JOINT DEBTORS.

See JUDGMENT, 1–3.

JUDGMENT.

1. In an action upon an alleged joint contract, a recovery may be had against one of the defendants if his individual liability be established. Owen v. Conner (City Ct. N. Y.), 144.

2. Defendants' testator, with three other persons, all of them constituting a partnership firm, gave plaintiff a note for $30,737.50, and thereafter the three other makers confessed judgment thereon in plaintiff's favor. After the firm was dissolved two of the former made a composition with plaintiff, and he gave them a release, which stated that it was made pursuant to 1942 of the Code, and to have the effect by that section provided. The third partner was insolvent, and plaintiff's claim was presented to defendants, who as executors of the deceased partner disputed and rejected it. Held, that the Code has so far abrogated the rule of the common law that the judgment confessed by three of the partners is no bar to this action against the executors of the deceased partner. Harbeck v. Pupin et al. (Ct. App.), 220.

3. The fact that there was no other partnership debt for the instrument to operate upon, and the reference in the papers to the very section of the statute which authorized the compromise, showed that the plaintiff intended to, and in fact did, release the two partners from further liability, and he was excused from proceeding against them before resorting to an action in equity to reach the assets of the deceased partner. Id.

4. When a person is known equally well by two names, he may be sued by either name, or both, and a judgment recovered against him in either name is valid. Isaacs v. Mintz (City Ct. N. Y.), 423.

5. On the same day the assignment was executed judgments were confessed to the wife of one of the partners and to her relatives. In two of them were included items for alleged loans, which, in fact, had not gone into the possession or to the use of the firm, but had been credited to the person in whose favor the judgment was confessed, and immediately charged to a corporation to whom the loan was actually made. Held, that this did not make it a debt of the firm; that the transactions were, in effect, a transfer of so much of the firm's property to the wife and her relatives to withdraw it from the creditors, and that the judgments were fraudulent and void and could not be protected to the extent that they included valid claims. Illinois Watch Co. et al. v. Payne et al. (Sup. Ct.), 967.

6. A party in whose favor a judgment has been fraudulently confessed is not an innocent purchaser within the provisions of 3 R. S., 6th ed., 145, § 1. Id.

7. The other judgment was supported by the creditor's account on the books of the firm, did not exceed one-third of the estate, and upon the proofs was not connected with the other judgments. Held, that such judgment could not be held fraudulent. Id.

8. Application to satisfy a judgment recovered upon undertakings was made by one of the sureties on the ground that it had been paid by C., who was primarily liable. This was denied by C., and by the other surety, who swore that he purchased it for the accommodation of C., to secure equality of liability between himself and the other surety. Held, that the application was properly denied. Barker v. Crawford (Sup. Ct.), 1000. See BANKRUPTCY, 5, 6; CORPORATIONS, 13, 14.

JURISDICTION.

1. The city court of New York has jurisdiction of an action against a foreign insurance company where the summons and complaint is served upon the superintendent of insurance at his office in Albany. People ex rel. Firemen's Ins. Co. v. Justices of City Ct. N. Y. (City Ct. N. Y.), 147.

2. Unless special reasons therefor are shown to ex'st, the courts of this state will not retain jurisdiction of and determine actions between parties residing in another state for personal injuries received in that state. Ferguson v. Neilson (Sup. Ct.), 814.

3. This action was brought to recover for undue discriminations in the transportation of freight. The complaint alleged that these discriminations were under and in violation of a statute of Pennsylvania, which made them unlawful and made the carrier liable to the party injured for damages treble the injury suffered, and demanded treble damages. Held, that such statute was a penal one, and that as the action was based on such statute and brought to recover the penalty created thereby, the courts of this state had no jurisdiction thereof. Langdon et al. v. Ñ. Y., L. E. & W. R. R. Co. (Sup. Ct.), 907.

