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object and purpose of the instrument, in this case its operation must be
confined to T., and it in no way tended to release or discharge H. Id. 10. The report of the referee in this case contained findings of fact which
established defendant's liability as executrix, and a conclusion of law that plaintiffs were entitled to judgment against her, omitting her designation as executrix, but contained no direction as to the judgment to be entered. The judgment was entered against her in her representative character. Ield, that the findings of fact did not sustain the conclusion of law, but that as the report contained no direction as to the judgment to be entered, the judgment entered was wholly unauthorized and irregu
lar. Clason et al. v. Baldwin (Sup. Ct.), 982. 11. In an action tried before the court or a referee, the clerk has no judicial
functions and no power except to enter the judgment directed by the court or referee. The court or referee must settle the judgment and direct that judgment to be entered, and it is not for the clerk to determine whether any paper corresponds with the judgment directed to be entered. Paine v. Aidrich (Sup. Ct.), 999.
See APPEAL, 6; BANKRUPTCY; EXECUTION, 3; REFERENCE, 6.
JUDICIAL SALE. The purchaser of certain property at partition sale asked to be relieved from his contract on the ground that a son of the former owner had not been served. Said son was a confirmed drunkard with accompanying diseases and in March, 1874, having two violent hemorrhages of the stomach, the physician who attended him stated that he might die any moment, and that if he went upon another spree death would be inevitable, and under the most favorable circumstances he could not live a year. In Junc, 1874, he left the house while it was raining and was subjected to an exposure which the physician testified was l'able to produce his death in a very short time, and was never seen again though diligent inquiry was made. Held, that the liability of his being alive or having left a widow or heirs was such a remote and improbable contingency and was such a slender possibility only that it was a proper case for the court in the exercise of a sound discretion to compel the purchaser to complete his purchase. Cambrelung et al. v. Purton et al. (Ct. App.), 190.
JURY. An objection on the ground of irregularity in the drawing of a jury to be available must be made before the jury is drawn. The presumption is always in favor of its regularity. Goodman v. Goetz et al. (N. Y. C. P.), 731.
JUSTICE'S COURT. 1. A complaint in justice's court alleged that defendants are indebted to
plaintiff in a sum specified for a balance due to him for work and labor done for them at their request within six years last past, no part of which
had been paid. Held, sufficient. Griffin v. Jackson et al. (Sup. Ct.), 110. 2. Defendants having made default, plaintiff testified that he had a claim
against them for labor between certain dates named; that the labor was performed at their request; that they had paid some on the work, and there remained due a sum named, no part of which had been paid, and that he had demanded such balance. Theld, suflicient to sustain a judgment for
such sum. Id. 3. A clerical error in the date of the copy summons served will be disre
garded where such copy correctly states the return day. Id.
4. The fact that the defeated party in justice's court paid the costs and
serve I notice of appeal before the entry of the judgment does not render the appeal ineffectual. O'Connor v. Schmitz (Sup. Ct.), 317.
See ATTACHMENT, 1, 2.
LANDLORD AND TENANT.
See NEGLIGENCE, 21.
LARCENY. 1. In a prosecution for larceny it is error to admit in evidence the exami.
nation of the defendant in supplementary proceedings taken upon a judg. ment recovered for the money which is the subject of the indictment.
People v. Doyle (Sup. Ct.), 128. 2. The indictment charged defendant with larceny in drawing from a bank
certain moneys claimed to belong to an estate. It appeared that testator placed the money in bank in the names of himself and defendant, and it was claimed that defendant had the bank books from that time. He offered to show by the testimony of his wife declarations of testator that he had made a gift of the money to defendant. This testimony was excluded. Held, error; that the evidence was pertinent upon the question I of the intent with which defendant possessed himself of the money. Id. 3. The recorder of the city of Oswego lias jurisdiction to hear and act upon
a charge of larceny based upon a wrongful appropriation of property by a bailee, although he resides in another county, where the bailment was made in Oswego county and the goods were to be returned there. Matter
of McFarland (Sup. Ct.), 573. 4. A person who intentionally appropriates to his own use property held by him as a bailee, is guilty of larceny. Id.
See CRIMINAL LAW, 1.
LEASE. 1. In an action brought in November, 1888, to recover instalments of rent
on a lease for months of September, October and November, the defense was former action pending. It appears that the pending action referred to was for instalments for subsequent months and it did not appear wben it was commenced. Held, that the defense was not made out. Blauvelt v.
