their determination, was error, for
which a judgment on a verdict
against defendants must be re-
versed as to both. Lewis v. Kahn,
326.

2. Where an order of arrest is va-
cated on plaintiff's own papers on
grounds purely technical, and the
papers show that no malice was
intended, the court may impose,
as a condition, that defendant
stipulate not to sue for damages
in consequence of the arrest.
Kimball v. Flagg, 490.

3. In an action against an elevat-
ed railroad company for false im-
prisonment in causing the arrest
and detention of plaintiff, who
was engaged in an altercation with
defendant's depot guard late at
night, the proceedings before the
magistrate the following morning,
when plaintiff was discharged,
are admissible in evidence. as
part of a continuous transaction;
and they are properly proved by
the court records. Shea v. Man-
hattan R. Co., 527.

FALSE REPRESENTATIONS.

See CORPORATIONS, 8.
DISCOVERY, 2, 3.

FEES.

See ARBITRATION.

FORECLOSURE.

1. In an action to foreclose a mort-
gage in which junior incum-
brancers are made parties, the
court may order the premises to
be sold in such a manner that
their rights as well as those of the
plaintiff shall, as far as possible,
be protected, although such junior
incumbrancers have not served
copies of their answers upon the
owner of the equity of redemp-
tion; and for this purpose may
order the whole property sold,
although separate parcels thereof
would satisfy the lien of plaintiff's
mortgage. Dobbs v. Niebuhr, 52.

2. The burden of questioning the
validity of the junior incum-

I.

INJUNCTION.

1. A proprietary right may exist in
an original and peculiar method
or form of preparing, wrapping,
boxing, and packing articles of
merchandise, and may be protect-
ed by injunction, at the suit of
one who invented and first em-
ployed such method or form,
against a close and intentional
imitation, likely to mislead the
public. Humphreys Homeopathic
Med. Co. v. Bell, 6.

2. Defendant had been the business
manager of a corporation whose
business was the preparation and
sale of certain medicines; but he
had had nothing to do with the
compounding or putting up of
such medicines. Held, that he
should be restrained, at the suit
of the successor of such corpora-
tion in the business, under a
similar name, from advertising
himself, in his subsequent busi-
ness operations, as late man-
ager" of the former company.
Ib.

3. An action to restrain certain offi-
cers, who were constituted the

gas commission" of New York
City, from executing a contract
for lighting the city, was brought
by a taxpayer, on the ground that
the commission, at the request of
an agent of a certain company,
which had deposited a bid for
electric lighting, permitted the
withdrawal of such bid, without
considering or passing upon it.
On a motion to continue the in-
junction, it appeared that such
company existed only on paper,
and had no plant or wires or per-
mission to place the same in the
streets of the city, and that the
bid was put in for the purpose of
securing to such company certain
concessions from the competing
companies which had been agreed
to but subsequently repudiated.
There was strong reason to sus-
pect that the company and not
the plaintiff was the real party in
interest. Held, that the court
properly refused to continue the
injunction, on the ground that the

action was collusive. Kimball v.
Hewitt, 124.

See ABATEMENT.
CORPORATIONS, 7.

INTERPLEADER.

See DISTRICT COURT, 2.

INTOXICATING LIQUORS.

See MANDAMUS.
STATUTES.

J.

JUDGMENT.

1. A judgment should not be set
aside on the ground of fraud în
procuring it, on a motion made
after the expiration of the year
limited for making such motions
on grounds of mistake, etc. (Code
Civ. Pro. § 724), or irregularity
(§ 1282), and not based on error
of fact (§ 1283). The inherent
power of the court to set aside
judgments obtained by fraud
should be exercised by action, not
on motion. Mattern v. Sage, 38.

2. The complaint in an action by
the maker of a note against the
payee alleged that the note was
given by the maker to the payee
for the special purpose of being
discounted for the maker; that
the payee had the note discounted,
received the proceeds, and refused
to pay them over to the payee and
converted the same to his own
use; and demanded judgment for
the amount of the proceeds and
interest. The payee in his an-
swer denied each of these allega-
tions, and alleged that the notes
were given to him to be applied to
an indebtedness of the maker to
the payee, and that the payee was
and always had been the owner
thereof. A verdict was found for
defendant. Held, that, it appear-
ing that both questions raised in
such action had been passed upon
by such verdict, the adjudication
was conclusive as to either of the
questions subsequently arising,
and, in an action on the note by

3. In an action for installments of
rent for the months of March and
April, the defense to which was
eviction, it appeared that the
tenant had vacated the demised
premises on March 1st, and that
judgment had been recovered
against him by the landlord for
the installment of rent for the
preceding February. Held, that
such judgment was not a bar to
the defense of eviction, as that
defense could not have been
pleaded in the former action, the
eviction not being complete until
the tenant vacated the premises.
Koehler v. Scheider, 198.

4. A judgment for defendant in an
action for rent, brought by the
assignee of the lessor against the
lessee, is not admissible in evi-
dence in an action brought by the
lessor against the lessee for the
prior rent under the same lease,
where it does not appear from the
judgment roll that the former ac-
tion was prosecuted for the bene-
fit of the assignor. Chapman v.
Frank, 282.