4. Since chap. 441 of the Laws of 1889, the city court of New York has had jurisdiction of actions against executors and administrators. Matter of Knoop (Sur. Ct.), 984.

See CRIMINAL LAW, 1, 2; MORTGAGE, 1; Town Bonds, 1

JURY.

Where a juror states that he has formed an opinion, but don't know as he has one now, that what he has heard has created an impression on his mind which he still has, that it would require evidence to remove, but on cross-examination says: I think I could sit and try this case fairly and impartially, and render an impartial verdict from the evidence without being biased by my previously formed opinion, but it would take evidence to remove the opinion formed, it presents a question of fact which the judge is empowered to hear and determine. Young v. Johnston (Ct. App.), 486.

See JUSTICES' COURT, 1.

JUSTICES' COURT.

1. Where the justices' court has jurisdiction of the subject-matter and the parties, and the case proceeds to trial and judgment without objection, a failure to draw the jury according to the provisions of chap. 505, Laws 1889, must be deemed an irregularity only, which is waived by a failure to object thereto. Bergman v. Wolff (Supr. Ct. Buff.), 499.

2. Chap. 505, Laws 1889, does not apply to the municipal court of Buffalo. Id.

3. In an action for conversion in justices' court the answer was a denial, but it was afterwards amended by setting up matters in justification. The plaintiff gave evidence tending to show a conversion, but defendant's evidence in answer thereto was excluded on the ground that the amended answer did not contain a specific denial. Held, error; that pleadings in justices' courts are to be liberally construed; that the amended portion of the answer was intended to be in addition to the denial, and that evidence as to all matters constituting a defense should have been admitted. Van Curen v. Switzer (Sup. Ct.), 733.

4. A demurrer on the ground of misjoinder of parties is not allowed in justices' court. Lord et al. v. Lord (Sup. Ct.), 752.

5. The defendant's remedy in such case is by motion to nonsuit, but only as to the party improperly joined as plaintiff. Id.

See SUPPLEMENTARY PROCEEDINGS, 4.

LARCENY.

1. Defendant was seen to thrust his hand into the pocket of a woman and to withdraw it therefrom, empty. There was no proof that there was any property in the pocket which could be the subject of larceny. Held, that the evidence was sufficient to authorize the jury to find the accused guilty of an attempt to commit the crime of grand larceny in the second degree. People v. Moran (Ct. App.), 397.

2. To constitute the crime charged, there must be a person from whom the property may be taken; an intent to take it against the will of the owner; and some act performed tending to accomplish it, and when these things concur the crime has been committed, whether property could have been stolen or not. Id.

3. Section 1447 of the consolidation act was repealed by the subsequent adoption of the Penal Code, as being inconsistent therewith. Id.

LEASE.

1. It is the duty of the court to construe the provisions of a lease in the light of the surrounding circumstances under which it was executed; and where a house was let furnished "substantially as it now is, but more particularly described in a certain inventory," which by the terms of the lease was to accompany it, and form a part of it, and which was in the possession of the prior tenant, and the lessee knew that such tenant owned some of the furniture, the amount of which he could have ascertained, the question as to whether there was a breach of contract on the part of the landlord is one for the jury. Edwards v. McLean (Ct. App.), 464.

2. In the absence of an express covenant, a lessor cannot be understood to undertake that the premises embraced in the lease will remain free from infectious diseases during the term; and where defendant on the 28th of March hired a furnished house for four months from the 1st of June, and one of the children of the tenant in possession was stricken with scarlet fever, and he remained until May 224, this will not avoid the lease, and release the defendant from his obligation to pay rent. Id.

3. The lease to defendant of part of a building contained a covenant that he should observe and keep all rules and regulations of the gas and water companies. It contained no covenant by the lessor that water should be supplied or that she would do anything in connection therewith. Defendant having refused to pay a bill for water unless the other tenant paid his share, the water supply was cut off and the city compelled defendant to put in separate connections before it would again supply water. Held, that these facts constituted no defense to an action for rent, and that he could not counterclaim the amount of the water bill or that paid for putting in the connections. Reynolds v. Meldrum (Supr. Ct. Buff.), 664.

