187(1) (N.Y.Mun.Ct.) In an action for rent it is not a defense under Real Property Law, § 227, providing for release in case of untenantable condition of premises, that the premises were vacated by direction of a municipal depart ment because of noncompliance with its orders. where the lease does not obligate the landlord to comply with such orders.-Younger v. Campbell, 158 N. Y. S. 649.

name "trailed" defendant and her daughter to
a summer resort, and that "when he had left a
diamond pin she had was gone," is actionable
per se, with allegations, by way of innuendo,
that it meant to accuse plaintiff of larceny.-
Davis v. Kelly, 158 N. Y. S. 145.

II. PRIVILEGED COMMUNICATIONS,
AND MALICE THEREIN.

190(2) (N.Y.Sup.) In an action for rent, ev-36 (N.Y.Sup.) Publication by newspaper reidence that plaintiff, with defendant's consent, lating to patent medicine and its manufacturer stored an automobile body on the premises, the is not privileged.-Patten v. Harper's Weekly defendant furnishing a key when requested, Corp., 158 N. Y. S. 70. shows none of the elements of an actual partial eviction.-Hirschman v. Kuechle, 158 N. Y. S.

734.

227 (N.Y.CityCt.) Where landlord, under provision of lease, relets for benefit of tenant, action against tenant for deficiency, begun before termination of term, is premature.Kamioner v. Balkind, 158 N. Y. S. 310.

231(6) (N.Y.Sup.) Evidence in an action for rent of premises held to require judgment for plaintiff. Freedman v. Putnam, 158 N. Y. S. 691.

233(3) (N.Y.Sup.) It is error to dismiss, after proof thereof, a counterclaim for use of a portion of the premises occupied by the landlord.-Hirschman v. Kuechle, 158 N. Y. S. 734.

LEASE.

See Associations, 19; Evidence. 441:
Frauds, Statute of, 116; Landlord and
Tenant; Sales, 456; Taxation, 734.
LEGACIES.

See Executors and Administrators, 3.

LETTERS.

See Evidence, 271.

LIBEL AND SLANDER.

I. WORDS AND ACTS ACTIONABLE,
AND LIABILITY THEREFOR.
7(13) (N.Y.Sup.) A newspaper interview,
stating that plaintiff had under an assumed

41 (N.Y.Sup.) Publication by newspaper, relating to patent medicine and its manufactur er, is not qualifiedly privileged.-Patten v. Harper's Weekly Corp., 158 N. Y. S. 70.

48(1) (N.Y.Sup.) Right of "fair comment" is limited to facts; mere belief in truth of pubWeekly Corp., 158 N. Y. S. 70. lication being insufficient.-Patten v. Harper's

charges that plaintiff is a swindler, a fraud, and In publication exposing worthless medicine, a health poisoner are not comment.-Id.

IV. ACTIONS.

(B) Parties, Preliminary Proceedings, and Pleading.

82 (N.Y.Sup.) That a libelous publication is contained in a novel does not exempt the libeler from liability, as the party libeled, by appropriate allegations, may connect himself with the libel in which he is named by a fictitious name, named not at all, or only indirectly referred to.-Corrigan v. Bobbs-Merrill Co., 158 N. Y. S. 85.

89(1) (N.Y.Sup.) Where special damages are not alleged, no damages are recoverable, unless the words published are libelous per se.-Davis v. Kelly, 158 N. Y. S. 145.

Where no special damages are claimed, the publication of words libelous per se must be alleged.-Id.

91 (N.Y.Sup.) Denial of innuendoes is surplusage, where publication of libel is denied.Patten v. Harper's Weekly Corp., 158 N. Y.

S. 70.

94 (1) (N.Y.Sup.) Plea of justification of libel should be as broad as charge and the very charge attempted to be justified.-Patten v. Harper's Weekly Corp., 158 N. Y. S. 70.

94 (4) (N.Y.Sup.) Denial of plaintiff's good repute is no defense to action for libel.-Patten v. Harper's Weekly Corp., 158 N. Y. S. 70.

Where libel charged fraud and deceit in manufacture and sale of worthless medicine, plea of justification must allege that plaintiff knew his product was worthless.-Id.

