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JURISDICTION

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Continued.

as distinctly equitable in their nature, which an examination of a
party before trial, at that time, was not. Lotz v. Standard Vul-
canite Pan Co., 68.

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2. Accounting by testamentary trustees Surrogate's Court
Supreme Court. Though in proceedings for an accounting of
testamentary trustees the Supreme Court has concurrent jurisdic-
tion with the Surrogate's Court it will not ordinarily take jurisdic-
tion thereof where the same questions are involved in prior
proceedings in the Surrogate's Court between the same parties.
Where, in an action brought to have adjudged void two certain
promissory notes made by one of the defendants to the order of
plaintiff and discounted by the defendant bank for the maker;
to have adjudged void for want of consideration an assignment by
plaintiff to said bank of a certain legacy as collateral security for
the notes; to have an assignment of an interest in a certain
mortgage delivered by the defendant testamentary trustee to
plaintiff in part payment of such legacy, and afterwards returned
by plaintiff to such trustee, delivered back to plaintiff, and also
to have the rights and priorities of the several parties as assignees
of another legacy under the same will adjudicated and determined,
the defendant trustee seeks equitable relief against the plaintiff
and also an affirmatiove judgment for moneys paid to him on
account of such legacy in disregard of the assignment thereof to the
bank and inadvertently overlooked by the trustee upon the judicial
settlement of his trust, and it is doubtful whether the Surrogate's
Court has jurisdiction to determine some of the questions presented
by the answer of the defendant trustee, this court should entertain
the action and proceed to a determination of the questions involved.
Van Buren v. Wensley, 248.

3. Of Municipal Court of the city of New York - Actions
Judgments-Municipal Court Code. After the dismissal, for want
of jurisdiction, of a Municipal Court action, the plaintiff, the subse-
quent assignee of the cause of action, instead of taking her case into
a court of competent jurisdiction, did nothing until by the enact-
ment of the Municipal Court Code she became entitled to seek her
remedy in the Municipal Court of the city of New York and brought
her action in that court. Upon affirming a judgment in her favor
held, that the Municipal Court Code neither increased nor diminished
her substantive rights but simply gave her in addition to the then
existing courts a new court in which to assert them. Cahill v.
Wissner, 313.

4. Of County Courts to set aside certain transfers of real estate -
Fraud Receivers Accounting. The County Court has not
jurisdiction, even by consent of the parties, of an action to set
aside certain transfers of real estate alleged to have been made in
fraud of creditors, where the plaintiff asks for the appointment of
a receiver and for an accounting of moneys and the judgment
sought will not affect all of the defendants in the same way.
Ertrachter v. Locust Building Co., 368.

See Municipal Court of City of New York; Service.

JURY.

See Trial.

LANDLORD AND TENANT.

1. Lease Summary -
proceedings Subtenants-Appeal.- A
ten years' lease of a plot of land, under which the tenant erected
sixteen bungalows which were sublet for the season of 1917 to
various persons who agreed to pay the rent in installments the last
of which was to be paid not later than August 1, 1917, provided
that after the first two years and for the remainder of the term the
tenant should pay as rent a sum equivalent to one-half of the rental
or income received from the subtenants and that such rent should be
paid in each year of the term " as soon as the same has been collected
by her (tenant) for each year from the occupants of all the bunga-
lows." Held, that it was the intention of the parties than one-half
of the rents as collected should become the property and be turned
over to the landlord as soon as collected. Milton-Alvin Holding Co.,
Inc., v. Williams, 117.

2. Eviction Exclusion of evidence - Damages.- Where, ac-
cording to the testimony of a tenant in an action by her to recover
damages for eviction from the leased premises, the defendant was a
trespasser and a wrongdoer, the exclusion of evidence tending to
show damage is reversible error, the court intimating that there was
enough in on that subject, where it does not appear that the dis-
missal of the complaint was for lack of evidence of damage. Elias
V. Hammer, 665.

See Lease; Trial.

LEASE.

