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JUDICIAL SALE - Continued.

thereon. During the time of these conveyances Thatford made conveyances
of several other lots, the descriptions in which referred to the first map.

In an action to foreclose the mortgage executed by Fanny Morris, it was
Held, that a purchaser at a sale had under a judgment therein should
not be compelled to take title, as it appeared that various grantees had or
might claim the easement or right of way over the ten-foot strip of the
former highway, which was added to the front of the premises as it was
delineated upon the original map. SCRIPTURE v. MORRIS.
... 377

2.

Marketable title- -that a will was erroneously construed in an action
to which all persons interested were parties, is not a ground of objection to the
title.] A purchaser at a sale in partition will not be relieved from complet-
ing his purchase upon the ground that the will of a decedent, through whom
all the parties claimed title, was erroneously construed, where it appears that
the question was fairly presented for litigation and that there was no person
having any possible interest in the title who was not made a party to the
action. In such a case the purchaser is protected by the judgment rendered
in the action, which is conclusive upon all the parties. BROWN . MOUNT... 440

ment

Written contract to convey property which may be bought in at a fore-
closure sale-construction thereof in disregard of the exact terms of the agree-
when equity will not specifically enforce it.
See FINKEL v. KOHN.
JURISDICTION Surrogate
payment thereunder to be erroneous.
See SURROGATE.

power of, to decree a previous order and a

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JURY
Verdict of
not proven," corrected by the court and entered “no”-
affidavits of jurors as to their intent.

See CRUIKSILANK . CRUIKSHANK.......

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Impanelling of, trial by, and submission of a cause to a jury.

See TRIAL.

JUSTICE'S COURT:

PAGE.

JUSTICE OF THE PEACE - The offices of justice of the peace and town clerk
cannot be held by the same person.] The offices of justice of the peace of a
town and of town clerk are incompatible, and the acceptance of the office of
town clerk by a justice of the peace will render the office of the latter vacant.
PEOPLE EX REL, EARWICKER 9. DILLON.

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City of Yonkers removal of an action from a Justice's Court to a City
Court-it is a change of forum, not of venue, and is not prohibited by section
18 of article 3 of the Constitution.

See DORAN . BUSSARD.

See JUSTICE OF THE PEACE.

LACHES Action by one of several heirs at law of deceased grantors to set aside
a deed executed by them to their father during minority-
-a delay to disaffirm for
fourteen months, and until death, is not a ratification of the deed.

See O'ROURKE . HALL.

Amended complaint when a defendant will be required to retain it and
to move to strike out such portions thereof as do not conform to the order author-
izing its service.

See LANGE . HIRSCH.

Renunciation by executors of a specific compensation under section 2730
of the Code of Civil Procedure—aches in filing the renunciation.

See MATTER OF ARKENBURGH..

Contract to accept a draft of a third person drawn against merchan-
dise sold — laches of the acceptors in the sale of the merchandise.

See BENECKE v. HAEBLER..

Amended complaint — when not stricken out as being served for delay
only-effect of a delay in answering.

See PRITCHARD 7. NEDERLAND LIFE INS. Co. (No. 2)....
Plea of laches by dishonest trustees.
See JENKINS . HAMMERSCHLAG

199

580

539

30

534

176

473

344

111

209

LAND:

See REAL PROPERTY.

2.

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LANDLORD AND TENANT- When the tenant may be presumed to hold
over after the expiration of his term and is entitled to the excess of rent paid by
his sub-lessee, continuing in occupation of the premises, to the principal land-
lord.] 1. Where a lessee in possession of premises, the buildings on which
belong to him, subject to a ground rent, under a lease which expires April 30,
1892, prior to the expiration of his term sub-lets the premises, reserving no
right of re-entry, at an increased rent, which rent is subsequently collected
from the sub-tenant by the principal lessor, who pays over to the principal
lessee, from time to time, the difference between the sum so collected and the
ground rent reserved in the original lease and continues to do so after the
expiration of the term of the original lease and until January, 1894- no notice
of the termination of the original lease having been given to the principal lessee

the jury is authorized, in an action brought by the principal lessee against
his lessor to recover the difference between the ground rent and the amount
collected by such lessor from the sub-tenant for his occupation after January,
1894, to find that no change took place in the relation of the parties to the
original lease, but that the lessee named therein held over, and that the les-
sor was accountable to him for the rent collected from the sub-tenant in excess
of the ground rent. SCHWARZLER v. MCCLENAHAN .