Plea of justification of libel, accusing plaintiff of responsibility for sale of patent medicine which merely alleges he was chief owner of medicine company, was insufficient.-Id.

Where libel complained of is that a patent medicine works inevitably to hurt of victim, plea that it is without therapeutic value, except in special cases, is insufficient.-Id.

100(1) (N.Y.Sup.) Unnecessary innuendoes are not put in issue by denial.-Patten v. Harper's Weekly Corp., 158 N. Y. S. 70.

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

Libel and Slander

158 NEW YORK SUPPLEMENT

(E) Trial, Judgment, and Review. 123(2) (N.Y.Sup.) Whether defendant used the words published, and whether they would be understood by readers of average intelligence in the libelous sense charged, is for the jury. -Davis v. Kelly, 158 N. Y. S. 145.

LICENSES.

See Carriers, 8; Injunction, toxicating Liquors; Patents, ters and Shows.

77, 85; In218; Thea

LIENS.

V. PLEADING, EVIDENCE, TRIAL,
AND REVIEW.

182(2) (N.Y.Sup.) A statute of limitations must be pleaded.-Cardwell v. Clark, 158 N. Y. S. 300.

184 (N.Y.Sup.) Where judgment was vacated more than 10 years after entry on motion of plaintiff, application of defendant to amend to set up statute of limitations should be granted, with permission to plaintiff to give new defense.-People v. further evidence on Raquette Falls Land Co., 158 N. Y. S. 467. LIQUOR SELLING.

See Attorney and Client, 176; Bankruptcy, See Intoxicating Liquors. 192; Courts, 188; Mechanics' Liens.

LIFE ESTATES.

See Dower.

LIS PENDENS.

See Action, 69.

LIVERY STABLE AND GARAGE
KEEPERS.

LIMITATION OF ACTIONS.

See Action, mm 50; Adverse Possession; See Negligence, 93.
Death, 38; Insurance, 812; Judg-
ment, 910; Taxation, 805.

I. STATUTES OF LIMITATION. (B) Limitations Applicable to Particular

Actions.

LONGSHOREMEN.

See Trade Unions, 7.

LUNATICS.

21(1) (N.Y.Sup.) Where a bank pays a de- See Insane Persons.

positor's money on a forged order, it breaks its contract with him, and a cause of action for the breach arises, which will be outlawed six

MAGISTRATES' COURTS.

years after the payment, under Code Civ. Proc. See Municipal Corporations, 636.
§ 382,
Prince Mfg. Co., 158 N. Y. S. 346.

as to limitations.-Parker-Smith

V.

MALICIOUS PROSECUTION.

V. ACTIONS.

36(1) (N.Y.Sup.) In a suit by a minority stockholder to enjoin a railroad consolidation, in which leases of railroads claimed to be paral-56 (N.Y.Sup.) In action for false imprisonlel and competing are attacked, the undisturbed possession of the properties under the leases for 41 and 28 years, respectively, held to have ripened into a right that under statutes of limitation could not be challenged by plaintiff. Venner v. New York Cent. R. Co., 158 N. Y.

ment and malicious prosecution, where the in-
formation before the magistrate and the war-
rant of arrest were put in evidence, also that
plaintiff was held for trial at the Court of
Special Sessions, the burden was on plaintiff
to show want of probable cause and malice.—
Neuowich v. Cohn, 158 N. Y. S. 344.
suit for malicious
71(2) (N.Y.Sup.) In
prosecution, question of want of probable cause
held for the jury.-Neuowich v. Cohn, 158 N.
Y. S. 344.

71(3) (N.Y.Sup.) In suit for malicious prosecution, question of malice held for the jury.Neuowich v. Cohn, 158 N. Y. S. 344.

MANDAMUS.

See Public Service Commissions, 21.
I. NATURE AND GROUNDS IN GEN-
ERAL.

23(1) (N.Y.Sup.) County officers may bring mandamus to compel the performance of duties over which they have supervision, or the performance of which is necessary to the perform ance of their own duties.-People ex rel. Schneid er v. Prendergast, 158 N. Y. S. 615.

