moves for an order that the det
fendant pay to him the amoun-
of said offer. Held, that since
the amendment of § 244 of the
code (in 1857), such an applica-
tion has been and should be
granted. Wireman v. Remington
Sewing Machine Co., 314.

7. This is a substantial right when
the answer admits part of the
plaintiff's claim to be just, and.
in conformity to § 244 of the
code, it being in the nature of
a right to a judgment; and,
therefore, no question arises as
to whether a party can appeal
from an order affecting it. Ib.
8. Upon the question whether the 1.
court has the power to suspend
the entry of judgment, after a
trial and verdict, except in the
cases named in § 265 of the
code,-Held, that the court has
the necessary control over its
judgments, that in the exercise of
a sound discretion, it may sus-
pend, vacate, or amend them.
This power is incidental, and 2.
necessary to the orderly and
equitable administration of jus-
tice. Alfaro v. Davidson, 408.
9. A judgment in an action
brought pursuant to the provi-
sions of § 32, article 2, title 3, ch.
8, part 3, R. S., relative to charg-
ing heirs and devisees with
the debts of the decedent, to
the extent of the estate, inter- 3.
est, and right in the real estate
decended to them from, or de-
vised to them by, such decedent,
to charge certain real estate with
a debt due the plaintiff by a
decedent, estops the parties de-
fendant and their privies from
thereafter disputing that the
decedent had such estate, in-
terest, and right in such real
estate, as she was by the com-

put in issue, or directly involved
in the suit, is conclusive in any
other action between the same
parties or their privies, in re-
spect to the same fact, title, or
question. Ib.

See FRAUD, 2, 3.

JUDICIAL NOTICE.
See CONTRACTS, 20.

JUDICIAL SALE.
See EXECUTION 1, 8-22.

JURISDICTION.

An act of the legislature which
merely affects a remedy is not
in conflict with the provision of
the constitution (art. 6, § 12)
which continued the superior
court with the powers and juris-
diction that it held and pos-
sessed at the time of the adop-
tion of the constitution. Rae v.
Mayor, &c., of New York, 192.

The legislature has always, and
rightfully, assumed the power
to change the forms of proceed-
ings and remedies, and to limit
them to certain tribunals, and
any general law affecting the
mode of obtaining a remedy,
can not be construed into an in

fringement of constitutional ju
risdiction or power. Ib.

The Superior Court, as a court
of equity, has the same jurisdic-
dion as the late court of chan-
cery of this state, in actions to
compel the specific performance
of contacts for the purchase and
sale of real estate, where the
parties to the action have been
brought within its jurisdiction
by service of process or other-
wise. Baldwin v. Talmadge,

400.

plaint in such action alleged 4. The late court of chancery
and by the decision thereof ad-
judged to have. Hudson v.
Smith, 452.

10. A judgment of a court of
competent jurisdiction upon any 5.
fact, title, or question distinctly

exercised such a jurisdiction
(see the cases cited in the points
of counsel and the opinion of
the court). Ib.

The provisions of the code are
not applicable, when land which

is the subject of
lies out of the state.

-

See EQUITY.

the action
Ib.

were

579

the expense from the landlord,
or omit to make the repairs,
&c., and sue for his damages. Ib.
4. Where the lease, for the pur-
pose of giving a security for the
rent, contains this clause, “A
lien shall be given by the said
lessee to the said lessor to se-
cure the payment thereof " (that
is, of the rent)
66 on all the fur-
niture that shall be placed in
said hotel by said lessee,"
equitable lien is not raised.
Hale v.
Omaha National Bank,

LANDLORD AND TENANT.
1. When a lessor owning a build-
ing and being about to erect a
new one adjoining it and to be
connected with it, leased the old
one and the one to be erected]
for hotel purposes, covenanting
to make certain repairs in some
of the rooms in the old build-
ing and to finish the new
building (which should contain 5.
a certain number of rooms), by
a specified time, and that such
rooms should be ready for occu-
pation, and possession thereof
should be given by such speci-
fied time, and the rooms
not ready for occupation until
some time after the specified 6.
period, Held, the evidence
showing that rooms in a hotel, |
both furnished and unfurnished,
have their value for use, vary-
ing with certain periods of the
year, which is known
provable,
and
that the
measure of damages was
lessee's 7.
the
proved value of the use of fur-
nished rooms, for such of the
rooms for which he had furni-
ture, and for the others the
proved value of unfurnished
rooms. Hexter
2. This measure is not open to
v. Knor, 109.
the objection that it involves
the allowance of contingent
profits for the use of the furniture.
or of profits contingent upon
the use of the hotel by guests. 8.
The allowance for the value of
the use must be varied accor-
ding to the season of the year.
Ib.

