Village of New Paltz v. Paltz (195 A.D. 952, 1921)

Judgment unanimously affirmed, with costs."

IXDEX ABANDONMENT. See Husband and Wife, 3, 6, 7. ABUTTING OWNERS. See Municipal Corporation, 4, 5, 6. ACCOUNTS AND ACCOUNTING. See, also, Attorney and Client, 1; Corporations, 16; Equity, 2,3; Executors and Administrators, 4; References, 1. When Suit Maintainable. 1. Accounting between members of law firm—right to accounting as to funds paid to firm conditionally and held by one member in trust to await happening of condition — condition fulfilled before trial of suit pending — dismissal of complaint erroneous. Breckenridge v. Cary, 156. 2. Joint adventure — accounting of transaction involved in joint adventure properly granted. Franken -Karch Corporation v. Castriotis, 529. 3. Suit in equity to compel defendant to account as plaintiff’s copartner, sustained. Herman v. Herman, 924. Pleading. 4. _ Complaint stating cause of action for accounting and foreclosure of lien against corporation and directors — allegations stating theory of relief incidental to foreclosure should not be construed as stating separate independent causes of action. New York Income Corporation v. Wells, 136. 5. Sufficiency of complaint to show that plaintiff and defendant were engaged in joint adventure under agreement to divide commissions received from third person — receipt of commission by one party in trust as agent of other party to agreement. Kraemer v. World Wide Trading Co., Inc., 305. ACKNOWLED GHENT. Certificates of acknowledgment of instruments by persons by their marks, are only prima facie proof of due and proper execution, and the question whether instrument was duly executed is for the jury. Bock v. Bock, 59. ADMIRALTY. See Workmen’s Compensation Law, 4. ADOPTION. 1. Voluntary adoption procured without actual or constructive notice to parent should be sustained as evidence showed that parents had abandoned child. People ex rel. Lertlino v. Feser, 91. 2. A parent who has not been heard on abandonment charge cannot be concluded by an ex parte determination but must be afforded hearing, either by direct application to judge who made order or in habeas corpus proceedings. People ex rel. Lentino v. Feser, 91. ADULTERY. See Husband and Wife, 8. AFFIDAVITS. See Process, 1. AGENCY. See Principal and Agent. ALIMONY. See Husband and Wife, 4, 5, 9.

INDEX. 954 AMENDMENT. See Pleadings, 3. ANARCHY. See Crimes, 2. ANNULMENT OF MARRIAGE. See Husband and Wipe, 1-3. APPEAL. See, also, Attorney and Client, 3; Workmen’s Compensation Law, 48. In General. 1. Appeal is proper remedy to prevent enforcement of invalid rule of Municipal Court of New York city. People ex rel. Nassoit v. Young, 513. 2. Leave granted to appeal to Court of Appeals where foreign corporation sued in this State desires to counterclaim where license fee not paid. Howden & Co. of America, Inc., v. American Condenser & Engineering Corporation, 882. 3. Appeal granted after order allowing injunction pendente lite enjoining railroad from increasing rates. People v. Long Island Railroad Co., 897. Raising Question Below. 4. Jurisdiction of court in summary proceedings not reviewable where question raised for first time on appeal. Matter of Balducci v. Rakov, 52. 5. Failure to except to charge of court in submitting question of joint tort feasors precludes raising objection on appeal. Warner v. Brill, 64. 6. In action for breach of executory contract of employment, objection to certain defenses as not authorized cannot be considered, where objections were not raised on trial. Gerard v. Empire Square Realty Co., 244. 7. Failure to raise question of constitutionality of Arbitration Law, in answering affidavit or at Special Term, precludes discussion of question on appeal. Matter of Yeannakopoulos, 261. Taking Appeal. 8. Courts are slow to interfere with decision of police executive officer and if review is sought it should be had without delay. Martin v. 0’ Keefe, 814. Dismissal. 9. Motion to dismiss on ground that appeal not taken in time will be denied where copy of decree and notice of entry are not served by moving party. Matter of Longman, 882. Stay of Proceedings. 10. Stay of proceedings must be denied where no appeal is pending. Canham v. Commonwealth Finance Corporation, 881. Hearing and Determination. 11. Appellate Division is bound to presume that sufficient evidence is offered on behalf of plaintiff to warrant decision in absence of a certificate that case contained all evidence. Booth Co. v. Adams Express Co., 37. 12. Fact that upon argument it was conceded that findings had not been served,, and that exceptions might be filed, did not perfect the record so as to permit a review of facts in absence of certificate that record contained papers required by section 1353 of the Code of Civil Procedure or all evidence necessary to determination of question, and there was no order directing filing of the printed ease as required. Booth Co. v. Adams Express Co., 37. 13. It seems that in an action on deficiency judgment Appellate Division cannot review decision of Connecticut court as to jurisdiction of parties in foreclosure and as to interpretation of Connecticut statute. Witherell v. Kelly, 227. 14. Appeal from surrogate’s decree sustaining exceptions to finding of referee and disallowing claim brings up for review order sustaining

INDEX. 955 APPEAL — Continued. exception to allowance of claim although appellant filed no exceptions to decree of surrogate. Matter of Pluym, 565. Judgment. 15. Amendment of order and judgment of Appellate Division to specify particular question of fact on which reversal based. McKellar v. American Synthetic Dyes, Inc., 896. ARBITRATION. Constitutionality op Statute. 1. Failure to raise question of constitutionality of Arbitration Law, in answering affidavit or at Special Term, precludes discussion of question on appeal. Malter of Yeannakopoulos, 261. Execution of Agreement. 2. Agreement to arbitrate controversies thereafter arising under contract need not be acknowledged — petition and answer establish existence of controversy between parties. Matter of Yeannakopoulos, 261. Construction of Agreement. 3. Breach of warranty in salé of fruit — arbitration agreement in margin of broker’s note of confirmation of sale — issue whether marginal reference to arbitration was part of contract should be summarily tried — subordinate issue as to provision for arbitration “ in the usual manner ” referred to arbitration before the board of arbitration of Dried Fruit Association of New York, authorized to settle disputes of such nature. Matter of Palmer & Pierce, Inc., 523. ARGUMENTS OF COUNSEL. Act of attorney for defendant in criticizing trial justice in argument on appeal, disapproved. McPhillips v. New York Telephone Co., 643. ARREST. See False Imprisonment. ASSAULT AND BATTERY. In action for assault alleged to have been committed by driver of automobile complaint held to be insufficient because of failure to allege intention and willfulness on part of driver.' Brodsky v. Rieser, 557. ASSESSMENTS. See Municipal Corporations, 3-7; Special and Local Assessments; Taxation, 1-9. ATTACHMENT. See Process, 2. ATTORNEY AND CLIENT. See, also, Costs, 2; Equity, 2; Husband and Wipe, 4. Compensation. 1. Contract by corporation to represent landowners in condemnation proceedings — agreement by corporation to divide fees and allowances with attorney is invalid — second agreement respecting refund of witness fees leaving first agreement otherwise unaffected — second agreement under which all fees and allowances were payable to attorney did not divest payment under first — attorney need not account for fees received from outside parties — attorney must account for money equitably due corporation notwithstanding illegal agreement. United States Title Guaranty Co. v. Brown, 738. Disbarment. 2. Attorney at law disbarred for professional misconduct in soliciting business by circular letters containing false statements and for disregarding prior censure and warning of court. Matter of Schwarz, 194. 3. Conviction of attorney in Federal court of felony automatically disbars him by force of section 477 of Judiciary Law and under subdivision 3 of section 88 of said law, and Appellate Division must strike his name from roll on presentation of certified copy of judgment of