See APPEAL, 1, 5, 6, 10, 12, 17.
CORPORATIONS, 15.
DISTRICT COURT, 2-4.
EXECUTION.
FORECLOSURE.
REFERENCE.

JURISDICTION.

See APPEAL, 8, 10.
DISTRICT Court.

JURY.

See TRIAL, 3, 4.

L.

LANDLORD AND TENANT.

1. Under a lease of certain premises
for a term of years from a certain

May 1st, rent was to be payable
monthly in advance and posses-
sion "given on May 1st or sooner
if alterations thereto are com-
pleted." Attached to the lease
was a memorandum providing for
certain alterations on the prem-
ises, but no time was fixed for the
completion of such alterations.
They were not finished by May
1st, and on that date the lessee
tendered the first installment of
rent and demanded possession, to
which answer was made that the
alterations were not finished.
Held, in an action against the
surety on the lease to recover
such installment, that the time
fixed for possession was not im-
perative; and that the tender
was not available as a defense,
not being paid into court. Cronin
v. Epstein, 50.

2. There being no ambiguity in the
lease, parol evidence of an ar
rangement between the lessors
and lessees as to the time of com-
pleting the alterations, made
about the time of the execution
of the lease, was inadmissible. Ib.

3. By custom in this state, which
has acquired the force of law, a
lease of premises, "for the term
of one year from the first day of
May," terminates on the first day
of the following May at noon.
Marsh v. Masterson, 114.

4. The lessor in such a lease, claim-
ing that the lease expired at mid-
night on April 30th, commenced
summary proceedings against the
tenant on May 1st before noon.
Held, that the final order therein
entered in favor of the lessor
should be set aside with costs;
but that restitution should not be
awarded, it appearing that the
tenant had only a reversionary
interest after the discharge of a
receiver then in possession. Ib.

5. A few days before the termina-
tion of defendant's yearly lease of
plaintiff's premises, plaintiff, in
response to a request for informa-
tion as to the amount of rent
asked, sent a telegram stating the
amount. Held, that defendant's
continuance in occupation of the
premises after the expiration of
his term, without any reply to the

telegram, by operation of law
constituted a new contract for
another year at the rent named in
the telegram; and, therefore, evi-
dence of the acts of the parties
subsequent to such date was inad-
missible to indicate their inten-
tion, as nothing short of a new
agreement could change the con-
tract made by operation of law.
Thorp v. Philbin, 155.

6. In an action for rent against a
tenant continuing in possession
after a notice from the landlord
of an increase of rent, damages
caused by the landlord keeping up
a sign on the premises, "To Let,"
are not the subject of a counter-
claim. Ib.

7. In an action for installments of
rent for the months of March and
April, the defense to which was
eviction, it appeared that the
tenant had vacated the demised
premises on March 1st, and that
judgment had been recovered
against him by the landlord for
the installment of rent for the
preceding February. Held, that
such judgment was not a bar to
the defense of eviction, as that
defense could not have been
pleaded in the former action, the
eviction not being complete until
the tenant vacated the premises.
Koehler v. Scheider, 198.

8. Plaintiff's horse, while occupying
a stall in defendant's stable, which
stall had been let by defendant to
plaintiff from month to month,
for about two years, was injured
by the floor giving way. It ap-
peared that, a few days before,
another stall in the stable, occu-
pied by one of defendant's horses,
had given way, and that this was
known to both plaintiff and de-
fendant. Held, that as the rela-
tion of landlord and tenant existed
between the parties, and as there
was no covenant to repair, de-
fendant was not liable for the
injuries to plaintiff's horse. Lynch
V. Speed, 207.

9. A judgment for defendant in an
action for rent, brought by the
assignee of the lessor against the
lessee, is not admissible in evi-

prior rent under the same lease,
where it does not appear from the
judgment roll that the former
action was prosecuted for the
benefit of the assignor. Chapman
v. Frank, 282.

10. A tenant who hires a house, in
apparent good order, is not entitled
to quit and cancel his lease on
discovering that the plumbing is
so defective as to permit sewer
gas to permeate the building,
where there is no fraud, and the
landlord, at the time of the hiring,
had no knowledge of such defect.
Daly v. Wise, 431.

11. A contract to pay an increased
rental for the use of an apparatus,
will not be implied from its con-
tinued use, after notice of the
increased rental, where the lessee
expressly declined to accede to the
lessor's terms subsequent to the
receipt of the notice. Lamson
Consolidated Store-Service Co. v.
Weil, 498.

12. In an action upon a quantum
meruit to recover for the rent of
a device used for carrying parcels
in a store, there was evidence for
plaintiff that the usual charge for
the apparatus was from $20 to $25
per annum for each "station,"
while the evidence for defendant
was to the effect that $5 per
annum was a fair charge. Held,
that the evidence justified a find-
ing at the rate of $12 per annum.
Ib.

13. Plaintiff sold to defendant cer-
tain machinery in a building
owned by plaintiff, informing
defendant that if the machinery
remained in the building after a
certain day, defendant would be
charged rent for the premises.
Defendant did not reply thereto,
but allowed the machinery to
remain in the premises. Held,
that the law would imply a
promise to pay the rent of the
premises. Sadlier v. Riggs, 522.
See SUMMARY PROCEEDINGS.

LEX LOCI.

lessor against the lessee for the

CREDITORS, 2.