Page:The Green Bag (1889–1914), Volume 18.pdf/742

 NOTES OF RECENT CASES

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State, 33 S. W. 1083, where the same decision is of the piano and therefore contemplated that announced. Similar cases are People v. Majors, the piano should be removed by enlarging the 65 Cal. 138, 3 Pac. 597; Kennedy v. Howard, 74 opening of the window, plaintiff was entitled to a Ind. 87; State v. Conncll, 49 Mo. 282; Ex parts decree allowing him to do so on giving sufficient Ryan, 10 Nev. 261; Ruffin v. Commonwealth (Va.) security. EQUITY. (See Constitutional Law — Torts.) ai Grat. 790. All of these decisions sustain the LANDLORD AND TENANT. (Negligence.) Texas court in its holding that the second prose cution is not barred by the first. The liability of a landlord to his tenant for DIVORCE. (Condonation — Recrimination.) injuries by reason of infection of a contagious Pa. — In Talley v. Talley, 64 Atlantic Reporter, disease on account of the premises having 523, it was contended that under a law providing previously been occupied by a tenant having a contagious disease is discussed in Finney v. Steele, that in an action for divorce for adultery if de fendant shall prove plaintiff to have been guilty 41 Southern Reporter, 976. In this case, how ever, it was shown that the landlord had intrusted of a like offense this shall constitute a good de the disinfection of the house to an experienced fense; a husband who has erred and has been for given by his wife cannot afterwards obtain a physician and a trained, experienced, and com divorce from his wife because she has subsequently petent nurse; and while there was testimony by other experts, giving it as their opinion that there committed the same offense. The court, how ever, said that no such shocking construction werj better means of disinfection than those that were used, yet as there was no testimony ques could be placed on the statute, as such a construc tion would mean a license to the condoning spouse. tioning the experience or competency of the phy EQUITY. (Injunction — Remedy at Law.) sician and nurse to whom the work of disinfection Mass. — A case involving some fine points of law was committed, the court was of the opinion that is Berry v. Friedman, 78 Northeastern Reporter, the landlord was not liable. MUNICIPAL CORPORATIONS. (Change of 305. Plaintiff therein had rented a piano to a tenant of defendant. By reason of the dimen Grade — Compensation.) Ala. — In Town of New sions of the piano, the tenant was unable to move Decatur v. Scharfenberg, 41 Southern Reporter, 1024, the Supreme Court of Alabama reaffirms the it into her apartments except by enlarging a win dow which opened into it. Defendant allowed doctrine that under the Constitutional guarantee this to be done, and promised his tenant that she a municipal corporation cannot take or injure might remove the piano in the same way when private property in the exercise of its power to ever that should be necessary. improve its highways without first making com The lease on the piano having expired, plaintiff pensation, and that the right to injunctive relief in such a case exists without reference to the sol endeavored to remove it, but defendant while in sisting that the plaintiff must remove it, refused vency or insolvency of the municipality and re gardless of the consideration that the property to allow this to be done in the only way practi cable by refuging to allow any opening to be made owner might recover full compensatory damages by which it could be moved, the piano being so in an action of law. Furthermore, the court lays down the doctrine that where no compensation constructed that it could not be removed in sec tions without destruction, or in any other way has been made to a property owner for injury to than that in which it was placed in defendant's his property, by reason of a change of grade in a street, such property owner may require the city house. Plaintiff thereupon sought the aid of a court to restore the street to its former condition, as of equity to compel defendant to permit him to well as to enjoin further acts of damages. MUNICIPAL CORPORATIONS. (See Contracts.) ' etnove the piano in the way in which it was NEGLIGENCE. (Master and Servant.) N. Y. moved in. It was contended that plaintiff had an adequate remedy at law, but the court was of Sup. App. Div. — In Creswell v. United States the opinion that plaintiff could not obtain relief Shirt & Collar Company, too N. Y. Supp. 497, it by an action of replevin, as the officer would be was held that an employer was not liable for an under the same difficulty in removing the piano injury to an employee caused by a lever on a print as plaintiff himself. Furthermore, plaintiff ing press flying back and startling the employee could not maintain conversion since defendant operating it so that he voluntarily thrust his hand did not set up any adverse title to the piano or into some of the machinery of the press and was exercise any control over it, but on the other hand injured, as the injury could not reasonably have admitted plaintiff's ownership. Though defen been anticipated in the exercise of ordinary care dant had made no promise to plaintiff that the and prudence, since the press had been used for piano could be removed in the same manner as about nine years and no accident therewith had it was moved in, the court was of the opinion that ever occurred, and the lever never flew back prior as defendant had made such promise to the lessee to the accident. " Failure to guard against