956 INDEX. ATTORNEY AND CLIENT — Continued._ conviction— appeal cannot defer action of Appellate Division — if judgment of conviction is reversed application may be made for vacation of order. Matter of Lindheim, 827; Matter of Kaufmann, 830. ATTORNEY-GENERAL. 1. Special Deputy Attorney-General — Attorney-General has power and authority to fix amount of remuneration for special deputies appointed to act in New York county and city comptroller may not audit — section 61 of Executive Law giving Attorney-General power to “ appoint such deputies as he may deem necessary ” and fix com- ' pensation applies only to salaries paid by State — approval by Attorney-General of amount of bill rendered is in law fixation of compensation pro tanto — section 1583 of Greater New York charter providing for auditing of county charges does not apply to Special Deputy Attorney-General appointed by Attorney-General. People ex rel. Rand v. Craig, 850. 2. Special Deputy Attorney-General — claim for compensation as counsel to Attorney-General prior to appointment of special deputy to act in city of New York cannot be fixed by Attorney-General but must ■ be audited by city comptroller ■ under section 1583 of Greater New York charter. People ex rel. Smyth v. Craig, 857; People ex rel. Manley v. Craig, 859. BAILMENTS. Insurance of goods — agent of bailee is authorized to make contract to insure furniture stored free of charge — reliance on defendant’s promise to insure is sufficient consideration for plaintiff’s abandonment of purpose to insure — uninsured furniture having been burned defendant was liable to plaintiff for damages suffered — measure of damages is value of property up to amount of insurance which was to be procured — evidence that furniture was in first-class condition and that like furniture had increased in value since its purchase might be taken into consideration by jury. Siegel v. Spear & Co., 845. BANKRUPTCY. See Sales, 4. BANKS AND BANKING. See, also, Customs and Usages, 1; Executors and Administrators, 2. Stockholders’ Liability. 1. Bank commissioner of foreign State may enforce assessment against stockholder resident of this State — constitutionality of foreign statute increasing liability of stockholder — unnecessary for bank to give notice to testator of meeting called for purpose of determining election of bank to continue business under the act — interest is properly chargeable against an assessment by bank — costs are properly taxed and allowed where action is based upon matters' foreign to administration. Maxwell v. Thompson, 616. Loans and Discounts. 2. The penalty prescribed by section 114 of Banking Law for the exaction of interest in excess of six per centum per annum can be recovered only in action expressly brought for that purpose, and prior suit for accounting not res adjudicata in such case nor an election of remedies. Teplitz v. Bloomingdale, 15. BARGE CANAL. See Canals. BILL OF PARTICULARS. See Pleadings, 17-22. BILLS AND NOTES. See, also, Contracts, 2; Evidence, 8; Payment. 1. Distinction between time of presentment of demand notes carrying interest and those not carrying interest has been abolished — deter-

INDEX. 957 BILLS AND NOTES — Continued. mination of question whether demand note was presented within reasonable time is one of fact, and if facts are disputed question is to be determined by jury. American Trust Co. v. Manley, 811. 2. Where holder of demand note testifies that at request and express solicitation of accommodation indorser, note was not presented until three and one-half years had passed, but accommodation indorser testifies to contrary, jury should determine whether note was presented “ within a reasonable time.” American Trust Co. v. Manley, 811. BONDS. See Landlord and Tenant, 3. BOOKS. See Corporations, 4. BROKERS. See Contracts, 1, 4; Conversion, 1; Principal and Agent, 1-4. BURDEN OF PROOF. e See Damages, 6; Evidence, 4. CANALS. Appropriation of land — method of appropriation of land for Barge canal as stated in section 4 of the original Barge Canal Act is not exclusive — appropriation by entry and occupation without notice — filing map by State Engineer is not condition precedent to claim for appropriation — enabling acts giving Court of Claims jurisdiction to award compensation for land appropriated shows intent of Legislature respecting lands appropriated — claim barred by Statute of Limitations entitles claimant to most favorable view — destruction of water rights at level long existing by raising of river amounts to appropriation — damages should allow market value of property taken with consequential remainder — although claim for permanent appropriation is barred by Statute of Limitations interference with water supply is mere trespass and claimant lost right to compensation by failure seasonably to file notice of intention to file claim. American Woolen Co. v. State of New York, 698. CHARGE. See Appeal, 5; Master and Servant, 5, 6; Trial, 5. CHILDREN. See Adoption; Parent and Child, 1, 2. CITY. See Municipal Corporations. CODE OF CIVIL PROCEDURE. [For table containing all sections cited and construed in this volume, see ante, p. lxxvii.] CODE OF CRIMINAL PROCEDURE. [For table containing all sections cited and construed in this volume, see ante, p. Ixxviii.] CODE OF LEGAL ETHICS. [For table containing all canons cited and construed in this volume, see ante, p. lxxx.] CODE OF PROCEDURE. [For table containing all sections cited and construed in this volume, see ante, p. lxxvii.] COINSURANCE. See Insurance, 3. COMMERCIAL PAPER. See Bills and Notes,