-Evidence competent under a general denial.] In such action the
defendant, under a general denial, has the right to show any facts tending
to defeat the plaintiff's recovery, either in whole or in part, including testi-
mony establishing the payment of two items by checks, which was drawn
out upon cross-examination, the receipt of the checks being admitted by
the lessee. Id.

3.

66

Provision for re-entry should the premises become vacant — the removal
by the lessee leaving sub-tenants in possession is not covered by such a provision.]
Where the parties to a lease contemplate that the tenant shall let furnished
rooms in the demised premises, the fact that the tenant, intending, as she
explains, to use the demised premises for roomers only, personally
removes therefrom, leaving her sub tenants in possession, does not amount
to a racating of the premises within the meaning of a provision of the lease
authorizing the landlord, in case the demised premises, or any part thereof,
should become racant during the term, to re-enter and relet the premises for
the tenant's account and hold the latter liable for any deficiency.

BURHANS 2. MONIER.....

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4. What action on the part of the landlord entitles the tenant to termi-
nate the lease.] The wrongful refusal of the landlord to allow the tenant,
under such circumstances, to collect rent from her sub-tenants, entitles the
tenant to surrender possession and to terminate her liability under the lease;
and the fact that after such wrongful refusal on the part of the landlord,
the tenant returns, to one of the sub-tenants, rent received from him, in
order that such sub-tenant may pay it to the landlord, is evidence of an
abandonment of the premises compelled by the landlord's act, and not a
recognition of the landlord's right to resume possession and still hold the
tenant liable for a deficiency in the rent.

Id.

PAGE.

5.

Breach of a landlord's covenant to keep the roof in repair— rental
damages, not damages to goods, are recoverable] A tenant's measure of dam-
ages for a breach by his landlord of a covenant contained in the lease, to
keep the roof of the demised premises in repair, is the difference between
the rental value of the premises as they were and the rental value thereof as
they would have been if the landlord had performed his covenant, or, if the
tenant actually makes the stipulated repairs himself, the necessary expendi-
ture made by him.

Such damages may be recovered by the tenant in an action against the land-
lord, or may be counterclaimed in an action brought by the landlord to recover
the rent, but are not, it seems, recoverable under a counterclaim based solely
upon injury to the tenant's goods.

APP. DIV.-VOL. XXXVIII.

86

525

466

LANDLORD AND TENANT- Continued.

Damages resulting to the tenant's goods in consequence of the leaky condi-
tion of the roof, which the landlord covenanted to repair, are not a proper
subject of counterclaim in an action by the landlord to recover the rent,
especially when it appears that the tenant continued to leave his goods exposed
to possible injury from leakage after he became aware that such danger
existed. REINER . JONES..

6. Amendment of an answer, setting up injury to goods, to one making
a claim for loss of rental value.] The exercise by the court of its discretion
in refusing to allow the tenant, at the end of the trial, to amend his answer,
in which the counterclaim is based solely upon injury to the tenant's goods,
by setting up damage to the rental value of the premises, will not be dis-
turbed upon appeal. Id.

7. Piling sand against a brick wall on an adjoining lot — liability for
breaking down the wall.] A sub-lessee of a vacant lot, who piles sand to a
height of eighteen or twenty feet along a wall standing wholly upon adjoin-
ing land, with the result that the wall breaks down, is liable to the owner
of the wall for the damages thus sustained. BARNES . MASTERSON....... 612

8.

One who piles part only of the sand is liable.] Semble, that the fact
that the sub lessee only piled the sand against the wall to the height of
three feet, and then sold it, giving the vendee permission to use the lot for
the storage of sand, and that the subsequent piling of the sand was done
by the vendee, did not relieve the sub-lessee from liability, as it was the
whole pile of sand which destroyed the wall, to which the sub-lessee's act
was a contributing cause, which rendered him liable for the whole damage.
Id.

