refused to deliver it to plaintiff. Held, that as defendant, which had
issued two separate receipts, one of which came into the hands of
plaintiff's assignor, might be estopped from showing the true state
of facts and might be liable to both claimants, its motion to have
the other claimant interpleaded as a party defendant will be granted
pursuant to section 103 of the General Business Law. Rosenberg v.
Viane, Inc., 215.
INTERSTATE COMMERCE.
See Negligence.
INTERSTATE COMMERCE COMMISSION.
1. Assignment of Rights of surety paying judgment—Joint
tort feasors · Executions - Subrogation. The surety on the under-
taking given by one of two joint tort feasors, on appeal from a judg-
ment against both, having paid the judgment, took an assignment
thereof from the general guardian of the infant plaintiff and issued
an execution thereon against the property of the other defendant
for the full amount of the judgment and costs. Held, that the surety
was entitled to be subrogated to plaintiff's rights as against both
defendants, and that a motion to have the judgment satisfied and
canceled of record and the execution vacated and set aside will be
denied. Rosenthal v. New York Railways Co., 210.
2. Default - Equity - When findings of fact and conclusions of
law need not be stated in decision - Title. Upon an application for
judgment upon default in an action to determine a claim to real
property it is not necessary to make a decision separately stating
findings of fact and conclusions of law; it is sufficient for the
court, in conformity with the practice in equity, to sign the judg-
ment; not even an order therefor is necessary. Where in such an
action the allegations of the complaint are admitted by failure to
answer, findings are neither necessary nor proper, though requested
on the ground that a certain title insurance company will not insure
the title unless the judgment is based upon findings. Tyler v. Jahn,
425.
See Foreclosure; Certiorari; Justices' Courts; Public Serv-
ice Commission; Statutes; Surrogates' Courts.
Jurisdiction of - City of Utica What may be regarded as a
"town"
Code Civ. Pro. § 2869.- For the purposes of section
2869 of the Code of Civil Procedure the city of Utica may be
regarded as a "town." The Justice's Court of the city of Utica
has jurisdiction of an action where both of the parties are residents
of an adjoining town where the summons was served. Kantor v.
Kwiecenski, 163.
When suspension of a member of a trades union without notice
is invalid Associations · Equity. A provision of the constitu-
tion of a trades union which authorizes the suspension of a member
without notice of the charges against him and an opportunity to
be heard in his defense is invalid, and a court of equity will restore
to membership one so expelled, but without prejudice to the right
of the local union to properly try the charges. Gilmore v. Palmer,
552.
See Contempt; Contracts; Injunctions.
LANDLORD AND TENANT.
See Lease; Summary Proceedings.
1. When authority of agent must be in writing.— Where in an
action for damages caused by not getting possession under a written
lease for five years it appears that the lease was executed by
defendants' agent without written authority and that there was
no ratification in writing of the act of the agent, a motion for a
new trial made after the dismissal of the complaint will be denied.
Siemers v. Heuchel, 323.
2. When guaranty covers renewal term - Landlord and tenant.—
Where a tenant, having an option to renew his lease for another
term of five years, holds over and pays the rent for several months
after the expiration of the original term, a contract of guaranty
for his faithful performance of the lease covers the second term.
Houlihan v. S. Bolton's Sons, 325.
See Landlord and Tenant; Statute of Frauds; Summary Pro-
ceedings.
When defendant not liable for publishing When motion to
vacate an order of arrest granted - Slander.- Where in an action
for a newspaper libel brought by a resident of the city of New
York having large property interests in the republic of Costa Rica
the only fact in dispute is whether the defendant, the expelled presi-
dent of said republic, had requested the publication of a letter
written by him to the chairman of the committee on foreign affairs
of the United States senate, a portion of which was the libel com-
plained of, the letter in full being set forth as a portion of an
entire article printed in the New York Herald, both the defendant
and the newspaper reporter who interviewed him swear that he did
not request such publication, it must be taken, for the purposes
of a motion to vacate an order for defendant's arrest, that he did
not. Where there is nothing to show that defendant procured the
alleged libelous matter to be published or did anything which
induced its publication other than the mere act of furnishing
information to one known to be a reporter, the remedy of the
plaintiff is against those who, as their own independent act, printed
and published the alleged libel, and defendant's motion to vacate
the order of arrest will be granted. Valentine v. Gonzalez, 175.
LICENSES.
See Constitutional Law.
§ 9(4, 7). Storch & Co. v. Marginal Realty Corp., 669.
Labor and materials furnished after abandonment of contract
Priority. Notice of lien must state value of the labor performed
or the materials furnished When description of property insuf-
ficient Lien Law, § 9(4, 7). Storch & Co. v. Marginal Realty
Corp., 669.
on counterclaim. Lewis v. New York Municipal Railway Corp., 685.
LIFE ESTATES.
See Transfer Tax.
LIQUOR TAX LAW.
§§ 8(1, 2, 3), 30 (P). People v. Willi, 79.
See Constitutional Law.
When lis pendens will be cancelled by reason of defective verifi-
cation of complaint — Foreclosure Pleading Code Civ. Pro.