INDEX. 958 COMMISSIONS. See Principal and Agent, 5-12. COMMUNIST SOCIALISM. See Crimes, 2. COMPLAINT. See Pleadings, 4r-7. CONDEMNATION PROCEEDINGS. See Attorney and Client, 1; Canals. CONFLICT OF LAWS. See, also, Banks and Banking, 1. State court has no right to enjoin proceedings in United States court where latter court has jurisdiction of parties and subject-matter of litigation — fact that plaintiff cannot set up all defenses or counterclaims does not warrant interference — multiplicity of actions does not furnish basis for relief. Susquehanna S. S. Co., Inc., v. Andersen & Co., Inc., 161. * [For table of all statutes of States and Territories and foreign countries cited and construed in this volume, see ante, pp. lxxix and Ixxx.] CONSOLIDATED LAWS. [For table containing all chapters and sections cited and construed in this volume, see ante, p. lxviii.] CONSPIRACY. See, also, Monopolies and Combinations. Jury warranted in finding person charged with criminal anarchy advocated overthrow of government by acts constituting violation of sections 580 and 582 of Penal Law. People v. Gitlow, 773. CONSTITUTIONAL LAW. See, also, Arbitration, 1; Banks and Banking, 1. Retroactive Effect of Statute. 1. Tax Law relating to income of non-residents is not invalid because it operates retroactively. People ex rel. Stafford y. Travis, 635. Criminal Anarchy Statute. 2. Statute creating crime of criminal anarchy does not violate Fourteenth Amendment of Federal Constitution, due process of law guaranteed by article 1, section 6, and freedom of speech, etc., guaranteed by article 1, section 8, of State Constitution. People v. Gitlow, 773. Rehabilitation Fund. 3. Provision for raising and administering rehabilitation fund sustained. Watkinson v. Hotel Pennsylvania, 624. Workmen’s Compensation Law. 4. Legislature has power to enact Workmen’s Compensation Law, to take away statutory remedy for death claim and substitute another therefor. Culhane v. Economical Garage, Inc., 108. 5. Provision of Workmen’s Compensation Law, relative to payment of death benefit of $900 where there are no dependents is valid. Watkinson v. Hotel Pennsylvania, 624. [For tables of the sections of the United States and New York Constitutions cited and construed in this volume, see ante, pp. lxvi and lxvii.j CONTEMPT. Parties to Action. 1. Violation of injunction restraining defendant from engaging in business — plaintiff must show actual damages — extent of penalty or fine when actual damages not shown —■ covenant for liquidated damages preceding covenant not to engage in business does not control, <7r«nd Art Flower Cq„ Im., v, Markovits, 387,

INDEX. 959 CONTEMPT — Continued. Witnesses. 2. Witness not guilty of contempt by refusing to testify before referee where order of reference was granted and refusal to testify took place before complaint was verified and summons served. Finkenberg, Inc., v. Crompton Building Corporation, 20. CONTRACTS. See, also, Arbitration, 2, 3; Corporations, 5, 6; Master* and Servant, 1; Sales, 1-4; Vendor and Purchaser, 2, 4. Legality. 1. Purchases of cotton future contracts do not become unlawful by being closed out by sale of broker, by direction of customer, before time of delivery under contract. Scandinavian Import-Export Co., Inc., v. Bachman, 297. Interpretation. 2. In action on promissory note setting up as defense agreement by plaintiff to execute release to defendant, parol evidence not admissible to explain meaning of “as individual ” in agreement. Gold v. Ross, 721. 3. - Where letter actually on its face purports to be written agreement but is only supplementary to an oral contract, parol evidence is admissible to determine what contract was. Metzger v. Coe-Stapley Manufacturing Corporation, 664. Rescission. 4. Action by stockbroker to recover balance due on marginal account — error to charge jury that verdict for defendant might be rendered not on theory that second order was purchased but that plaintiff would have purchased before such time and at price which would have left credit^ balance in favor of defendant — right of broker where customer repudiated order to sell stock short — failure of purchasers to give directions, brokers were within right in purchasing stock at market, at time and place specified, to cover short sales. Newburger v. Levinson, 602. Performance and Breach. 5. Action for breach of factor’s agreement — substantial damages not shown by unestablished affirmative allegation that plaintiff diligently, but unsuccessfully, endeavored to secure another factor, and that it was compelled to discontinue business — measure of damages where another factor is procured to complete contract — burden of proof is on plaintiff to show substantial damages. Allied Silk Manufacturers, Inc., v. Erstein,_ 366.. 6. Amount stipulated in agreement not to engage in business is not liquidated damages where covenant as to liquidated damages preceded covenant not to engage in business — error for court to impose fine for contempt in violating injunction in amount stipulated in contract instead of under section 773 of Judiciary Law. Grand Art Flower Co., Inc., v. Markovits, 387. 7. Contract between millinery establishment and designer that latter should make trips to Europe at times deemed most advantageous to establishment gives no right of action for more than nominal damages for breach of such contract. Inglesli v. Hickson, Inc., 585. CONTRIBUTORY NEGLIGENCE. See Negligence, 6, 7. CONVERSION. 1. Stock — in action for alleged conversion of stock, the question whether_ defendants agreed to carry said stock or whether sale was for cash, evidence sufficient to show that defendants did not convert stock by sale. Jacobs v. Moore, 452. 2. Failure by buyer to return goods rejected by him to seller, constitutes conversion. Stockamore Leather Co. v. Duane Shoe Co., 947. CONVEYANCES. See Deeds.

INDEX. 960 CORPORATIONS. See, also, Appeal, 2; Banks and Banking; Conversion, 1; Negligence, 2; Pleadings, 13, 15; Taxation, 1, 14. In corporation.' 1. Provision in certificate of incorporation that directors can be elected only by unanimous consent of stockholders is invalid as violative of common law and would be contrary to public policy — Stock Corporation Law, § 25, construed and applied. Matter of Boulevard Theatre & Realty Co., 518. Residence. 2. Domestic . corporation is deemed to have residence in county where principal place of business is located. Carvel Court Realty Co., Inc., v. Jonas, 662. Dividends. 3. Declaration of dividends of corporations is within discretion of directors and their action with reference thereto, in the absence of bad faith, will not be disturbed by a court of equity — complaint insufficient which does not show that - directors recognized propriety of declaring dividends,- nor duty so to do, but merely charges general bad faith — allegations as to collusion insufficient to warrant relief. . Nauss v. Nauss Brothers Co., No. 1, 318. Stockholders. 4. Inspection of books — equity will not interfere on theory that it is necessary to maintain status quo pending mandamus proceedings instituted for purpose of inspection of books. Nauss v. Nauss Brothers Co., No. 1, 318. Directors. 5. Executory contract of employment — power of majority of directors, acting separately and not collectively, does not extend to bind corporation — acts of all directors who own all stock bind corporation though they act separately and not collectively — measure of damages for breach of executory contract compensable only and claim for money expended by plaintiffs cannot properly be included. Gerard v. Empire Square Realty Co., 244. Ultra Vires Contracts. 6. Corporation may not repudiate agreement to deal in cotton futures and recover back moneys deposited as margins on ground of ultra vires acts where it is authorized to buy and sell all kinds of personal property — corporation’s agreement for purchase of cotton futures with brokers not unlawful — allegations of complaint that defendants executed orders given by plaintiff for purchase and sale of cotton future contracts preclude recovery by plaintiffs in disregard of transactions had by defendants for its account, of money it deposited with defendants. Scandinavian Import-Export Co., Inc., v. Bachman, 297. Actions By and Against. 7. Defense of ultra vires with respect to trading corporations is not favored. Scandinavian Import-Export Co., Inc., v. Bachman, 297. 8. Action in equity by stockholder against corporation and executrix of stockholder to compel distribution of dividends and for other relief, on appeal from an order of the executrix denying her motion on pleadings, question presented for decision is whether complaint sufficiently states cause of action for any equitable relief demanded, and whether she, in her representative capacity, is proper party. Nauss v. Nauss Brothers Co., No. 1, 318. 9. Executrix of stockholder neither necessary nor proper party in equitable action to compel defendant to declare and distribute dividends. Nauss v. Nauss Brothers Co,, No. 1, 318. 10. Service of summons on corporation will not be set aside on ground that it was not made on managing agent, authorized to receive service, where facts show exercise of powers of managing agent by person who alone is in' apparent charge and. control. Municipal Mortgage Co. v. 161 8th Ave Co., Inc., 370. 11. Organization of United States Shipping Board — Congress havmr provided for incorporation of defendant and authorized Shipping Board