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Negligence-tenant of an apartment house injured by falling through a
flooring of slats on a roof while hanging out clothes to dry-when contributory
negligence is not established.

See KARLSON . HEALY

LEASE:

See LANDLORD AND TENANT.

LEGISLATURE - Powers of.

See CONSTITUTIONAL LAW.

LEX LOCI :

See CONFLICT OF LAWS.

PAGE.

LIBEL-A reference by counsel, in summing up, to a verdict rendered in
another case, held to require a reversal.

See BAGULLY. MORNING JOURNAL Assn..

LIEN

·Action to foreclose a mechanic's lien and to set aside as fraudulent a
conveyance of the premises · -an intermediate grantee is not a necessary party.
See BIERSCHENK . KING...

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LIFE INSURANCE:

See INSURANCE.

LIFE TENANT — Mortgages given by a life tenant and by remaindermen —
surplus moneys, arising on a foreclosure thereof the mortgagors' relative inter-
ests therein.

See MORTGAGE.

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LIGHTING - Of a town-petition for the lighting of a district outside the
limits of an incorporated village — names may be withdrawn before a contract is
awarded-if reduced to less than twenty-fice the contract is void—an assign-
ment of such contract without consent avoids it the inclusion in such lighting
district of a part of an incorporated village aroids it.

See TOWN.

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441

486

522

360

LIMITATION OF ACTION Compulsory accounting by an administrator
-barred by the ten-year Statute of Limitations.] A proceeding to compel
an administrator to account is controlled by the ten-year Statute of Limita-
tions applicable to suits in equity. MATTER OF LONGBOTHAM.

... 607

PAGE.

MALICIOUS PROSECUTION - Probable cause, a question for the jury.]
1. In determining, in an action for malicious prosecution, whether there is
probable cause the inquiry is not limited to facts within the prosecutor's
knowledge, but the information given to the prosecutor by others may be
shown. The question of how far information received from another is a
justification for the act of the defendant, in causing the arrest of the plain-
tiff, is not one of law for the court, but one of fact for the jury.

In such an action, brought by a contractor who had been arrested on
a charge of petit larceny preferred by the defendant and subsequently
acquitted, it appeared that the plaintiff, who was grading a plot of land
belonging to one Mapes, ordered of the defendant stone for use thereon to be
charged to Mapes' account, which stone was delivered at the premises of
Mapes and receipted for by Mrs. Mapes; that subsequently Mapes repudi-
ated the authority of the plaintiff to order the stone on his account, where-
upon the defendant presented the bill to the plaintiff, and, according to the
plaintiff's testimony, threatened on one occasion to lock him up, and on
another occasion wrote, saying "unless you pay the bill by Friday at 3 P. M.,
we will take measures to make you do so," and upon his refusal to pay,
procured his arrest. It also appeared that the defendant, to whom Mapes
had refused to give an affidavit that he had not authorized the plaintiff to
order the stone, instead of procuring the attendance of Mapes before the
magistrate when it applied for the warrant, had one of its officers make an
affidavit, of his own knowledge, of the falsity of the plaintiff's representa-
tion when he ordered the stone, although the information of the affiant on
that subject rested solely upon the information received by him from
Mapes.

Held, that the delivery and use of the stone upon Mapes' premises and
the receipt given by his wife, while not conclusively showing the absence of
intent on the part of the plaintiff to defraud the defendant, bore strongly
on that question, while from the letter the defendant to the plaintiff and
the threat to lock him up, if the bill was not paid, it might be inferred that
the prosecution was instituted simply to enforce payment of the debt:
and that under these circumstances the good faith of the defendant, its belief
in the guilt of the plaintiff and the existence of probable cause for such
belief, were questions for the jury to determine.

OWENS . NEW ROCHELLE COAL & LUMBER CO.......

2. Liability of the instigator, although he does not make the complaint.]
The instigator of a malicious prosecution is liable to the person prosecuted,
although the formal complaint upon which the latter was arrested was made
by some one else.

