R. Co. (Sup.) 921.
A railroad company held, as matter of law,
not required to prescribe and observe both of
two rules to prevent injury to one cleaning out
the ashpan of a locomotive by its being started
up while he is under it.--Lane v. New York
Cent. & H. R. R. Co. (Sup.) 947.
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Laws 1902, p. 1749, c. 600, § 2, condition-
ing recovery for servants' injuries under the
act on the giving of 120 days' notice, does not
apply to an action by the servant against the
master for breach of a common-law duty.-
Rosin v. Lidgerwood Mfg. Co. (Sup.) 49.
Contributory negligence of boy 15 years old,
attending machine for conveying tools from one
floor to another of a factory, held for the jury.
-Gallenkamp v. Garvin Mach. Co. (Sup.) 378.
Whether a trench, crossed by braces to hold
the surface earth, was a safe place to work,
held a question for jury.-Winters v. Naughton
(Sup.) 439.
Evidence of discharge of co-servant, alleged
to have been incompetent, the day after injury,
held inadmissible.-Winters v. Naughton (Sup))
439.
In action for injuries to employé, failure of
master to explain the cause of the fall of a
derrick held to demand verdict for plaintiff.-
Gorman v. Milliken (Sup.) 699.
Station agent, injured by falling into trench
dug by railroad company, held not chargeable as
a matter of law with notice thereof, so as to
render him guilty of contributory negligence.-
Wood v. New York Cent. & H. R. R. Co. (Sup.)
817.
Evidence, in an action for injuries to a quar-
ry employé, engaged in driving a carload of
stone, considered, and held to present a ques-
tion for the jury as to whether the accident
used for checking the car.-Allison v. Long
was caused by the insufficiency of the brake
Clove Trap Rock Co. (Sup.) 833.
A car repairer, injured in the process of his
work, held entitled to go to the jury on the
question of defendant having failed to furnish t
i safe place to work by failing to promulgate
rules, etc.-Quinn v. Brooklyn Heights R. Co. School district meetings, see "Schools and
(Sup.) 883.
School Districts," § 1.
In an action for injuries to a car repairer, a
verdict in favor of plaintiff on an issue as to
whether a rule for the protection of car re-
pairers had ever been brought to plaintiff's
knowledge held not contrary to the weight of
evidence. Quinn v. Brooklyn Heights R. Co.
(Sup.) 883.
In an action for injuries to a car repairer,
evidence that it was the custom in defendant's
shop for persons to sign rules promulgated from
time to time by the shop foreman held inad-
missible, on an issue as to whether the plain-
tiff signed or had knowledge of a particular
rule alleged to have been adopted.-Quinn v.
Brooklyn Heights R. Co. (Sup.) 883.
Of cause of action in judgment, see "Judg-
ment," § 4.
MINES AND MINERALS.
Fraud in sale of mining stock, see "Fraud,"
§ 1.
MINORS.
In an action for injuries to a car repairer,
refusal of the court to permit defendant, on See "Fraud."
cross-examination of the motorman, sworn as
plaintiff's witness, to prove that he put the
trolley pole on the wire and that the car was
lighted, etc.. held proper.-Quinn v. Brooklyn
Heights R. Co. (Sup.) 883.
In an action for negligent death, evidence
held insufficient to sustain finding that employer
did not furnish suitable appliances.-Wagner v.
New York, C. & St. L. R. Co. (Sup.) 921.
§ 4. Liabilities for injuries to third
persons.
Evidence held insufficient to establish employ-
ment by defendant and direction to work in a
plac which defendant was bound to make safe.
-Glaser v. Michelson (Sup.) 286.
A master held not liable to a third person for a
certain tort of his servant.-Kennedy v. White
(Sup.) 852.
Evidence in action for recovery of loan held
to present disputed question of fact, rendering
dismissal of complaint improper.-Boehringer
v. Hirsch (Sup.) 726.
MONEY RECEIVED.
Action to recover dividends of dissolved corpo-
ration, see "Corporations," § 5.
Grants of privileges or immunities, see "Con-
stitutional Law," § 4.
§ 1. Trusts and other combinations in
restraint of trade.
Temporary injunction granted, restraining de-
fendants from carrying out illegal combination,
preventing plaintiffs from purchasing books.-
Straus v. American Pub. Ass'n (Sup.) 1091.
and 120 New York State Reporter
mortgage's security.-E. H. Ogden Lumber Co.
v. Busse (Sup.) 1098.
In an action by a mortgagee against a third
person for waste, the insolvency of the mort-
gagor is immaterial.-E. H. Ogden Lumber Co.
v. Busse (Sup.) 1098.