1. Landlord and tenanı - Action for rent - Pleading - Eviction
- Evidence Trial. Where a building is leased to several tenants
and a part or parts thereof remain in the landlord's control, the fact
that a tenant may have known of the presence of vermin in the
building before entering into the lease does not relieve the landlord
of any duty which otherwise would have rested upon him to ex-
terminate such vermin. Where in an action for rent the answer
pleads as a separate defense a constructive eviction and surrender
and the uncontradicted evidence strongly preponderates in favor of
defendant's contention that the premises were infested with rats,
and the only witness to the contrary was plaintiff's agent who
visited the premises from time to time remaining not to exceed half
an hour at any time and who did not see any rats, and the janitor,
who might have been produced to contradict the testimony on the
part of the defendant on the point if false, was not called as a
witness, and defendant testifies that he repeatedly complained of
the matter to the agent, a judgment in favor of the plaintiff will be
reversed and a new trial ordered. Though it appeared that the
defendant occupied the premises for about two years before he
entered into the present lease during all of which time to his knowl-
edge rats infested the premises, uncontradicted testimony that the
bad condition increased during the summer and autumn of the
second year of the term was a sufficient answer to an objection that
defendant who waited a year and two months after the beginning of
term before abandoning the premises had not done so more
promptly. Batterman v. Levenson, 92.

LEASE Continued.

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- Trial

2. Expiration of — Holding over — Landlord and tenant
Evidence. Any intentional occupancy of leased premises by
the tenant in derogation of his landlord's right of possession and use
constitutes, as matter of law, a trespass or a renewal of the lease
for another year by holding over, at the election of the landlord,
and this rule applies where a tenant's holding over is wrongful or
voluntary and not unavoidable in the strictest sense. A lease of
premises in the city of New York expired on February 1, 1917, and
the tenant about six P. M. on that day gave the keys of the premises
to an employee of the landlord. In an action to recover the rent
for January, 1917, concededly due, and for the month of February,
1917, which plaintiff claimed on the theory that defendant held over
after the expiration of the term and that plaintiff had elected to
consider the holding over as a renewal of the lease for another year,
the only issue litigated was whether plaintiff was entitled to recover
the February rent, and though the evidence was conflicting as to
whether defendant occupied the premises after February 1, 1917,
there was testimony from which the jury might properly have
found that there was no intentional occupancy after that date. On
affirming a judgment in favor of plaintiff for the January rent only,
held, that defendant had all the day of February first in which to
move. That whether defendant occupied the premises after said
date was a question of fact for the jury and whether defendant
intended that such occupancy should constitute a holding over and
a renewal of his lease for another year was immaterial. That the
condition of the premises at the expiration of the lease was imma-
terial and no error was committed by the exclusion of testimony
offered by plaintiff of such condition at that time. Schwartz, Inc.,
v. De Jong, 553.

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3. Tenant's rights under-Landlord and tenant Contracts -
Surety Executors and administrators.— Where after the death of
the guarantor on a lease his widow as an individual, though she was
one of the executors of his estate, became vested to the title to the
tenant's right under the lease, such act not being necessary to con-
serve her testator's estate, and thereafter by an agreement with the
landlords reciting that she had become the owner and holder of the
lease" and is now in possession of the premises assumes the pay-
ment of the rent reserved by the original lease, an agreement made
synchronously, by the executors and trustees of the surety's estate
to guarantee the payment of the rent reserved in said lease creates
no liability against the estate of the surety. A contention that as
by the aforementioned agreement of the executors and trustees the
original lease, except as modified, was in terms "fully ratified and
confirmed" the liability of the original tenant was preserved, held
untenable, because the transferee of the tenant's rights could not
bind the estate of the surety although she did attempt as executrix
to bind said estate to carry out the agreement she had executed as
tenant. Brill v. Friedhoff, 565.

See Brokers; Contracts; Landlord and Tenant.

LEGACY.

See Assignments.

LIENS.

757

See Mechanics' Liens.

LIQUOR TAX LAW.

Constitu-

1. Suspension of operation of liquor tax certificate·
tional law - Statutes
missioner of excise - Certiorari.- An order of the state commis-
Motion for stay when denied
State com-
sioner of excise made under and pursuant to chapter 521 of the
Laws of 1917 suspending the operation of the liquor tax certificate
issued to relator may be reviewed by certiorari. The constitution-
ality of said statute, because of its very great importance as a war
measure designed to aid the federal government, ought not to be
determined on motion at Special Term. Where it is undisputed that
at the time of the granting of said order the conditions in the city
where relator's premises are located were such that the order sus-
pending all the liquor tax certificates in said city was justified, a
motion for a stay of the order will be denied.
and the other holders of liquor tax certificates should be relieved
While relator
from the further operation of said order if the conditions of the
city have materially changed and there is no longer a need that the
order be enforced, the court is without power to afford relief until
after an application has been made to the state commissioner of
excise for a revocation or rescission of the order because of the
changed conditions. People ex rel. Katz v. Sisson, 186.