Where the comptroller refused to certify and audit the pay roll of clerks in a county clerk's office, the county clerk held not entitled to mandamus.-Id.

impose sentence on accused required by law, per- See Brokers, 61; Vendor and Purchaser, emptory writ of mandamus, requiring imposition of such sentence, may be awarded by Supreme Court, directing imposition of sentence.-Cropsey v. Tiernan, 158 N. Y. S. 948.

(B) Acts and Proceedings of Public Off-~|| (N.Y.Sup.) Under the terms of Domestic cers and Boards and Municipalities. Relations Law, § 6, a marriage contracted by a person whose spouse by a prior existing marriage is living is void.-Barker v. Barker, 158 N. Y. S. 413.

100 (N.Y.Sup.) Mandamus is proper remedy to enforce provisions of a law requiring transfer of a fund from one public officer to an-60(7) (N.Y.Sup.) In action to annul marother, where there is no dispute as to the facts. -In re Bristol, 158 N. Y. S. 503.

(B) Statutory Regulation.

162. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of num

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
158 N.Y.S.-75

ber sections 346-420, at the end of this topic, I whom a servant worked to guard an elevator where the matter in this and future index di- shaft or hoist in accordance with the statutegests will be found. Rinando v. D. C. Weeks & Son, 158 N. Y. S. 365.

(C) Termination and Discharge. 35 (N.Y.Sup.) Where defendant hired plaintiff for one year, and later discharged him before the term was completed, plaintiff could not recover any sum due thereafter as wages, but his remedy was by action for damages for breach of contract.-Saunders v. Stern Bros.,

158 N. Y. S. 878.

II. SERVICES AND COMPENSATION. (B) Wages and Other Remuneration.

73(4) (N.Y.Sup.) A contract to act as a salesman for a hat manufacturer held an entire one, so that, where plaintiff breached his contract by quitting employment during the middle of the season, there could be no recovery of commissions earned up to that time.-Goodkind v. Steinberg Bros. & Kripitzer, 158 N. Y.

S. 172.

124(1) (N.Y.) The master's common-law duty is to provide a reasonably safe place for work, including a reasonable inspection of the place and appliances for work.-Mautsewich_v. United States Gypsum Co., 112 N. E. 471. 217 N. Y. 593.

124(6) (N.Y.) If a defective and dangerous condition of a place of work or of an appliance could have been discovered by a reasonable inspection, an inadequate and insufficient inspeetion, failing to discover such defect or danger, will not relieve an employer from liability aris ing therefrom.-Mautsewich v. United States Gypsum Co., 112 N. E. 471, 217 N. Y. 593.

(C) Methods of Work, Rules, and Orders.

137(4) (N.Y.Sup.) Where express train came into a station substantially behind its 80(4) (N.Y.Sup.) In suit on a contract of schedule, the engineer should have signaled the employment, set out by plaintiff in his plead- approach to warn a freight conductor having ing, which provided that the extra payment to cross the express track to register his arsued for should be made on a certain contin- rival.—McAuliffe v. New York Cent. & H. R. K. gency, complaint, containing no allegation of Co., 158 N. Y. S. 922. happening of contingency or of default by de-146 (N.Y.) Under Labor Law, §§ 119, 120, fendant in regard thereto, held insufficient.— Ainsworth v. Acheson Harden Co., 158 N. Y. S. 630.

III. MASTER'S LIABILITY FOR IN.

JURIES TO SERVANT.

(A) Nature and Extent in General. 87 (N.Y.) Railroad Law. § 64, charging company with knowledge of defects and making defects prima facie evidence of negligence, held to be given a construction liberal and commensurate with its purpose.-Kent v. Erie R. Co., 111 N. E. 1071, 217 N. Y. 349.

872. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of number sections 346-420, at the end of this topic, where the matter in this and future index digests will be found.

97(2) (N.Y.Sup.) An employer is not liable for injuries to an employé resulting from an unauthorized act of another employé, the doing of which act the master could not have anticipated.-Ross v. Rodgers & Hagerty, 158 N. Y.

S. 338.

(B) Tools, Machinery, Appliances, and Places for Work.

103(1) (N.Y.) Where a duty of inspection rests upon an employer, it cannot be delegated! so as to relieve him from the consequences of a failure to inspect or of an inadequate inspection.-Mautsewich v. United States Gypsum Co., 112 N. E. 471, 217 N. Y. 593.