3. Upon breach of a covenant by
the lessor to repair, to restore,
to put in order, or to replace old
appurtenances with
lessee, at his option, has the
new, the!
right to make the repairs, &c.,
being judicious and reasonable 9.
in n expenditure, and recover]

207.

an

One who, without notice of
the lien, takes a mortgage to
secure a prior indebtedness due
him by the mortgagor, and by
the mortgage extends the time
of payment, is a bona fide in-
cumbrancer for value, and takes
Where, by the subject clause,
free of an equitable lien. Ib.
property is transferred subject
only to certain specified liens,
there is a strong inference that
all other liens which may be
held by the transferror are
waived. 1b.

right

Where a building having win-
dows overlooking vacant prem-
ises owned by the lessor is de-
mised, "with the appurten-
ances, "by a lease containing only
a covenant for quiet enjoyment,
the lessee acquires no
against the lessor, or those
claiming under him, to have the
windows remain unobstructed
for the passage of light and air,
or any other purpose. Doyle v.
Lord, 421.

Such a right does not pass
under the clause, with the ap-
purtenances." This, although
the vacant premises are situated
in the rear of the building and
have erected on them a privy
(constituting what is ordinarily
termed a yard), it appearing that
the lessee had no right to the
use of the privy nor of access
thereto. Ib.

Consequently the lessor, or those
claiming under him, are at lib-

erty to place an erection on such|
vacant premises, although the
effect is to entirely obstruct the
windows of the demised house
which overlooks the vacant
premises. Ib.

might understand what rights
he had, and what the conditions
of the lease to the Insurance
Company were. On both leases
was endorsed the following rule:
"No sign, advertisement, or
notice shall be inscribed, paint-
ing or affixed on any part of
said outside or inside of said
building, except of such color
and size in such places upon or
in said building as shall be first
designated by said lessor and
endorsed hereon." Held, that
K. took subject to the above
clause in the lease to the Insur-
ance Company; and as to signs
on the side entrance was bound
to endeavor to effect an amicable
arrangement with the Insurance
Company. Knoepfel v. Kings
County Fire Ins. Co., 553.
13. Under such a clause, an action
in equity by K. respecting signs
on the side entrance was not
maintainable, unless K. had

10. These rights are not affected
by the facts, that the lessor
had covenanted to put iron
bars in the windows; had for a
valuable consideration granted
to an adjoining owner the privi-
lege to put windows in his build-
ing looking into the rear prem-
ises, and had covenanted not to
obstruct such windows; that the
lessee was restricted by the
demise to him, to using the
demised premises for a particu-
lar business, for which business
the light from the windows
was highly desirable and bene-
ficial, the sales largely depend-
ing on it; that the lessor had
subsequently leased the vacant
premises to the party who was
putting up the erection com-
plained of, making such subse-
quent lease subject to the prior
one, and providing in the sub-
sequent lease that the lessee
therein should not interfere with|
the lessee in the prior lease, in
the occupation of the premises
thereby demised. Ib.
11. The English doctrine of an-
cient lights does not obtain in
the state of New York. Ib.
12. M., by his agent J., leased
certain premises to an Insurance
Company. The lease contained
the following clause: "The one-
third, at least, of the front
water-table
is reserved
for signs for the tenants of the
rear offices, and such amicable
arrangement for signs on the
side entrance as may be agreed
for." M., by the same agent,
afterwards leased the offices in
the rear to K., and at the time
of delivery to K. of his lease,
also handed him a slip of paper
on which was printed the above See
clause in the lease to the In-
surance Company, so that K.

used all reasonable endeavors
and exhausted all the means in
his power to bring about an
amicable arrangement with the
Insurance Company. He was
not relieved from this duty,
by having been insulted by
one of the officers of the com-
pany about a month before he
attempted to put up his signs
(even if such were the fact). Ib.
14. Such an action as to signs

on water-table was not main-
tainable when the Insurance
Company at all times conceded
to the plaintiff in respect thereof
all that the court finds him en-
titled to. Ib.

LIEN.

As to the right of a party in
possession, claiming ownership,
to pay off a lien and claim a
subrogation;
remarks of
MONELL, Ch. J., in Hudson v.
Smith, 452.

see

ASSESSMENTS, 12-14; LAND-
LORD AND TENANT, 4–6;
MORTGAGES.

LIMITATIONS OF ACTIONS.

1. A promissory note of a third
party, payable at a future time,
endorsed and delivered by a
debtor in payment of or as 1.
security for a part of his indebt-|
edness, operates to take the case
out of the statute of limitations,
as of the day of its delivery to
the creditor, not as of its pay-
ment. Smith v. Ryan, 489.
2. A payment on account,

or a

transfer of a security as collater-
al security on record, operates to
take a case out of the statute
only by reason of a promise im-
plied from the act, to pay the
balance. Such a promise can
be implied only from the act of
the debtor himself or his au-
thorized agent. In the case at
bar, the only act done by the
defendant was the transfer of
the notes; the payment of them
at maturity by the makers 2.
was not the act of defendant or
of his authorized agents. The
payment by the makers was not
made as agents of the defen-
dant, but in discharge of their
principal debt, pursuant to their 3.
legal obligations. Ib.