What evidence, given in an action for malicious prosecution brought by a
domestic servant, who was arrested upon the charge of stealing her master's
silverware on a formal complaint made by a police officer, is sufficient to raise
a question for the determination of the jury as to whether the prosecution of
the plaintiff was instigated by the master, considered. DANN v. WORMSER. 460

3. Statement of the complainant that the complaint was true.] The
master is not relieved from liability upon the ground that the statements
-contained in the complaint of the police officer were true, where the police
officer swears: 66
The complaint I swore to was a truthful statement of all the
facts mentioned, as far as my conscience would let me state. My complaint
contained nothing but the truth". the intimation from such testimony being
that the conscience of the police officer would not allow him to state all the
facts. Id.

4. Excessive extra allowance.] An extra allowance of $1,000, in such
an action, held to be excessive. Id.

53

MANDAMUS- To compel a water company to furnish a citizen with pure
water at reasonable rates.] 1. A writ of mandamus will issue, on the relation
of an inhabitant of a city, to compel a water company, having a contract with
the city to supply the inhabitants thereof with pure water, to furnish the
same at reasonable rates, and he is not obliged to first pay the charges of the
water company and then seek redress for his grievances in an action at law.
PEOPLE EX REL. BRUSH . N. Y. SUB. WATER CO..

413

MANDAMUS- Continued.

2.

What allegations are sufficient to authorize the issue of an alternative
writ of mandamus.] To entitle the relator to an alternative writ it is suffi
cient that his petition allege that the water company failed to furnish the
relator and other inhabitants of the city with pure water; that it charged
exorbitant prices for the water furnished; that instead of charging for the
water according to the quantity consumed, it fixed its charges according to
the number of taps, faucets or openings in the different buildings, and that
it required payment of its water charges in advance.

The manner in which the charge is computed by taps, faucets or open-
ings and the requirement of payment in advance are but details of the
charge that the water company refuses to furnish water on reasonable terms.
Id.

MARKETABLE TITLE - That a will was erroneously construed in an
action to which all persons interested were parties, is not a ground of objection to
the title.

See BROWN v. MOUNT

MARSHALING- Of assets.

MARRIAGE SETTLEMENT:
See HUSBAND AND WIFE.
MARSHAL-City marshals in New York city-their fees on collecting a
personal tax.

See MUNICIPAL CORPORATION.

See DEBTOR AND CREDITOR.

MASTER AND SERVANT— Contract that work done under a contract of
employment shall be artistically and financially satisfactory". the decision
must be made in good faith.

See SUMMERS 7. COLVER.

Contract of employment — when incompetency for one only of two posi-
tions to which the employee might be assigned does not justify his discharge.
See RUNYON . DOHERTY..

Use of a freight elevator by an employee.
See WHITE v. EIDLITZ

MEASURE OF DAMAGES:
See DAMAGES.

PAGE

Negligence — injury from flanges projecting from a tumbler in which cast-
ings are placed.

See CARLSON . MONITOR IRON WORKS.

MECHANIC'S LIEN:

See LIEN.

MINOR :

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See INFANT.

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MISJOINDER - Marriage fraudulently contrived to obtain the property of
an incompetent - — a complaint based on such fraud does not state more than one
cause of action because of the fact that three instruments are sought to be set
aside. A complaint alleged the marriage of one Anne Maria Hunt to the
defendant, and that shortly thereafter she made her will, giving the bulk of
her property to him, and by a deed conveyed to him all her real estate, and
by a bill of sale the chief part of her personal property; that she was an
aged woman of about seventy years, in poor health and of unsound mind,
and was very rich, and that the defendant, a lawyer of about thirty five
years of age, both before the marriage and at the time of the execution
of the will and of the deed and of the bill of sale, knew of her enfeebled
physical and mental condition, and, contriving and intending to take advan
tage thereof and to get from her all her property, induced her to marry him
by fraud and undue influence; as relief, the plaintiff asked separately that
the will and the deed and the bill of sale, obtained at different times, be set
aside and held to be void.

440

553

40

33

149

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