Evidence that defendant had been served with
the summons and complaint in proceedings to
foreclose a mortgage before defendant commit-
ted waste on the premises held sufficient to show
his knowledge of the mortgage.-E. H. Ogden
Lumber Co. v. Busse (Sup.) 1098.
In an action by a mortgagee for waste, the
measure of damages is the difference in value
of the property, unless such difference exceeds
the cost of repairing the injury. E. H. Ogden
Lumber Co. v. Busse (Sup.) 1098.
2. Foreclosure by action.
Laws relating to registration and tagging of me-
tor vehicles as class legislation, see "Consti-
tutional Law," § 4.
MUNICIPAL CORPORATIONS.
See "Schools and School Districts," § 1:
"Towns."
Judicial notice of ordinances, see "Evidence."
§ 1.
Ordinances relating to intoxicating liquors, sce
"Intoxicating Liquors."
Ordinances relating to street railroads, see
Rights of railroads in streets, see "Railroads,"
"Street Railroads," § 1.
Street railroads, see "Street Railroads."
A purchaser of real estate at a foreclosure
sale is entitled to a good merchantable title. § 1. Officers, agents, and employés.
Dana v. Jones (Sup.) 1000.
Burden of proof to show defect in title of
fered held to be on applicant to be relieved from
purchase of real estate at sale on foreclosure
of mortgage.-Dana v. Jones (Sup.) 1000.
Creditor of defendant in possession held not
entitled to intervene in foreclosure action.-
Bouden v. Long Acre Square Bldg. Co. (Sup.)
1080.
Change of venue in civil actions, see "Venue,"
§ 2.
Continuance in civil actions, see "Continuance."
Direction of verdict in civil actions, see "Tri-
al." § 3.
Dismissal or nonsuit on trial, see "Trial," § 3.
Necessity of motion for new trial for purpose
of review, see "Appeal," § 3.
New trial in civil actions, see "New Trial,"
§ 2.
Opening or setting aside default judgment, see
"Judgment," § 1.
Presentation of objections for review, see "Ap-
peal," § 3.
Quashing indictment or information, see "In-
dictment and Information," § 2.
Relating to pleadings, see "Pleading," § 7.
Striking out evidence, see "Trial," § 2.
An order brought up for review held to be
an order of the county court, required by Code
Civ. Proc. $ 3265, and not a judge's order.-
Lawson v. Speer (Sup.) 915.
Leave to make motion for appointment of a
referee to take a deposition, under Code Civ.
Proc. § 885, and to make a motion to the same
effect in a separate proceeding, held unneces-
sary. People v. Paine (Sup.) 1109; In re Tuell,
Id.
Detective sergeant, assigned to and accepting
duties of police sergeant, must comply with de
partment rules, even though assignment is ir-
regular.-People v. Greene (Sup.) 322.
Ignorance of rules by police sergeant is an ex-
cuse for their violation, the sufficiency of which
is to be determined by commissioner.-People
v. Greene (Sup.) 322.
Under New York City Charter, p. 124. § 292,
police commissioners may assign detective ser-
geant to duties of police sergeant.-People v.
Greene (Sup.) 322.
Under New York City Charter, Laws 1901, c.
466, p. 122, §§ 288, 290, detective sergeant may
be reduced in rank after trial on charges.-Peo-
ple v. Greene (Sup.) 322.
Evidence held insufficient to support charge
patrolman from police force.-In re Koch (Sup))
of neglect of duty, warranting dismissal of
Salaried city employé of the commissioner
of public charities held not entitled to recover
notarial fees for which no direct appropriation
by the city had been made.-Spencer v. City
of New York (Sup.) 573.
It was improper for the fire commissioner,
after hearing charges against a subordinate, to
take up the record in consultation with the cor-
poration counsel and his attorneys, who had
conducted the prosecution.-People v. Sturgis
(Sup.) 687.
That the fire commissioner, on hearing char-
ges against a subordinate, did not consider in-
competent evidence admitted held not to render
the errors immaterial.-People v. Sturgis (Sup.)
687.
The fire commissioner, on hearing charges
against a subordinate, cannot admit everything
offered to sustain the charges, and exclude evi-
dence of as high character offered in rebuttal.
Orders of the court should be styled "orders of
the court," and not orders of the justice di--People v. Sturgis (Sup.) 687.
recting their entry.-Roncoroni v. Gross (Sup.)
1113.
Evidence examined, and held to show that
the fire commissioner's judgment was affected
by bias and prejudice, so that he did not accord
a fair and impartial trial to the chief of fire
department on charges against him.-People v.
For homicide, instructions, see "Homicide," § 4. Sturgis (Sup.) 687.
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