~109 (N.Y.) A master is bound to furnish in strumentalities reasonably safe and suitable for the authorized use to be made of them by a servant, which duty relates to a team of horses, as well as to the harness and truck and the appliances connected therewith.-Miller v. Blood, 112 N. E. 383, 217 N. Y. 517.

121(7) (N.Y.Sup.) It is the duty both of the general contractor and of the subcontractor for

as amended by Laws 1913, c. 145, §§ 10, 11, rules prescribed by the Commission of Labor supplementary to the common-law rules to insure the safety of employés in mines, etc., are ordinarily compulsory, and it is the duty of the employer. not only to adopt such rules, but to enforce them.-Mautsewich v. United States Gypsum Co., 112 N. E. 471, 217 N. Y. 593.

(E) Fellow Servants.

182(1) (N.Y.) Under the provisions of Labor Law, $ 200, as amended by Laws 1910, e 352, as it existed in 1912, an employer is liable for injuries to an employé resulting from negligence of employer's superintendent not occur ring in the exercise of superintendence but in the performance of such an act as would naturally be performed by an ordinary fellow serv ant.-Pelow v. Oswego Const. Co., 112 N. E. 379, 217 N. Y. 506.

182(1) (N.Y.Sup.) Under Labor Law, § 200, subd. 2, as amended by Laws 1910, c. 352, fellow servant defense is not available where injuries to employé are caused by negligence of one intrusted with superintendence or with anthority to direct employé, though negligence was in detail of work.-O'Connor v. James Stewart & Co., 158 N. Y. S. 485.

In Labor Law, § 200, subd. 2, as amended by Laws 1910, c. 352, "superintendence" means all superintendence, and a detail of superintendence is as much a part of superintendence as a principal act.-Id.

185(2) (N.Y.Sup.) One is not liable for injury to his employé by the act of an officions fellow employé in suddenly dumping a gravel car so that the contents fall on him, where the act was unauthorized.-Ross v. Rodgers & Hagerty, 158 N. Y. S. 33S.

1989) (N.Y.) A brakeman performing a mere detail of a switching operation by conver ing the signals to the engineer was a fellow

servant. Kinney v. New York Cent. & H. R. ~~~265(14) (N.Y.Sup.) Labor Law, § 202a,
R. Co., 111 N. E. 1048, 217 N. Y. 325.

(F) Risks Assumed by Servant.
204(1) (N.Y.Sup.) Under the direct provi-
sion of Labor Law, § 202, an employé no longer
assumes the risk of injury from violation of a
statutory law by the master.-Rinando v. D. C.
Weeks & Son, 158 N. Y. S. 365.

casting the burden of proof of plaintiff's con-
tributory negligence upon the defendant in an
action for personal injuries by a servant, is ap-
plicable to all actions for personal injuries on
the ground of negligence by employé against em-
ployer, whether brought under the employers'
liability provisions of the Labor Law or not.-
O'Neil v. Lehigh Valley R. Co., 158 N. Y. S.
530.

while in course of his employment, in driving
team of horses hitched to a truck owned and
operated by defendant, by reason of the conduct
of the team, evidence held to warrant jury's
finding of defendant's negligence.-Miller v.
Blood, 112 N. E. 383, 217 N. Y. 517.

(G) Contributory Negligence of Servant.278(1) (N.Y.) In servant's action for injury
233(2) (N.Y.Sup.) Where the defendant mas-
ter furnished his servant a safe pathway, but
the servant was injured in attempting to climb
over iron beams, the servant could not recover.
-Lyles v. Terry & Tench Co., 158 N. Y. S. 748.
236(11) (N.Y.Sup.) Where the deceased, in
the employ of defendant, entered an elevator 278(16) (N.Y.) In a driller's action for per-
well, knowing of its use, and without making sonal injury resulting from an explosion, evi-
any provision for protection against the de- dence held to justify a conclusion that the mas-
scending elevator, he was negligent.-Kolacki v. ter was negligent in its inspection of the mine
American Sugar Refining Co., 158 N. Y. S. 559. after blasting, and in directing the plaintiff to
238(3) N.Y.Sup.) Farmer, who hired him- work in an unsafe place.-Mautsewich v. Unit-
self to aid truckman in moving piano from ed States Gypsum Co., 112 N. E. 471, 217 N. Y.
593.
wagon without help of planks and ropes and,
was injured, was guilty of contributory negli-285(5) (N.Y.Sup.) Whether the failure of a
gence.-Brown v. Munn Piano Co., 158 N. Y.
S. 1026.