§ 1670. Whether or not a complaint is verified so as to entitle
plaintiff to file a lis pendens under section 1670 of the Code of
Civil Procedure depends on whether or not the verification com-
plies with the requirements of an affidavit of verification under
the Code of Civil Procedure. It is not enough that the plaintiff
intended to comply with the same. Following Moran v. Helf, 52
App. Div. 481, and Morris v. Fowler, 99 id. 245, held, that an
affidavit of verification, otherwise sufficient, is rendered fatally
defective by the addition of an averment which shows that the
affiant relies upon hearsay information as to material matters
alleged on knowledge. Such additional part of the affidavit cannot
be disregarded as surplusage. Held, that the application to cancel
the original lis pendens and the amended lis pendens must be
granted, even though the nature of the action is such as to permit
a lis pendens to be filed. The court cannot in the exercise of dis-
cretion refuse to grant the application. Bowery Savings Bank v.
Ward, 540.
When alternative writ granted. Where a petition for a per-
emptory writ of mandamus prays for "such other and further
relief," the court in its discretion, if the facts justify, may grant
an alternative writ. People ex rel. Segal v. Englander, 490.
When a broken promise will not justify annulment of — Fraud.-
Fraud that will justify the annulment of a marriage must be a
false representation expressly or impliedly made of an existing
fact that is a material consideration to the wronged party. A
man's refusal to keep his promise to a woman that after the civil
marriage he would enter into a religious ceremony with her, is not
fraud in a legal sense and will not support an action for the annul-
ment of their marriage, though it was never consummated. Schach-
ter v. Schachter, 152.
MARSHALLING AND DISTRIBUTING ASSETS.
MEMBERSHIP CORPORATIONS LAW.
11. Fordham v. Poor, 187.
See Deeds; Foreclosure; Husband and Wife; Tenants in Com-
mon; Transfer Tax.
When motion directing clerk of city of New York to amend a
marriage license may not be granted· Statutes.- A motion direct-
ing the clerk of the city of New York to amend a marriage license
so that it will correctly state the name of the applicant, may not
be granted in the absence of statutory authority. Matter of Bjune,
247.
See Depositions; Interpleader.
MUNICIPAL COURT CODE.
§ 129 (3). Dancik v. Rappold, 354.
MUNICIPAL COURT OF CITY OF NEW YORK.
When reply cannot be ordered - Pleading.- A justice of the
Municipal Court of the city of New York has no power to make
an order requiring a reply to be filed to defenses pleaded in an
answer. Kern v. Caledonian Insurance Co., 173.
See Actions; Arbitrations.
Filing of declaration to become a citizen· Who may be consid-
ered residents of the United States Canal Zone - Non-residents
- Aliens. An alien came to this country in May, 1905, and
remained here until May, 1907, when he entered the employ of the
government of the United States in the Canal Zone, and while
here in 1908, on vacation allowed to him, he filed a declaration of
his intention to become a citizen. Upon finding on his final return
from the Canal Zone in May, 1916, that his time to apply for
second papers had expired, he, on the seventeenth of that month,
filed his declaration to become a citizen and on September 4, 1918,
filed his petition for second papers. Upon objection to his admis-
sion to citizenship on the ground of non-residence in the United
States for five years, held, that subdivision 7 of the Act of May
NATURALIZATION — Continued.
9, 1918, which permits residence in the Canal Zone to be considered
as actual residence in the United States in certain cases and
provides that in those cases only residence in the Canal Zone may
be considered residence in the United States, did not apply and
that an order adjourning the application to a day certain should be
entered on notice to the chief naturalization examiner and directing
the clerk to notify the applicant to then appear with his witnesses.
Matter of Rowland, 65.
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- Carriers
1. Action for damages for personal injuries — Trial
Evidence Interstate commerce When motion for a new trial
denied Verdict - Boiler Inspection Act.- In an action to recover
damages for the killing of plaintiff's intestate, a head brakeman
on defendant's railroad, while at work on a locomotive which had
been duly inspected by the inspectors of the interstate commerce
commission, it appeared that at the time of the accident there was
on the left side of the tank about two feet from the grab handle
used in connection with the steps between the tender and the loco-
motive a certain hook, the construction and maintenance of which
plaintiff claimed was in itself dangerous in that it was liable to
come in contact with the clothing of defendant's employees, includ-
ing the deceased, in passing up and down said steps while in the
discharge of their duty, thereby rendering them liable to accidents
and injury by reason of the close proximity of the hook. Plaintiff
also claimed that the hook was the proximate cause of the death
of her intestate in that in some manner his clothing came in contact
with the hook by means whereof he was thrown under the wheels
of the cars and his death resulted. One of the defendant's expert
witnesses admitted that the hook could be guarded when not in use
but that no thought or attention had been given to it. Held, that
whether there had been a violation of the Boiler Inspection Act
and the amendments thereto which require common carriers engaged
in interstate commerce to equip their locomotives with safe and
suitable boilers and appurtenances thereto was a question for the
jury. Held, also, that whether the hook was the proximate cause
of the death of plaintiff's intestate was a question for the jury
though how or in what manner he met his death was more or
less a matter of inference. The jury was instructed that they could
not guess or surmise or speculate that the accident might or might
not have happened in a certain way, but that a finding in that
respect must be based upon a fair preponderance of evidence, and
the charge of the court with respect to the degree of care the
defendant was required to exercise in furnishing the decedent with
a safe and suitable locomotive and not causing it to be properly
inspected for defects, if any, was more favorable to the defendant
than it had a right to expect. Held, that its motion for a new trial
after a verdict in favor of plaintiff will be denied. Ford v. McAdoo,
233.
2. When motion to set aside verdict as excessive denied
Damages Code Civ. Pro. § 1902. The damages recoverable in
an administrator's action under section 1902 of the Code of Civil
Procedure are exclusively for the benefit of those persons con-
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