INDEX. 961 CORPORATIONS — Continued. for and on behalf of United States to subscribe not less than one-half capital stock, authorized creation of artificial person and laid aside its sovereign character taking on that of private citizen, stockholder in corporation — such corporation became Bable for debts and satisfaction of such debts is to be obtained out of its property and not as claim, against United States — New York courts have jurisdiction over transactions within State. Ingersoll-Rand Co. v. United States Shipping Board Emergency Fleet Corporation, 838. Foreign Corporations. 12. Oil wells leased by foreign corporation are taxable as real property. Matter of Hazelwood Oil Co., 23. 13. What constitutes doing business within State — casual and occasional solicitation of orders within State does not constitute doing business therein. Sunrise Lumber Co.,-Inc., v. Biery Lumber Ho., 170. 14. Service can only be made on president of corporation who is temporarily within State when corporation doing business within State. Sunrise Lumber Co., Inc., v. Biery Lumber Co., 170. 15. Receivers — courts of this State have jurisdiction to intervene in behalf of stockholders of foreign corporation and appoint receiver therefor. McHarg v. Commonwealth Finance Corporation, 862. 16. Stockholder’s liability for costs in action for accounting — where a stockholder has asked for an accounting and receivership and by stipulation between parties action is discontinued, without costs, stockholder is liable for services and expenses of receivers. McHarg v. Commonwealth Finance Corporation, 862. Counter claim. 17. Right of foreign corporation to set up counterclaim although Bcense fee is not paid. Howden & Co. of America, Inc., v. American Condenser & Engineering Corporation, 882. COSTS. See, also, Attorney and Client, 1; Receivers, 1. _ 1. Plaintiff may properly be denied costs where condition on which his right of action depended happened after action commenced, thereby ripening his claim. Brechenridge v. Cary, 156. 2. Wife not entitled to counsel fees in action for separation where she fails to present to court reasonable ground for commencing action and that there is reasonable probability that she will succeed. Bomb v. Bomb, 526. 3. Against executors — costs properly taxed where right to maintain action is based upon matters foreign to administration of estate. Maxwell v. Thompson, 616. 4. Assessors are entitled to costs and disbursements where assessment sustained on review. People ex rel. Haile v. Parow, 745. COUNTERCLAIM. See Copartners, 17; Pleadings, 13-16. COURT OF CLAIMS. See, also, Canals. Jurisdiction of Court of Claims to pass on claim arising out of cohtract where change in contract was brought about by change of law. Callanan v. State of New York, 944. COURTS. See, also, Habeas Corpus, 1; Injunction, 3; Prohibition. Jurisdiction. 1. Supreme Court has jurisdiction over action against corporation in which United States government owns more than half of stock. Ingersoll-Rand Co. v. United States Shipping Board Emergency Fleet Corporation, 838. 2. Jurisdiction of Court of Claims to pass on claim arising out of contract where change in contract was brought about by change of law. Callanan v. State of New York, 944. App. Div.—Yol. CXCV. 61

INDEX. 962 COURTS —■ Continued. Rules op Court. 3. Rule 35 of Municipal Court of City of New York providing that actions for rent, rental value or occupation of premises and actions for damages sustained through holding over of occupant shall be brought in district where premises are situated is invalid — enforcement cannot be prevented by prohibition. People ex rel. Nassoit v. Young, 513. COVENANTS. See Easements; Landlord and Tenant, 2, 3; Vendor and Purchaser. CRIMES. See, also, Attorney and Client, 3. Evidence. 1. Proof of other crimes — error to permit district attorney after cross-examination of defendant as to watch on his person to call witness to prove his ownership of watch, thus tending to prove distinct and independent crime. People v. Lehman, 907. Particular Crimes. 2. Criminal anarchy — conviction of person for publication of manifesto in aid of Communist struggle —- Penal Law sections 160-166, relating to criminal anarchy, are not' unconstitutional — Legislature has power to make it a crime to advocate within State overthrow of United States Government or of government of another State — such provisions not legislation interfering with free speech — common-law theory of causal connection between acts prohibited and dangers apprehended is not applicable to criminal anarchy — words “ by unlawful means ” as used in Penal Law, sections 160, 161, construed —• criminal anarchy is made crime without criminal intent — evasion of statute by using existing government is no defense — evidence by member of bar of foreign city is admissible to show nature of mass strike — evidence as to circumstances under which articles forming basis of prosecution were prepared is admissible — persistence in offering evidence formerly rejected did not prejudice defendant •—■ argument of district attorney not prejudicial — preclusion of defendant from making statements of facts not in evidence was not prejudicial — charge of court not prejudicial — acts warranting finding person guilty of conspiracy in violation of sections 580-582 of Penal Law. People v. Gitlow, 773. 3. Rape — second degree rape — birth of child as corroborative of prosecuting witness •— testimony — trial — charge. People v. Whitson, 910. 4. Robbery — reversible error in prosecution for robbery to admit evidence of police officers and complaining witness that latter pointed out defendants as perpetrators from among number of men lined up. People v. Ragazinsky, 743. [For tables containing all sections of the Penal Code and Penal Law and of the United States and State Criminal Codes cited and construed in this volume, see ante, pp. lxvii and Ixxviii.] CRUEL AND UNUSUAL TREATMENT. See Husband and Wife, 8. CUSTOMS AND USAGES. 1. Banking business, how “ Sale of Cable Transfer of Exchange ” used in. Equitable Trust Co. v. Keene, 384. 2. The term “ sale of whiskey in bond ” is not subject to change by evidence of custom or usage. Turner-Looker Co. v. Aprile, 706. DAMS. See Nuisance. DAMAGES. See, also, Bailments; Canals; Contracts, 5-7; Landlord and Tenant, 3, 4; Principal and Agent, 6-9; Ships and Shihping. Nominal Damages. 1. Contract between millinery establishment and designer that latter should make trips to Europe at times deemed most advantageous to