Powell (Sup. Ct.), 323. 2. A trespass by strangers is not an eviction. There must be dispossession
by a paramount title or by the act of the landlord, or he or his servants must make the occupancy so annoying and uncomfortable as to justify a
tenant in removing. Id. 3. Where a lessee has a right to have the term of a lease extended by
giving notice of his election, the force of such a notice is not impaired because, in such notice, after stating his election to have the lease extended, he also proposes a modification of its terms with a view to a fur
ther extension. Chamberlain v. Dunlop (Ct. App.), 373. 4. While the acceptance of a new lease by a tenant during the term of a
former one implies a surrender, by operation of law, of the old lease, there must be a valid acceptance of the new lease, and where there was an agreement providing for the conveyance of the whole interest to the tenant and the parties failed to convey a'l of such interest, and the tenant never accepted such lease with knowledge that it did not fulfill the terms of the agreement, and there was never any entry under the lease, and before the time arrived at which the lesse, by iis terms, was to become operative the property had been destroyed by fire, the original lease remains in full
force. Id. 5. An executor is bound to carry out an agreement made by his testator
with a tenant to rebuild in case the building is destroyed by fire. Id. 6. A surrender by the agent of the tenant of a lease for a term of years is
not valid unless the agent is specially authorized in writing to make such surrender, as well as to create, convey or assign such lease. Ramsay v.
Wilkie (N. Y. C. P.), 864. 7. By means of excavations made by an adjoining owner upon his land for
the purpose of building, the alleyway caved in so that defendant was unable to use it. It appeared that this could have been prevented by sheathing the alley: Held, that as the lease required the tenant to make all repairs, and there was no covenant by the landlord to protect him from such injuries, it was the duty of the tenant to shore up the alleyway, and he could not claim an eviction. Id.
See WITNESS, 4.
LEGACY. 1. Interest on a general pecuniary legacy begins to run one year after the
grant of letters testamentary or of administration. Matter of McGoran
(Ct. App.), 686. 2. The words “ granting letters testamentary or of administration,” as
used in the statute includes letters of temporary administration. Id.
LEGATEES, HEIRS, ETC. 1. The design of 1 R. S., 749, $ 4, was not to create a personal liability of
the heir for the amount of the mortgage debt, but to make, so far as practicable, the realty primarily chargeable with the payment of a debt of the decedent secured by mortgage on his land, and when with the mortgaged premises the heir inherits other lands of the same ancestor he takes them cum onere the mortgage debt, if there was a personal liability of the decedent to pay at the time of his decease. Hauselt et al. v. Patterson et al.
(Ct. App.), 354. 2. The liability of the heirs to pay the mortgage out of the property is pro
portiodate with the real estate inherited by them respectively, and the judg
ment must be entered and execution issued accordingly. Id. 3. The omission to plead the defect of parties defendant is a waiver merely
of that defense to the action, without increasing the extent of the liability of the defendants or the amount which the plaintiffs would be entitled to recover against them respectively. Id.
LIBEL. 1. To publish concerning an attorney at law an article saying: Make him
(the plaintiff) village attorney, so that any person that gets injured on the ice will be able to get large damages, is libelous. Matter of Wilcox (Sup.
Ct.), 914. 2. The answer alleged in justification that plaintiff had been attorney for
the village in actions for injuries caused by icy and defective streets, in which the plaintiffs recovered judgments for $1,000 and $4,000, respectively. Held, that this constituted new matter under $ 494 and was demurrable; that as it was not alleged to be a partial defense, it must be tested as a complete defense, and as such was defective, because not coextensive with the charge in the publication. Id.
See TAXES, 2.
MALICIOUS PROSECUTION. 1. Defendant caused the arrest of plaintiff on a charge of placing poison on
the ground adjacent to the boundary line between their lands, with intent
to poison defendant's chickens. Plaintiff was acquitted. In an action for malicious prosecution, defendant testified that on returning home he found his wife crying, and that he employed one M. to investigate the matter of the death of the chickens; that M. informed him that he found meal along plaintiff's fence and that he had a conversation with plaintiff. He was not allowed to testify as to the conversation with his wife por as to what M. stated to him was the conversation which he had with plaintiff. Held, error; that as such communications were made prior to the commencement of the proceedings complained of, they were admissible on the question of good faith on the part of defendant in taking such pro
ceedings. English v. Major (Sup. Ct.), 69. 2. Plaintiff having recovered, in an action for malicious prosecution on a
charge of making false entries in the books of a corporation, by his own testimony that such entries covered payments made for the company to one V. for commissions at the latter's request, a motion for a new trial was made on the ground of newly discovered evidence, being that of V. contradicting that of plaintiff. iield, that the motion was properly granted ; that such evidence was important for defendant, and bore directly on the
issue Dart v. Kudlich (Sup. Ct.), 563. 3. An objection to such motion on the ground of laches is not well taken
where the motion is made within a reasonable time after the proposed case
is made. Id. 4. In actions for malicious prosecution the burden is upon the plaintiff of
showing want of probable cause and malice upon the part of the defendant.
Molloy v. L. I. R. R. Co. (Sup. Ct.), 626. 5. Where the leading facts of a case are not in dispute the question of prob
able cause is one of law for the court and is not for the jury. Id. 6. If the evidence is such that a reasonable man would think a person
guilty of a felony which had been committed, and especially if the stolen articles are found with the accused, who then offers no explanation, probable cause is established and the person is protected in making complaint. Id.