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2. § 33 What deemed a "liquor" within meaning of Rulings
of United States internal revenue department
ments - State commissioner of excise.- Under the rulings of the
Actions - Judg-
United States internal revenue department the sale at retail of the
beverage known as "Weiss Beer" requires the payment of a retail
liquor dealer's or retail malt dealer's special United States internal
revenue tax. Such beverage because of its high alcoholic content
indicated by chemical analysis must be deemed a "liquor
the meaning of the Liquor Tax Law, the sale of which by one who
within
has not paid the tax prescribed by law and obtained a liquor tax
certificate is forbidden. Where in such circumstances the liquor is
kept stored or deposited in a town in which traffic in liquor except
by pharmacists on a physician's certificate is forbidden "for the
purpose of unlawful sale or distribution within this state" it is
subject to confiscation, and in an action instituted by the state com-
missioner of excise under section 33 of the Liquor Tax Law plaintiff
is entitled to judgment forfeiting to the state said liquor which was
seized pursuant to a warrant issued under said section 33 of the
Liquor Tax Law. Sisson v. 684 Bottles of Weiss Beer, 401.

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3. § 30, subd. H Violation of - City of Cohoes
Mandamus.- Where it appears that practically all of the forty-six
Statutes
saloons or places in Cohoes, N. Y., are openly and notoriously vio-
lating the provisions of subdivision H of section 30 of the Liquor
Tax Law (Laws of 1909, chap. 39) with respect to obstructions in
their windows and that many of them are violating the provisions
of said statute relating to obstructions which prevent a full view
of the entire room by every one present, and such violations are
stated in great detail in a petition for a writ of peremptory man-
damus to compel the commissioner of public safety, the chief of

LIQUOR TAX LAW - Continued.

police and his subordinates to enforce the observance of the law,
giving dates, names and locations of saloons and the facts in each
instance constituting the unlawful obstructions, the application for
the writ will be granted. People ex rel. Brown v. Kennedy, 450.

4. When resubmission of four excise questions denied - Evi-
dence. Upon an application for a resubmission of such questions
it is incumbent upon the petitioner to satisfy the court that the
soldiers' vote, if cast or permitted, would have changed the result,
and, in the absence of satisfactory evidence to that effect, the resub-
mission asked for will not be ordered. Matter of Zierbel, 626.

See Election Law.

LOCAL OPTION.

See Election Law.

MANDAMUS.

1. Writ of, for inspection of records in office of commissioner of
water supply, etc., denied — Actions Statutes General Munici-
pal Law, § 51 Greater New York Charter, § 1545.— Where the
terms of a general statute (General Municipal Law, § 51) and those
of a special statute (Greater New York Charter, § 1545) though
both relating to the same general subject matter are not the same,
the charter provision is controlling. Section 1545 of the Greater
New York Charter, declaring that all books, accounts and papers in
any department or bureau of the city "except the police and law
departments" shall at all times be open to the inspection of any
taxpayer, subject to any reasonable rules and regulations, etc., an
application by the plaintiff in an action against the city to recover
damages caused by the bursting of a water main in front of his
premises, and which flooded his basement, for a writ of mandamus
for an inspection of the reports of engineers and of other reports,
records, papers and documents on file in the office of the commis-
sion of water supply, gas and electricity relating to the explosion
and bursting of said water main, will be denied where it appears
that prior to the commencement of the action, which is based on the
ground of the city's negligence in the construction of the water
main, all the papers were transferred to the law department and
now are in the possession of the corporation counsel for the pur-
pose of defending the present action. Matter of Ihrig, 1.

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2. When peremptory writ of, granted-State Finance Law,
§ 44- City of New York Decedents' estates. Under section 44 of
the State Finance Law which provides: "Whenever any sum of
money, paid into court, shall have remained in the hands of any
county treasurer, or of the chamberlain of the city of New York,
for the period of twenty years, it shall be paid over by such officer
with all accumulations of interest thereon, after deducting his legal
fees, to the treasurer of the state of New York," an application by
the attorney-general on behalf of the people of the state for a
peremptory writ of mandamus to compel the chamberlain of the
city of New York to pay over to the state treasurer the amount of
money accumulated between the years 1840 and 1897, and now on

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