LITERARY PROPERTY.

1. Words which in their ordinary
and universal use denote the
virtues, such as "Charity,'
"Faith," can not ordinarily be
appropriated by any one as a
title or designation for a book,
play, &c., written, &c., by him,
treating or enforcing, symboliz-
ing, &c., a virtue, to the exclu-
sion of any other person who
may write, &c., a book, play,
&c., treating upon, enforcing,
symbolizing, &c., the same vir-
tue Isaacs v. Daly, 511.
2. There may be cases where a 1.
title is not made use of in bad]
faith, or to promote some im-|
position, or to inflict a wrong,
when a court of justice should
interfere to prevent its use or to
compensate a party who has in

consequence sustained an injury. I b.

MALICIOUS PROSECUTION.

Malice and want of probable cause must be proved to sustain an action for malicious prosecution and false imprisonment. It is well settled, that if malice had been expressly proven, that the action could not be maintained unless the plaintiff also established that there was no probable cause for the arrest. If it appears that the plaintiff was wholly innocent of the charge preferred, yet his action will be defeated, if defendant proves that he had reasonable grounds to believe that plaintiff was guilty at the time defendant made his complaint, and caused plaintiff's arrest. Wilson V. King, 384.

On the review of the facts in the case at bar, the court held that probable cause for the defendant's action was fully established, and justified the dismissal of the complaint. Ib.

The fact that the officer arrested plaintiff without a warrant, was no ground for sustaining the action. Although no felony had in fact been committed, the officer had reasonable grounds to believe that one had been committed, and acted in good faith and without evil design, and was, therefore, authorized to make the arrest without a warrant.

The question of malice and probable cause is one of law for the decision of the court, and not one of fact for the jury. Ib.

MARRIED WOMEN.

The plaintiff, a married woman, made and indorsed five several promissory notes of five hundred dollars each, for the accommodation of her husband; one of which had been collected after judgment, an action com

menced upon another, and sep-| arate actions threatened upon each of the others. She claims that she is not liable for the payment of either of these notes, and states sufficient reasons that would amount to a valid defense to any action brought against her on the same, and she prays for equitable relief:

a lawful manner, and sells the property generally without taking any notice of a prior lien or mortgage, he is not liable in trespass or trover at the suit of the mortgagor or the prior lienee or mortgagee. Hale v. Omaha National Bank, 207.

MOTIONS.

1. That her signature on the 1. Upon a motion to dismiss a notes be canceled.

2. That she be released from all liability by reason of her signature upon them.

3. That defendant be enjoined and restrained from commencing or maintaining any action 2. against her on account of said notes. On the demurrer of the defendant alleging that the complaint did not state facts sufficient to constitute a cause of action,-Held, that although

complaint on a particular ground, if that ground is untenable, and there is no other ground which is incapable of being obviated, a denial of the motion is proper. Raynor v. Hoagland, 11. Upon the denial of such a motion, if no other motion or request is made, and no evidence given on the part of the defense, the court can not do otherwise than direct a verdict for the plaintiff. Ib.

the plaintiff incurred no legal 3. Defendants, on the 4th of Noobligation by her indorsement, &c. (Philips v. Wicks, 36 Super. Ct. 254), and has a valid defense to any action upon them, she can not relieve herself of the obligation in a court of equity. She must wait until she is summoned before a court of law, when her defense interposed will be heard, and her legal rights declared. Hoffman v. Treadwell, 183.

2. Under the decisions and under the principles of equity, as adjudicated and understood, nothing appears in the facts of this case that will give a court of equity jurisdiction. The remedy of the plaintiff is perfect,

vember, 1874, offered to allow
judgment to be taken against
them for seven hundred and
fifty dollars, with interest and
costs, which offer was not
accepted, and defendant after-
wards answered, contesting
plaintiff's claim for all sums be-
yond the said seven hundred
and fifty dollars. Plaintiff
moves for an order that the
defendant
pay to him the
amount of said offer.-Held,
That since the amendment of
§ 244 of the code (in 1857),
such an application has been
and should be granted. Wireman
7. Remington Sewing Machine
Co., 314.

and attainable in a court of law, See APPEAL, 2, 17-19, 24, 25, 28; in her answer to any action brought on these notes or any one of them. 1b.

MORTGAGES.

Where a mortgagee of chattels, whose right to possession has become perfected under the mortgage, obtains possession in

JUDGMENT, 3, 4, 6, 7; NEW
TRIAL; REFERENCE, 3-6.

MUNICIPAL CORPORATIONS. Where the duties of an employee of a municipal corporation do not absolutely require his presence every day at the office of another officer of the corpora