4. If a tenant would avail of a defense of eviction or breach of covenant of quiet enjoyment he must have abandoned the premises. Id.

5. Plaintiff on September 1, 1886, hired certain premises from defendant for three years and eight months for $6,000 per year, payable monthly, and agreed to deposit $1,500 as security, the same to be applied as payment of rent on the last three months, provided the lease was not sooner terminated by failure of plaintiff to keep and perform the covenants of the lease, in which case the $1,500 was to be forfeited. Plaintiff paid the rent to December 15, 1886, when he became in default for the rent of one month, ending January 15, 1887. Defendant took possession December 23, 1886, by summary proceedings, and plaintiff obtained judgment for $1,000 of the amount deposited. Held, no error; that the sum deposited was not intended as liquidated damages in case of the termination of the tenancy of the plaintiff by reason of default before the end of the term. Chaude v. Shepard (Ct. App.), 725.

6. Plaintiff's relation of tenant could be terminated before the end of the term only by the act or consent of the defendant; and, when he accomplished it, and took possession of the premises, the damages with which the plaintiff was chargeable were those only which resulted from breach of the covenants prior to the e try of defendant. Id.

7. Plaintiff could not have recovered if the money had been paid upon the contract by way of partial performance by the plaintiff. Id.

8. A clause in defendants' lease provided that they would be responsible for any increase of insurance over a certain rate which might be imposed by insurance companies on the building or the stock and fixtures of any other tenants. At the time the lease was executed, the rest of the building had been let, and cost of insurance fixed, and plaintiff was liable to the other tenants for any increase of insurance caused by the uses for which other parts of the building were leased. Immediately thereafter the rates of insurance were increased on other tenants on account of defendants' business, which increase plaintiff was obliged to pay. Held, that the provision of the lease covered such a case, and that plaintiff was entitled to recover. Noel v. Herman Benke Lithograph Co. et al. (N. Y. Supr. Ct.),

759.

9. At the time of signing the lease plaintiff's agent stated that the only chance defendants run would be about a certain amount. Held, that this was a mere expression of opinion, and that if defendants wished to limit its liability to a certain amount, the limitation should have been inserted in the lease. Id

10. A partially open drain or sewer ran under the floor of the premises rented by defendant from plaintiff in which to keep a hotel bar. The sewerage of plaintiff's hotel emptied into this drain and occasionally overflowed, causing disagreeable odors Held, that the conduct of the landlord in draining his closets through this drain was not such as to constitute an eviction, and that in the absence of fraud or concealment by plaintiff of the situation, defendant was not justified in abandoning the premises by chap. 345, Laws 1860. Sully v. Schmidt (Supr. Ct. Buff.), 873.

11. The lease provided that if the premises were destroyed by fire, or so much damaged as to render them untenantable, either party might terminate it by giving notice, but for no other cause. Held, that the parties had thereby fixed the cause for which the lease could be terminated, and that it could not be terminated for any other cause without plaintiff's consent. ld.

See MINES; RAILROADS, 6.

LEGACY.

See MONEY HAD, 3; WILL, 5, 8, 9.

LIBEL.

1. A published statement that a married man is threatened with a breach of promise suit is libelous per se. Morey v. Morning Joarnal Ass'n (Ct. App.), 49.

2. Evidence that the plaintiff was a married man and as to his business is competent, not to show special damage, but to show the circumstances surrounding him and as bearing upon the hurtful tendency of the libel, and the general damage to which he was exposed. Id.

3. Defendant, a newspaper company, will not be allowed to introduce evidence that its correspondent, who had telegraphed the item, had heard that such suit had been commenced, or how or where he had obtained the information, where defendant did not have such information at the time of the publication. Id.