MANDAMUS. The propriety of an order granting a writ of mandamus will not be considered by the appellate court where it appears that such writ has been issued and obeyed, as any ruling thereon would have no practical effect. Matter of Martin (Sup. Ct.), 531.
See RELIGIOUS CORPORATIONS, 1.
MANUFACTURING COMPANIES. 1. A trustee of a corporation created under the manufacturing act, chapter
40, Laws of 1848, may recover for services rendered to the corpora
tion. McDowall v. Sheehan (Sup. Ct.), 104. 2. Where a trustee has recovered against the corporation a judgment for
such services, it is proper and necessary, in an action against a stockholder,
under & 10 of said act, to prove the judgment. Id. 8. There is no rule of law which charges a director or stockholder of a cor
poration with actual knowledge of its business transactions merely because
he is such director or stockholder. Rudd v. Robinson (Ct. App.), 500. 4. The books of account of a corporation are not competent evidence of
themselves to establish an account or claim against a trustee or stockholder in an action brought in behalf of the corporation. Id.
MASTER AND SERVANT. 1. Plaintiff was a brakeman in the employ of defendant, and was injured by being thrown from the car by the giving way of a defective brake. It appeared that the brake staff was connected with the chain by a bolt that passed through it; that upon this occasion the brake gave way by reason of this bolt pulling out; that there was no nut on the bolt, which was an old rusty one, with no thread on it; that the end had been partially riveted, but not sufficiently to hold it. It also appeared that the brake had not been used on that trip prior to the accident; that the car was delivered to defendant by another road the previous day, and an inspection made. Held, that the evidence was sufficient to warrant the jury in finding that the bolt was in the same condition as when the car started; that it was not properly inspected and if it had been the absence of the nut and improper riveting would have been discovered, and that the questions of negligence were properly left to the jury. Fahy v. R., W. & 0. R. R. Co. (Sup.
Ct ), 67. 2. Where the risks of the absence of a guard are open and apparent, and
the servant has been accustomed to use similar machines for years, he must be held to have assumed such risk, and it is error for the court to submit any questions in relation thereto to the jury. Plunkett v. Donovan et al.
(City Ct. B'klyn), 91. 3. One Doran, a superintendent in the employ of defendant, after placing
plaintiff's intestate at work in a cement quarry, negligently r improperly placed others at work drilling near a hole of a blast in which the powder had not exploded, a' d in consequence plaintiff's intestate was injured. Held, that Doran in placing deceased at work where he did acted in his capacity as an employe and not as a representative of the master, and that the latter was not liable for his negligence. Cullen v. Norton (Ct. App.),
359. 4. Where a master has provided a competent and experienced foreman,
who has been in his employment a number of years, he is not chargeable with the consequences of a place for work made dangerous only by the
carelessness and neglect of a fellow-servant. Id. 5. A corporation is bound to carry on its business under a proper system
and under reasonable rules and regulations, and if, through a failure to establish such, a servant is injured, the corporation is liable. Ford v. L.
S. & M. S. R. Co. (Ct. App.), 494. 6. Defendant furnished “gondola” cars, with boxes generally used for carry
ing coal, with stakes, but without brackets to receive them, for the purpose of being loaded with heavy timbers, which were to be drawn about a mile through the city. Plaintiff, who was a switchman in defendant's employ, was injured by timbers which fell from a passing car. Defendant's only rule as to the loading of lumber required its employes“ to attend to the loading of all freight, whether loaded by station men or by shippers, to see that it is safely slored, and so that it cannot fall off the cars." Held, that defendant was liable, as it did not provide, make and promulgate a proper and sufficient rule with respect to the loading of the cars with lumber, which, if faithfully observed, would have given reasonable protection to
its employes. Id. 7. As to such acts the agent occupies the master's place and the latter is
deemed present and liable for the manner in which they are performed.
Id. 8, Plaintiff's intestate, while at work for defendants in caulking a ship,
standing upon a staging, was precipitated therefrom by the breaking of a defective plank and killed. The staging was erected by another class of caulkers known as “lumpers,” hired by defendants under a separate contract with the foreman, one Kennovan. lleld, that the “lumpers” were not servants of defendants, but independent contractors, entirely under the control of Kennovan, and that defendants were not liable. Butler v.
Townsend et al. (Ct. App.), 508. 9. The trial court held that the lumpers were servants of defendants from
the fact that the latter directed their own foreman “ to look after the safety of the scaffold.” Held, that even on that theory defendants were not liable, as the duty violated related not to the place of work, but to an appliance or instrumentality used, and the negligence of the lumpers existing and continuing when the decedent was employed was that of his fellow
servants, even though in some sense it had an earlier origin. I. 10. If a servant, before he enters service, knows or afterwards discovers, or
if, by the exercise of ordinary observation or reasonable skill or diligence he may discover, that the building, machine, or fellow-servant, with whom he is to labor, is unsafe or unfit, and if, notwithstanding, he voluntarily