(H) Actions.

master to guard an elevator shaft as required
by statute was the proximate cause of the
death of a servant, struck by a descending car
and killed, held, under the evidence, for the
jury.-Rinando v. D. C. Weeks & Son, 158 N.
Y. S. 365.

25034. Owing to the great increase of mat-
ter heretofore classified to this section, we have
made a new subdivision, consisting of num-286(13) (N.Y.) Under Railroad Law, § 64,
ber sections 346-420, at the end of this topic, evidence in brakeman's action for injuries as
where the matter in this and future index di- to handhold coming loose held to make ques-
gests will be found.
tion of fact as to company's negligence.-Kent

252 (N.Y.Sup.) A notice of injury under the
Employers' Liability Act, stating that a beam
fell on plaintiff's foot, will support an action,
the complaint in which alleged that the foreman
let go of the lever on a truck, lifting plaintiff in
the air, causing him to lose his hold, to fall,
and to be injured by the beam, which fell upon
him.-Chiappise v. Frederick L. Cranford, Inc.,
158 N. Y. S. 761.

264(7) (N.Y.Sup.) Under complaint, bill of
particulars, and notice of claim in servant's ac-
tion for injury, proof of negligence on the part
of defendant's superintendent held improperly
received, because outside the issues made.-Mul-
len v. Luis C. Frees Const. Co., 158 N. Y. S.
862.

264(9) (N.Y.Sup.) Under Labor Law, § 202,
and Code Civ. Proc. § 841b, the contributory
negligence of a servant, plaintiff's intestate,
must be pleaded and proved by defendant mas-
ter.-Rinando v. D. Ĉ. Weeks & Son, 158 N.
Y. S. 365.

v. Erie R. Co., 111 N. E. 1071, 217 N. Y. 349.

286(31) (N.Y.Sup.) In action against rail-
road for injuries to conductor, struck by express
running behind schedule, while crossing track to
register his own arrival, whether reasonable
warning from engineer of express was required
was question for jury.-McAuliffe v. New York
Cent. & H. R. R. Co., 158 N. Y. S. 922.

289(17) (N.Y.) Evidence as to carpenter's
contributory negligence in stepping from a safe
wall to top of doorframe, which broke and in-
jured him, held not to warrant nonsuit at close
of his testimony, but to present a question for
the jury.-Bidwell v. Cummings, 112 N. E. 424,
217 N. Y. 542.

289(19) (N.Y.Sup.) It cannot be held, as
matter of law, that a freight conductor must
distinguish a local from an express train, where
he passes at ordinary full speed, to be entitled
to rely on belief that the express, in fact be-
hind schedule, has passed him, when he starts
to cross express track to register at station.-
McAuliffe v. New York Cent. & H. R. R. Co.,
158 N. Y. S. 922.

264(10) (N.Y.Sup.) In an action for the
death of a servant, killed in an elevator shaft,
the variance between the pleading and proof
held immaterial.-Rinando v. D. Č. Weeks &289(30) (N.Y.) In action under Employers'
Son, 158 N. Y. S. 365.

265(6) (N.Y.) Under Railroad Law, § 64,
defect in railway car held not conclusive evi-
dence against company, but presumption should
be taken with other proof, and, when defect
could have been discovered by reasonable care,
the company is liable.-Kent v. Erie R. Co.,
111 N. E. 1071, 217 N. Y. 349.

Liability Act for injuries to a locomotive en-
gineer, held that whether a green light con-
tinued without change before plaintiff passed
a switch was for the jury.-Kinney v. New
York Cent. & H. R. R. Co., 111 N. E. 1048,
217 N. Y. 325.

Evidence in an action under the Employers'
Liability Act for injury to a locomotive en-

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