INDEX. 963 DAMAGES — Continued. establishment gives no right of action for more than nominal damages for breach thereof. Inglesli v. Hickson, Inc., 585. Measure of Damages. 2. Measure of damages for breach of executory contract of employment is compensation for resulting breach which is question for jury — error to include in directed verdict amount of claim for money expended by plaintiffs for use of defendants. Gerard v. Empire Square Realty Co., 244. 3. Action for breach of factor’s agreement — substantial damages not shown by unestablished affirmative allegation that plaintiff diligently, but unsuccessfully, endeavored to secure another factor, and that it was compelled to discontinue business — measure of damages where another factor is procured to complete contract. Allied Silk Manufacturers, Inc., v. Erstein, 366. 4. Measure of damages for loss of commission on failure of purchaser to take coal purchased from plaintiff’s principal, would be agreed commissions if reasonable. Newman v. Pierson, 407. 5. Damages on breach of contract to deliver coal during summer and winter of 1918 computed at thirty cents per ton in summer and fifty cents per ton in winter. Marrone v. Somers Coal Co., Inc., 903. Burden of Proof. 6. Burden of proof in action against factor for breach of contract is on plaintiff to show substantial damages. Allied Silk Manufacturers, Inc., v. Erstein, 366. DEBTOR AND CREDITOR. Vacation of judgment against defaulting debtor — entry of judgment against defaulting joint debtor erroneous where action not severed —■ severance of action after judgment entered does not cure error and warrants vacation thereof on motion. Kriser v. Rodgers, 394. DECEDENT’S ESTATE. See Descent and Distribution; Taxation, 14, 15. DEEDS. See, also, Easements; Ejectment, 1; Vendor and Purchaser. Execution. 1. Question whether instrument was duly; executed by persons by mailing their marks is for the jury and certificate of acknowledgment is prima facie proof only. Rock v. Rock, 59. Operation and Effect. 2. Deed executed by judgment debtor after verdict against him, but before judgment was entered passes good title. Boyle v. Blank-horn, 265. DEFINITIONS. 1. “ Sale of Cable Transfer of Exchange.” Equitable Trust Co. v. Keene, 384. 2. “ Factory,” within Labor Law. Davis Brothers Realty Corporation, Inc., v. Harte, 403. 3. “ Dishonest,” as used in libelous communication. Browne v. Prudden-Winslow Co., 419. 4. “ In the usual manner,” as referring to arbitration. Matter of Palmer & Pierce, Inc., 523. DEMURRER. See Pleadings, 8, 9. DEPOSITIONS. See, also, Contempt, 2. In General. 1. Purpose of bill of particulars and of examination before trial stated — right to have bill of particulars served before examination of defendant before trial. Zecchini v. Mayer, 423.

964 INDEX. DEPOSITIONS —■ Continued. Examination before Trial. 2. Where plaintiff sues on agreement and answer alleges that terms are not fully nor correctly set out, and that terms were changed, without stating the change, leaving facts covert, does not constitute good denial — under such circumstances plaintiff may have examination before trial. Simon v. Waldinger & Glaser, Inc., 908. DESCENT AND DISTRIBUTION. 1. Distribution of personal property of married woman dying intestate leaving husband and no descendants is controlled by common law and estate vests in husband without administration. Conlon v. Union Dime Savings Bank, 509. 2. Administrator of deceased husband is entitled to deposit carried by deceased as administrator of his deceased wife’s estate under section 103 of Decedent Estate Law. Conlon v. Union Dime Savings Bank, 509. DIRECTORS. See Corporations, 5. DISCOVERY AND INSPECTION. Independent action for discovery is not maintainable. Huyler’s v. Broadway-John Street Corp., 410. DISMISSAL. See Appeal, 9. DOCUMENTARY EVIDENCE. See Evidence, 14. DOMESTIC RELATIONS. See Adoption; Husband and Wipe; Parent and Child. DOWER. See Vendor and Purchaser, 7, 8. DRAFTS. See Evidence, 15. DUE PROCESS OF LAW. See Executors and Administrators, 3. EASEMENTS. Right to have and maintain water pipe underground from spring — original premises where spring was located and pipe discharged on one farm, subsequently divided by brothers by quitclaim deeds, plaintiff’s testator receiving deed to house and curtilage, but none of deeds mentioned pipe or spring — defendant acquiring property on which spring was located by warranty deed without any reservation as to pipe or spring, and although house had been supplied with water from spring for many years, right to have and maintain pipe did not pass under deed from plaintiff’s brother to plaintiff — no implied easement in favor of plaintiff survived full covenant and warranty deed. Steinbeck v. Helena, 186. EDUCATION LAW. Rehabilitation fund — validity of provision of law for raising and administering rehabilitation fund, sustained. Wathinson v. Hotel Pennsylvania, 624. EJECTMENT. 1. In action in ejectment based on deed alleged to have been executed by defendants the certificate of acknowledgment is prima facie proof only of due and proper execution of instrument. Bock v. Bock, 59. 2. Summary proceedings cannot be maintained against tenant for failure to obey order of fire department, though lease contains covenant for forfeiture for failure so to do — such proceedings cannot be maintained under section 94 of the Labor Law where lease did not obligate compliance with Labor Law but only with orders of municipal and other lawful authorities — ejectment proper remedy, Davis Brothers Realty Corporation.,. Infi,, y. Harto, 4Q3,

INDEX. 965 ELECTRICITY. See Gas and Electricity. EMPLOYMENT. See Damages, 1, 2. EQUITY. See, also, Accounts and Accounting; Corporations, 3, 4, 8, 9; Discovery and Inspection; Evidence, 4; Joint Adventure; Municipal Corporations, 6; Nuisance; Partition, 2. Estoppel. 1. Rule as to equitable estoppel stated — plaintiff in foreclosure estopped from entering deficiency judgment where mortgagor relied on assurances that there would be no deficiency judgment. Wither ell v. Kelly, 227. Accounting. 2. Accounting between members of law firm — right to accounting as to funds paid to firm conditionally and held by one member in trust to await happening of condition — condition fulfilled before trial of suit pending — dismissal of complaint erroneous. Breckenridge v. Cary, 156. 3. Complaint stating cause of action for accounting and foreclosure of lien against corporation and directors — allegations stating theory of relief incidental to foreclosure should not be construed as stating separate independent causes of action. New York Income Corporation v. Wells, 136. Examination of Corporate Books. 4. Equity will not interfere on theory that it is necessary to maintain status quo pending mandamus proceedings instituted for purpose of inspection of books. Nauss v. Nauss Brothers Co., No. 1, 318. Pleadings. 5. Determination of sufficiency of complaint in equity on demurrer and after issue joined by answer and cause is brought to trial as suit in equity — complaint cannot be dismissed on ground that plaintiff was not entitled to equitable relief in event it shows action at law. Kraemer v. World Wide Trading Co., Inc., 305. Costs. _ 6. Plaintiff may properly be denied costs where condition on which his right of action depended happened after action commenced thereby ripening his claim. Breckenridge v. Cary, 156. ESTOPPEL. See Equity, 1; Mortgages. EVIDENCE. See, also, Contracts, 3; Crimes, 1; Damages, 6; Ejectment, 1; Libel, 1; Master and Servant, 2, 5; Motor Vehicles, 5; Vendor and Purchaser, 6; Workmen’s Compensation Law, 36-43. Presumptions. 1. In action for injury through collision of street car and motor truck, court may properly charge that negligence may be presumed on part of carrier in absence of explanation of cause of accident consistent with ordinary care — such presumption rests upon duty carrier owes to passengers in connection with circumstances showing injury might have been occasioned by failure to perform such duty. Plumb v. Richmond Light & R. R. Co., 254. Judicial Notice. 2. Court will take judicial notice of meaning of “ sale of whiskey in bond.” Turner-Looker Co. v. A-prile, 706. 3. Appellate Division may take Judicial notice of acts of Congress, executive orders of President of United States and of historical facts of general interest. Ingersoll-Rand Co. v. United States Shipping Board Emergency Fleet Corporation, 838.