4. The fact that such an action had been begun against another person of nearly the same name as plaintiff cannot be proven in mitigation of damages under such circumstances as to the source of information. Id.

5. Defendant wrote to the National Temperance Society a letter stating that plaintiff and another were conspiring to swindle him out of some money, and that he did not think the society would be a party to such rascality or take money not their due under or through the help of blacklegs or scoundrels, through false representations or swearing. In an action for libel, Ild, that the question whether the effect of the language was such as to bring it within the statute should have been submitted to

the jury, and that it was error to direct a verdict for the defendant. Clark v. Anderson (Supr. Ct. Buff.), 866.

See SLANDER, 2, 3.

LIEN.

1. The lien for the service of a stallion, under chap. 458, Laws 1887, attaches from the time of service, provided the same is followed by the filing of notice of such lien within the time prescribed. Tuttle v. Dennis (Sup. Ct.), 445.

2. It is not necessary to charge one who purchases the mare after the service but before the filing of the notice of lien with notice of the service, in order to enable the owner of the stallion to enforce the statutory lien. Id.

LIMITATION.

1. Plaintiff held certain tax sale certificates issued by defendant, which stated that the purchaser was entitled to a lease of the said premises for the term aforesaid, after the expiration of two years from the date hereof, unless said premises be redeemed within that time, or any irregularity shall be discovered in the proceedings prior to said sale, in which case said purchase and all sums paid for taxes or assessments on said premises shall be repaid to said purchaser or his assigns." No redemption was made, nor leases given, although demanded, and repayment of purchase price was also refused in July, 1883. In December, 1882, irregularities in proceedings prior to the sale were discovered, rendering the sales invalid, and this action was brought in July, 1883. Held, that the right to recover the money paid for the certificates did not accrue at the expiration of the time for redemption, 1866, but at the time of the discovery of the irregularity (1882), at which time the statute of limitation would begin to run. White et al. v. City of Brooklyn (Ct. App.), 307.

2. Where a summons is delivered to the sheriff for service prior to the expiration of the time prescribed by the statute for the commencement of an action, a substituted service, made after the expiration of such time, but within the time prescribed by 399 of the Code, is equivalent to a first publication of the summons to save the action from the bar of the statute under that section. Clare v. Lockard (Ct. App.), 328.

See ATTORNEYS, 1, 2; BANKRUPTCY, 4; EXECUTORS, ETC., 7; FORECLOSURE, 3; INSURANCE (LIFE), 11; INJUNCTION, 1; MONEY HAD 2; PLEAD ING, 8, 9; POOR; SUPPLEMENTARY PROCEEDINGS, 4.

MANDAMUS.

A mandamus was granted requiring the board of education to meet, organize and appoint a president. The board appealed. Pending the appeal, the board, under protest, a stay having been denied, met and organized. Upon the hearing in this court, counsel stated that they d sired to present the question whether the president was to be elected by the board, or by the common council and the board. Held, that, as the board had organized, the decision of this court would have no effect; and that, therefore, it was improper to make a decision. People ex rel. Green v. Board of Education of Cohoes et al. (Sup. Ct.), 30.

See CIVIL SERVICE ACT, 8; CORPORATIONS, 6, 7.

MANUFACTURING COMPANIES.

1. Defendant, a manufacturing company organized under the act of 1848, in November, 1882, gave a mortgage to the plaintiff bauk as security for discount of notes, etc., made or to be made by it and overdrafts by it, under the authority of Laws of 1864, chap. 517, and 1871, chap. 481, which provide that the "written consent of stockholders owning two-thirds of the capital stock shall first be filed with the county clerk." Such consent was filed by Woodruff, the president of defendant and the owner of twothirds of the stock, on the same day the mortgage was given. Held, that there was a sufficient compliance with the statute to make the mortgage valid as against the company and the stockholders. Martin v. Niagara Falls Paper Co. (Ct. App.), 318.