MALICIOUS PROSECUTION — Continued.

PAGE.

Held, that it was incumbent upon the plaintiff to prove that the prosecu-
tion was instituted through malice and without probable cause;

That, where the facts bearing upon the question of probable cause are
not disputed, that question is one of law for the court to determine; but
that where the evidence bearing upon the question is controverted and
conflicting or involves the credibility of witnesses, the question becomes
one of mixed law and fact and must be submitted to the jury under proper
instructions;

That the question whether there was probable cause for the prosecution
does not depend upon the guilt or innocence of the accused, but upon
whether the apparent facts were such that a discreet and prudent person
would be led to the belief that the accused was guilty;

That the plaintiff had failed to show that there existed a lack of probable
cause for the prosecution, but that, on the contrary, the undisputed facts
established that there was probable cause for the prosecution;

That, assuming that the defendant should, before beginning the prose-
cution, have made inquiries of an assistant cashier in the employ of his com-
pany, who had left such employ at the time of the investigation, he would
be chargeable with no more knowledge than she could have imparted to
him if he had consulted her, and that, as the knowledge which she could
have imparted would have increased his belief in the plaintiff's guilt, his
failure to make inquiries of the assistant cashier did not negative the exist
ence of probable cause;

That the fact that in the affidavit upon which the warrant was issued the
defendant averred that the plaintiff failed, neglected and refused to pay
over the money to the express company, when it was conceded that the
defendant had made no demand upon the plaintiff for the money, did not
establish that the defendant had made a false affidavit and thus indicate a lack
of probable cause, for the reason that the affidavit was to be construed as
alleging an omission to pay over rather than the making of a demand and an
affirmative refusal;

That the fact that eight months had elapsed since the misappropriation
and before the issue of the warrant did not establish a want of probable
cause, it appearing that only a short time had elapsed between the close of
the defendant's investigation and the plaintiff's arrest;

That lack of probable cause could not have been inferred from the fact
that the arrest was not made until the plaintiff had started in a rival business,
and until seven days after the defendant had begun a civil suit against
the plaintiff charging him with unfair competition, for the reason that
these facts did not bear upon the question of probable cause but upon the
question of malice;

That lack of probable cause may not be inferred from proof of malice.
BANKELL. WEINACHT

MANDAMUS - Alternative mandamus-order granting it is not appeal-
able.] An order granting a motion for an alternative writ of mandamus
is not appealable to the Appellate Division.

PEOPLE EX REL. LEVENSON v. O'DONNEL...

To compel the relator's reinstatement in a city office-effect of the
expiration of the term of office of one of the three commissioners who removed
him leave to make his successor a party- what allegations that changes
were made for political reasons and not for economy, if true, justify the
application when an alternative writ is proper.

PEOPLE EX REL. LAZARUS v. COLEMAN.....
See CIVIL SERVICE.

MANUFACTURING — Franchise tax-

-

the making of a paving compound

is a manufacture — the application thereof to the street is not.
See TAX.

MANUFACTURING CORPORATION :

See CORPORATION.

316

253

88

PAGE.

-

MASTER AND SERVANT- Contract for a theatrical performance -
under what circumstances a theatrical manager may discharge a vaudeville per-
former-charge of the court.] 1. Upon the trial of an action it appeared that
the defendant, a theatrical manager, engaged the plaintiff, a vaudeville per-
former, to produce his specialty, which was known as the "Comedy Act"
of the "
Marco Twins," performed by the plaintiff and a dwarf, at the
defendant's theatre for a period of eight weeks; that, by the consent of the
parties, the production of the specialty did not begin until the second week
of the contract period, and that at the expiration of such second week the
defendant discharged the plaintiff.

It appeared that the contract was negotiated through a theatrical agency
while the plaintiff was in Europe; that such contract was prepared in dupli-
cate, one of which was signed by the defendant; that the duplicates were
then forwarded to the plaintiff, who erased from each a clause to the effect
that the defendant reserved the right to cancel the contract at will "during
or after a single performance of an incompetent person" or in the event of
a performer "becoming careless or indifferent " about his work; that the
plaintiff then retained the duplicate signed by the defendant and signed and
mailed the other to the theatrical agency, together with a letter asking to be
immediately notified whether the defendant consented to the change and
stating that otherwise he would not enter into the contract; that the matter
was not further brought to the attention of the defendant by the theatrical
agency, and that the plaintiff, assuming that the change was satisfactory,
entered upon the performance of the contract.

It further appeared that the plaintiff had produced the specialty for many
years; that some six or seven years before the contract was negotiated, the
defendant had witnessed a performance of the specialty in another theatre
by the plaintiff and a dwarf named Ulps.

The defendant gave evidence tending to show that the contract was made
with the understanding that the specialty should be performed by the plain-
tiff and Ulps, and that it should be the same act in all material respects as
that theretofore presented by them; that Ulps did not take part in the per-
formance of the act as presented by the plaintiff in the defendant's theatre
and that the act as then given was materially different from that previously
given by the plaintiff.