966 INDEX. EVIDENCE — Continued. Burden of Proof. 4. Plaintiff in equity ease must bear burden of proving case by legal and competent evidence to same extent as in any action. Hurwitz v. Calvin Realty Corporation, 416. Relevancy, Materiality and Competency. 5. The purpose of section 829 of the Code of Civil Procedure is to protect estate in the hands of the executors or administrators and to prevent persons interested in the event of an action or special proceeding from testifying to conversations with the deceased. Matter of Gratton, 32. 6. Parol evidence cannot be received to impeach official certification of bill by presiding official, or journals of respective houses. People ex rel. Durham Realty Corporation v. La Petra, 280. 7. Where letter actually on its face purporting to be written agreement but is only supplementary to an oral contract, parol evidence is admissible to determine what contract was. Metzger v. Coe-Stapley Manufacturing Corporation, 664. 8. In action on promissory note setting up as defense agreement by plaintiff to execute release to defendant, parol evidence not admissible to explain meaning of “as individual” in agreement — agreement to execute release, though not signed by defendant, was good defense to action on note — transactions respecting two speculative corporations and individual and corporate payments were intermingled and adjusted on sale of plaintiff’s interest to third person and comprehended whole subject-matter. Gold v. Ross, 721. Res Gestae. 9. Action to recover for injuries sustained by child struck by automobile truck — acts of driver attempting to run away were not part of res gestos. Molino v. City of New York, 496. Weight and Sufficiency. 10. Correspondence between parties for purpose of reducing to writing contract which they had made through broker sufficient to show prima facie the making of the contract. Asinof & Sons, Inc., v. Preudenthal, 79. 11. In an action for breach of contract for the manufacture and sale of goods, evidence held to make out prima facie case of valid contract. Bellas Hess & Co., Inc., v. Alexander & Co., Inc., 313. 12. Shoplifter suing for false imprisonment — evidence insufficient to establish that resultant neurasthenia caused disability. Carroll v. Gimbel Brothers, New York, 444. 13. Evidence that furniture in possession of bailee and destroyed by fire was in first-class condition and that like furniture had increased in value from fifty per cent to seventy-five per cent was sufficient to warrant amount of verdict. Siegel v. Spear & Co., 845. Documentary Evidence. 14. Best evidence rule relates entirely to documentary evidence. Carroll v. Gimbel Brothers, New York, 444. Expert Evidence. 15. Forgery of acceptance of draft may be proved by testimony of handwriting expert by comparison of alleged forged signature with specimen signatures by forger testified to by him as having been written by him, and by specimens of drawer's signature and writings, testified to by witness for plaintiff as being signatures_ and writings of drawer — specimen signatures of forger testified to by him as not having been written by him, but testified to by witness, after comparison with acknowledged specimens, were not admissible — admission of disputed standards for comparison of signatures and writings is erroneous. Turnure v. Breitung, 200. EXAMINATION BEFORE TRIAL. See Depositions. EXCEPTIONS AND OBJECTIONS. See Appeal, 4-7.

INDEX. 967 EXECUTORS AND ADMINISTRATORS. See, also, Banks and Banking, 1; Cobpobations, 9; Costs, 3; Descent and Distbibution, 2; Taxation, 14. Appointment. 1. Husband who may obtain possession of his deceased wife’s personalty may do so without administration. Cordon v. Union Dime Savings Bank, 509. Powebs, Duties and Liabilities. 2. Where husband is appointed administrator of wife’s estate and gains possession of her money which he deposits in his own name as administrator, deposit should be paid to his administrator on his death rather than to administrator de bonis non of wife, form of deposit not changing fact of exclusive ownership. Conlon v. Union Dime Savings Bank, 509. 3. Possession of testator’s property — executor is properly granted leave under Code of Civil Procedure, section 2701, to enter into possession of testator’s real property and control and manage same where legacies to be paid amount to $35,000 and total personal and real property do not exceed $40,000, with indebtedness of $2,000, and non-resident residuary _ devisee has divested herself of all her interest and interest and principal are due and payable on mortgage — such order does not deprive residuary devisee or her grantee of property without due process of law. Matter of Mould, 822. Accounting. _4. Legatee who has assigned legacy for advances in excess of distributive share and who is also judgment creditor of another legatee, has no standing in court on judicial settlement. Matter of Pluym, 565. Claims against Estate. 5. When release of claim by executor against partnership to testator’s partner does not bar such partner’s right to assert claim as legatee. Matter of Pluym, 565. 6. Proof by widow of alleged claim against husband’s estate for money loaned, held insufficient. Matter of Sheive, 631. Actions by and against. 7. Costs properly taxed where right to maintain action against executors is based upon matters foreign to administration of estate. Maxwell v. Thompson, 616. EXEMPTIONS. See Special and Local Assessments, 1, 2. EXPERT EVIDENCE. See Evidence, 15. FACTORS. See Contbacts, 5; Damages, 3, 6. FALSE IMPRISONMENT. Action by alleged_ shoplifter for damages for unlawful arrest and detention — verdict in favor of plaintiff contrary to evidence —- rejection of evidence as to confession of theft of other articles erroneous. Carroll v. Girnbel Brothers, New York, 444. FIRE INSURANCE. See Insubance. FORECLOSURE. See Equity, 1, 3; Liens, 2; Mobtgages. FOREIGN CORPORATIONS. See Cobpobations, 12-17. FORGERY, See Evidence, 15. FRAUD. See Release, 2„

INDEX. 968 GAS AND ELECTRICITY. Rates. 1. Injunction pendente lite properly granted in action against gas company to restrain enforcement of rates fixed by it independently of Public Service Commission after statutory rates had been adjudged confiscatory — issues may then be determined by trial and not on affidavits. Morrell v. Brooklyn Borough Gas Co., 1. 2. Legislature does not authorize gas company to change rates under subdivision 12 of section 66 of the Public Service Commissions Law, but recourse must be had to subdivision 5 of section 66. Public Service Comm. v. Pavilion Natural Gas Co., 534. 3. Suit to have statutes fixing gas rates declared unreasonable and confiscatory — court may order reference where long and complicated accounts must be examined. Bronx Gas & Electric Co. v. Public Service Comm., First Dist., 554. 4. G-as company cannot raise rates above franchise maximum by filing schedules and publishing under Public Service Commissions Law, section 66, subdivision 12 — procedure must be taken in pursuance of section 71 of said law — Commission after hearing may abrogate contract and fix rate not exceeding that named by statute. Village of Warsaw v. Pavilion Natural Gas Co., 716. Franchise. 5. Franchise fixing maximum rates for gas — Legislature and Public Service Commission have power to modify, but company has no power to change by giving notice to Public Service Commission and by publication. Public Service Comm. v. Pavilion Natural Gas Co., 534. GENERAL LAWS. [For table containing all chapters and sections cited and construed in this volume, see ante, p. Ixviii.] GREATER NEW YORK CHARTER. [For table containing all sections cited and construed in this volume, see ante, p. lxxix.] HABEAS CORPUS. Purpose of Writ. . 1. Conviction of relator by city magistrate, holding Domestic Relations Court, was by tribunal of competent jurisdiction — judgment as to relator final until reversed on appeal — writ of habeas corpus does not bring up for review court rulings as to effect of amended decree entered by Nevada court. People ex rel. Spaet v. Warden of City Prison, Kings County, 908. Possession of Child. 2. Habeas corpus to obtain possession of infant daughter sought by mother should be dismissed where respondent is respectable and financially able properly to care for the child and stepfather of child is professional gambler in State’s prison. People ex rel. Lentino v. Feser, 90. HAZARDOUS EMPLOYMENT. See Workmen’s Compensation Law, 22, 23. HUSBAND AND WIFE. Annulment of Marriage. 1. Sane spouse cannot maintain action for annulment of marriage on ground of insanity. Reed v. Reed, 531. 2. Custody of children — on annulment of marriage in action by wife on ground that she was not of age of consent, court has power to award her custody and care of issue of marriage. Nealon v. Nealon, 694. 3. Support of child —• on annulment of marriage by wife, because of lack of legal age, guilty husband may be required to support child, it appearing that he was of age and had abandoned his wife. Nealon v. Nealon, 694. Separation. 4. In action for separation alimony and counsel fees should not be granted pendente lite where necessary to set aside prior valid separation

INDEX. 969 HUSBAND AND WIFE — Continued. agreement — validity of separation agreement cannot be tried on affidavits. Davis v. Davis, 430. 5. Alimony — agreement pending divorce proceedings to secure payment of money in lieu of dower, alimony, etc., construed as guaranty on part of defendant — former decision of Appellate Division between same parties on same issue binding — acquiescence in prior decision by paying amount of judgment constitutes practical construction and interpretation of contract — conveyance of property by husband to defendant in trust as indemnity does not affect agreement. Brown v. Cleveland Trust Co., 465. 6. Abandonment on part of husband not shown by evidence but rather refusal on part of wife unjustifiably, to live with husband — decree in favor of wife denied. Domb v. Domb, 526. 7. Abandonment entitling spouse to decree of separation must be one contemplating voluntary separation of one from the other without justification. Domb v. Domb, 526. 8. Complaint alleging adultery by husband insufficient as allegation of cruel and inhuman treatment — causes of action for. divorce and separation cannot be united — adultery accompanied by other acts and conduct may constitute cruel and inhuman treatment. Hofmann v. Hofmann, 596. 9. Alimony — wife not entitled to alimony pendente lite and counsel fees where she fails to present to court any evidence that there is reasonable ground for commencing action and that there is reasonable probability that she will succeed. Domb v. Domb, 526. IMMATERIAL ALLEGATIONS. See Pleadings, 24. IMPUTED NEGLIGENCE. See Negligence, 5. INCOME TAX. See Taxation, 12, 13. INCOMPETENT PERSONS. See Insane Persons. INFANTS. See Parent and Child. INJUNCTION. See, also, Contempt; Gas and Electricity, 1; Landlord and Tenant, 10; Summary Proceedings, 4, 5. Pendente Lite. 1. Injunction pendente lite properly granted in action against gas company to restrain enforcement of rates fixed by it independently of Public Service Commission after statutory rates had been adjudged confiscatory — issues may then be determined by trial and not on affidavits. Morrell v. Brooklyn Borough Gas Co., 1. Rights Protected. 2. Corporation engaged in masonry construction which has been compelled to abandon performance of contract because its president had been expelled from union and thereafter it was interfered with by contractors’ association and union, is entitled to injunction and damages. Brescia Const. Co. v. Stone Masons Contractors’ Assra., 647. Judicial Proceedings. 3. State court has no right to enjoin proceedings in United States court where latter court has jurisdiction of parties and subject-matter of litigation — fact that plaintiff cannot set up all defenses or counterclaims does not warrant interference — multiplicity of actions does not furnish basis for relief. Susquehanna S. S. Co., Inc., v. Andersen & Co., Inc., 161. 4. Summary proceedings in Municipal Court of City of New York will not be restrained where matters set up constitute defenses which may be set up in answer. Huyler’s v. Broadway-John Street Corp., 410.

INDEX. 970 INJUNCTION — Continued. Modification. 5. Injunction modified by limiting amount of stock to be held by defendants to $18,000 — provision for vacation of injunction on showing of compliance. Rogers v. Rasmussen, 881. INSANE PERSONS. Determination of Question of Insanity. 1. Commissioner appointed in proceedings de lunático inquirendo may issue precept before taking oath —■ oath may be filed nunc pro tunc — taking of oath only ministerial act — proceedings probably not void if jury regularly called without precept — jury may be summoned, hearing had and oath filed in county of aUeged incompetent’s residence or where property affected situated, although petition may have been presented in another county. Matter of Doyle, 733. Effect of Insanity. 2. Annulment of marriage — insanity is not ground for annulment of marriage by sane spouse. Reed v. Reed, 531. INSTRUCTIONS. See Master and Servant, 2, 5, 6; Principal and Agent, 11; Trial, 5. INSURANCE. See, also, Bailments. Pire Insurance. 1. Coverage — policy on building and extension thereto occupied as store and dwelling does not cover another building on same lot not occupied. Alterman v. Home Insurance Co., 151. 2. Construction of policy — there is no ambiguity in insurance policy purporting to insure a dwelling because of the fact that another building not occupied was situated on the same lot. Alterman v. Home Ins. Co., 151. 3. Coinsurance — parties to fire policy are not. prohibited by Laws of 1917, adding section 121, and standard fire policy thereby adopted, from agreeing that eighty per cent average or coinsurance clause may be added to standard policy. Aldrich v. Great American Insurance Co., 174. INTEREST. See, also, Banks and Banking, 2. Interest is properly chargeable on a bank assessment against testator from time assessment made. Maxwell v. Thompson, 616. ISSUES. See Trial, 2. JOINDER OF PARTIES. See Parties, 2. JOINT ADVENTURE. See, also, Accounts and Accounting, 2. What constitutes — agreement of one person to contribute time and give benefit of experience in sale of goat skins and of another to purchase skins, with provision that net profits of transaction be divided between parties, constitutes joint adventure. Franken- Karch Corporation v. Castriotis, 529. JUDGMENTS. See, also, Appeal, 15; Debtor and Creditor; Mortgages; Pleadings, 23. Entry. 1. Entry of judgment against defaulting joint debtor who was maker of note erroneous where action not severed — severance of action after judgment entered does not cure error and warrants vacation thereof on motion. Kriser v. Rodgers, 394.