The court submitted to the jury the question whether the defendant had
assented to the elimination from the contract of the clause entitling him to
icancel the contract if the performer became incompetent or careless or
indifferent about his work, and instructed the jury that if he did so consent,
he had no right to discharge the performers. The court also submitted to
the jury the question whether it was the understanding of the parties that
the plaintiff was to be assisted by Ulps and instructed them that if the plain-
tiff agreed to produce a particular combination (evidently referring to the
personnel of the actors) and did not, that this would constitute a violation of
the contract and would prevent a recovery. He then at the request of coun-
sel for the plaintiff, instructed the jury that "if the jury find that William
Hammerstein (the defendant's manager) did not make the appearance of
Ulps with plaintiff a condition of the contract, the verdict must be for plain-
tiff," and declined to charge at the request of counsel for defendant, that
if the plaintiff gave an incompetent performance the defendant was at lib-
erty to terminate the agreement without any notice whatever, and was not
compelled to permit him to perform for the entire period mentioned in
the contract."

Held, that the action of the court in charging the plaintiff's request and in
declining to charge the defendant's request was improper as the jury would
naturally infer therefrom that even if the performance was materially dif-
ferent from that previously given by the plaintiff, and from what was
known and understood as his "Comedy Act," still the plaintiff was entitled
to recover if the clause reserving the right to discharge was not a binding
part of the contract and if it was not agreed that Ulps was to take part in
the performance;

That this was not the correct rule of law, as, under those circumstaces,
the defendant would have a right to terminate the contract.

MCLAUGHLIN . HAMMERSTEIN.

225

MASTER AND SERVANT - Continued.

PAGE.

2. Contract for the services of a traveling salesman at a weekly salary —
the employer is entitled to his exclusive services.] Under a written contract,
by the terms of which one of the parties thereto employs the other party as a
traveling salesman at a salary of twenty-five dollars per week and traveling
expenses, for a term of six months, the employer is entitled to the exclusive
services of the employee during the continuance of the contract, even in the
absence of any provision to that effect in the written contract or of a concur-
rent or collateral agreement in respect thereto. SEABURN . ZACHMANN..... 218
3. The salesman is entitled to nothing during the week in which a breach
occurs or thereafter.] In the event of a breach of the contract by the employee
he cannot recover any salary for the week during which the breach occurred,
nor, in the absence of estoppel or waiver, for the rest of the contract period.
Id.

An employee or any number of employees in concert may leave the
master's employment - a strike to better the workmen's condition is lawful
- "picketing" defined—“boycott” defined — a combination to secure the
exclusive employment of its members is lawful — where its primary purpose
is to procure the discharge of an outsider it is unlawful - power of the court
to decide upon the right of an employer to discharge or of an employee to
quit right of a discharged employee to compel its exercise - status of a
stockholder to attack an agreement with a trade union made by an executive
committee of the corporation. MILLS v. UNITED STATES PRINTING Co..... 605
See LABOR UNION.

Employment of an agent on a commission by the president of a cor-
poration "authorized to employ and discharge any and all employees”—
when the corporation is estopped to repudiate its liability thereunder — com-
missions on business acquired before and continuing after the employment
has ceased. HOOKE . FINANCIER Co......

See PRINCIPAL AND AGENT.

... 186

Duty of the master as to place and appliances for work - death of a
servant from the fall of an elevator — when it does not establish negligence
of the master when the doctrine of res ipsa loquitur is inapplicable.
STACKPOLE v. WRAY

See NEGLIGENCE.

Public policy—a contract between employers and an employees'
union by which the former engage to employ only members of the union and
to discharge all other workmen is illegal. JACOBS v. COHEN....

See CONTRACT.

MECHANIC'S LIEN:

See LIEN.

MILEAGE BOOK:

See RAILROAD.

MILK CANS - Venue of an action to recover penalties for the unauthorized
use and possession of.

See VENUE.

MISTAKE - Oysters planted by mistake on land under the waters of Long
Island sound they constitute personal property of the planter as between
him and the owner of the land. ~ VROOM v. TILLY...............

262

481

516

PAGE.

MONEY RECEIVED - Equitable principles applied to an action for money
had and received.

See MERINO v. MUNOZ....

MORTGAGE - Receiver appointed in a mortgage foreclosure suit — his
right to occupation rental from a tenant whose lease is subsequent to the
mortgage - such a tenant may not offset damages arising out of a breach of
covenant by the landlord. DERBY v. BRANDT

See LANDLORD AND TENANT.

The occupation of a house by a mother and son, the record title to
which is in the son, is not notice to one taking a mortgage thereon from the
son of an unrecorded life lease given by the son to the mother.

PHILLIPS v. OWEN....

See RECORD.

Alimony "as long as she shall live" - when the payment is secured
by a mortgage the obligation survives the husband - when not secured it
does not. WILSON v. HINMAN..

See HUSBAND AND WIFE.

MORTIS CAUSA GIFT:

See GIFT.

MOTION AND ORDER - A party to a motion is entitled to have recited
in the order disposing of the motion all papers used or read thereon; he is not,
however, entitled to have such order state the specific ground on which the motion
was decided.