INDEX. 971 JUDGMENTS — Continued. Former Judgment. 2. Judgment in prior suit for accounting between same parties is not res judicata in action for penalty prescribed by section 114 of the Banking Law for exaction of excess interest. Teplitz v. Bloomingdale, 15. Lien. 3. Deed of land executed and delivered after verdict against grantor but before judgment is valid and judgment does not become lien on land. Boyle v. Blanhenhorn, 265. JUDICIAL NOTICE. See Evidence, 2, 3. JURISDICTION. See Courts, 1, 2; Habeas Corpus, 1; Municipal Courts, 1; Ships and Shipping; Surrogate’s Court; Workmen’s Compensation Law, 44, 45. LABOR. See Landlord and Tenant, 9; Monopolies and Combinations. LABOR LAW. See, also, Ejectment, 2; Landlord and Tenant, 9. No liability attaches to owner of apartment house where he does not know that the Labor Law forbidding children to work in connection* therewith is violated. Woerz v. Rosenfeld, 19. LANDLORD AND TENANT. See, also, Injunction, 4; Municipal Courts; Summary Proceedings. In General. 1. Complaint in action to recover for services in procuring tenant, alleging that plaintiff produced tenant able, ready and willing to execute lease, good against demurrer. Harrity v. Steers, 11. Improvements on Premises. 2. Tenant is required to make changes ordered by fire department as condition to issuance of permit to manage garage where it covenanted and agreed in lease to comply with and execute lawful orders and regulations of board of health, police department and city corporation. Frank v. Bowman Automobile Co., 377. 3. In action on bond to secure performance of covenant in lease to make alterations defendant is estopped to deny that plaintiff is not entitled to recover as if owner, although only lessee under original lease — measure of damages would be cost of alterations — recovery not limited to amount deposited as general security. Kanter v. New Amsterdam Casualty Co., 756. Duties and Liabilities of Tenant as to Care of Premises. 4. Defective sidewalk — action against owner of leased building for injuries sustained by falling on sidewalk in front of building — question of fact whether condition existed prior to lease — whether lease was fictitious was question for determination of jury. Posner v. Cohn, 373. Possessory Remedies. 5. Landlord and tenant may agree as to what may constitute a breach of covenants and a breach thereof is available to the landlord in summary proceedings instituted under section 2231 of Code of Civil Procedure^— breach of covenant before plaintiff acquired property does not constitute defense to proceeding where effect thereof was not known until he was informed by board of fire underwriters — warrant of dispossession cannot be refused on ground that violations of the lease were not willful and that compensatory damages only ought to be awarded. Matter of Balducei v. Rahov, 52. 6. Notice—• fact that landlord gave twenty-one days’ notice does not vitiate the notice, even though only three days’ notice was required. Matter of Balducei v. Rahov, 52.

972 INDEX. LANDLORD AND TENANT — Continued. 7. Jurisdictional matters cannot first be raised on appeal. Matter of Balducci v. Bakov, 52. 8. Mandamus is appropriate proceeding to compel issuance of precept in summary proceedings. People ex rel. Durham Beatty Corporation v. La Fetra, 280. 9. Remedy of landlord for violation of Labor Law by tenant — summary proceedings cannot be maintained against tenant for failure to obey order of fire department respecting requirements of Labor Law, though lease contains covenant for forfeiture for failure so to do — such proceedings cannot be maintained under section 94 of the Labor Law where lease did not obligate compliance with Labor Law, but only with orders of municipal and other lawful authorities —■ ejectment proper remedy. Davis Brothers Beatty Corporation, Inc., v. Harte. 403. 10. Injunction granted to restrain summary proceedings pending suit for specific performance of an agreement to renew lease — adequate remedy could not be afforded plaintiff in summary proceedings in Municipal Court of City of New York — summary proceedings tried after denial of injunction — injunction order not issued on appeal — leave to apply for injunction if judgment in summary proceedings reversed. Loughman v. Lilliendahl, 867. LEGACIES. See Wills, 2, 3. LEGISLATURE. Parol evidence cannot be received to impeach official certification of bill by presiding official, or journals of respective houses. People ex rel. Durham Beatty Corporation v. La Fetra, 280. LIBEL. Privileged Communication. 1. Letter by defendant to its customers stating reason for discharging plaintiff is qualifiedly privileged even though statement may be partially false — proof of actual malice necessary — complaint properly dismissed where alleged libel consisted of statement as to disloyalty and unfaithfulness of employee — “ dishonest ” as used in communication may mean unfaithfulness. Browne v. Prudden-Winslow Co., 419. Pleadings. 2. In action for libel, slander cannot be pleaded as counterclaim, defense, partial defense or in mitigation. Udovichky v. Bacheff, 860. LIENS. See, also, Trusts. 1. Mechanics’ liens filed between date of contract of purchase and date for closing constitute incumbrance. Roberts v. New York Life Ins. Co., 97. 2. Mechanic’s lien — foreclosure — evidence insufficient to support judgment on theory of quantum meruit where complaint was framed on contract but plaintiff did not rely on contract on trial — plaintiff in equity case must bear same burden of proof as in any action. Hurwilz v. Calvin Realty Corporation, 416. LIMITATION OF ACTIONS. See Canals; Municipal Corporations, 8. LIQUIDATED DAMAGES. See Contracts, 6. LUNATICS. See Insane Persons. MANDAMUS. See Landlord and Tenant, 8. MARITIME LAW. See Workmen’s Compensation Law, 4. MARRIAGE. Sec Husband a.nd Wife.

INDEX. 973 MASTER AND SERVANT. See, also, Damages, 2; Pleadings, 4, 22. Duration and Termination of Contract of Employment. 1. Power of majority of directors, acting separately and not collectively does not bind corporation — acts of all directors who own all stock bind corporation though they act separately and not collectively — measure of damages for breach of executory contract compensable only and claim for money expended by plaintiffs for úse of corporation cannot properly be included. Gerard v. Empire Square Realty Co., 244. 2. Action for wrongful discharge — contract of employment contained in letter to plaintiff and written acceptance—• parol evidence inadmissible to show that contract was not to become effective as to term of employment