See DAVIS v. REFLEX CAMERA Co......

Action by the guardian ad litem of an insane plaintiff — substitution of
a committee subsequently appointed — the order should not be made nunc pro
tunc-it should not permit the complaint to be amended further than to show
the appointment of the committee and the order of substitution.

See CALLAHAN v. N. Y. CENTRAL & H. R. R. R. Co.....

Allegations based upon information and belief, contained in an affidavit
used on a motion for a temporary injunction, constitute no proof of facts so
alleged, where neither the sources of the information nor the grounds of the belief
are stated.

See CUPPLES ENVELOPE Co. v. LACKNER....

-

Supplementary proceedings — examination of a third party — an affi
davit on information and belief which does not state the sources thereof is insuf-
ficient-right of the judgment debtors, when enjoined, to move to vacate the
order.

See MATTER OF FIRST NAT. BANK OF EARLVILLE....

-

Adjournment of a trial to a place where no justice resides or has chambers
— a written stipulation required — lack of jurisdiction is not an irregularity
which must be specified in a notice of motion to vacate a judgment.

See ARMSTRONG v. LOVELAND.......

To avoid the imputation of contempt of court, a condition should be
inserted in an order directing that a bill of particulars be served that evidence
be precluded of matters not set forth.

See OATMAN v. WATROUS.

Misconduct of a juror· -a motion to set aside the verdict should be made
at Special Term — if made without objection at the Trial Term an appeal will
be considered.

-

See WERNER v. INTERURBAN STREET R. Co

Dismissal of an indictment for want of prosecution an order denying
a motion therefor is not appealable when it is properly denied on the merits.
See PEOPLE v. MARTIN. (No. 1)...

Bill of particulars — if returned as insufficient, the party serving it may

move to compel its acceptance.

See FALLER v. Ranger...

374

MOTION AND ORDER - Continued.

PAGE.

An application for an inspection of a contract sued upon must be by

petition.

See LEE v. WINANS.....

297

Judgment on the pleadings not granted on motion in a matrimonial action.
See DURHAM v. DURHAM...

450

· Alternative mandamus — order granting it is not appealable.
See PEOPLE Ex rel. LeveNSON v. O'DONNEL..........

253

Basis of a motion for an extra allowance.

See COSTS.

Motion for a new trial.

See NEW TRIAL.

-

MUNICIPAL CORPORATION — Contract between a city and an electric
illuminating company. in an action to enforce such contract it is not a
defense to the city that it has appropriated the taxes levied for lighting purposes
to the payment of a gas contract.] 1. A city which makes a contract for the
furnishing of electric light should not be allowed to escape payment for
light furnished and accepted thereunder, on the plea that at the time the
electric lighting contract was executed there was in existence a contract
with a gas illuminating company for the furnishing of gaslight, and that
the common council of the city had appropriated all of the taxes levied for
lighting purposes to the payment of obligations incurred under the contract
with the gas illuminating company, when it appears that such appropriation
was not compulsory under the terms of the gas illuminating contract, but
was an arbitrary act in utter disregard of the obligations flowing out of the
electric illuminating contract. KENNEDY v. CITY OF NEW YORK.....
588

2. Failure of the illuminating company to supply light during the
stipulated hours-chat provision of the contract covers it.] The fact that the
electric lighting contract required the lights to be furnished from sunset
to sunrise, and that the electric light company only furnished such lights after
one thirty A. M., is not a defense to an action brought by the electric light
company against the city to recover moneys due under the contract, where
it appears that such contract provided, "In case for any reason any of such
lamps are not lighted and lights are not furnished during any of the times
herein provided or during the hours herein provided for, a rebate pro rata
according to the time they are not so lighted shall be made from the amount
here provided to be paid," and that the city had never contended that such
variations from the terms of the contract, concerning the hours during which
electric light should be furnished, were not within the quoted provision of
the contract. Id.

3. -City Court of New York-it is only a local statutory court of inferior
jurisdiction.] The City Court of the city of New York, although enumer-
ated as a court of record in section 2 of the Code of Civil Procedure, is
only a local statutory court of inferior jurisdiction, and the facts necessary
to confer jurisdiction upon such court will not be assumed but must be made
to appear affirmatively. FREES . BLYTH....

... 541

4. Notice of claim for personal injuries against the city of New York-
it should be filed in the corporation counsel's office.] The notice, required by
chapter 572 of the Laws of 1886 to be filed, before an action to recover
for personal injuries negligently inflicted may be brought against any city
having fifty thousand inhabitants or over, must, in the case of the city of
New York, be filed in the corporation counsel's office.

BEDELL v. CITY OF NEW YORK....

-

5. Motion to amend the complaint after a dismissal at the trial, with stay
to allow such motion to be made terms imposed] The complaint in such an
action alleged that the notice in question was served upon the comptroller
of the city of New York, but did not allege that it was filed in the office of
the corporation counsel. Upon the trial the complaint was dismissed
because of the absence of this allegation, but the entry of judgment was sus-
pended in order to allow the plaintiff to move at Special Term for permission
to amend his complaint by inserting such allegation. The plaintiff made the

128