FIRST DEPARTMENT, JUNE, 1904. [Vol. 96. was served with the answer in compliance with the section of the Code of Civil Procedure above referred to. That section provides, in substance, that in an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory note or other evidence of debt for the absolute payment of money at a particular time the plaintiff may take judgment as in case of default in pleading at the expiration of twenty days after service of a copy of the complaint, unless the defendant serves with a copy of his answer or demurrer a copy of an order of a judge directing that the issues raised by the pleadings be tried. The conclusion at which we have arrived renders it unnecessary to determine at this time whether the certificate is of the character claimed by the plaintiff, because if it is the plaintiff was not entitled to enter judgment inasmuch as he was bound to prove, in addition to it, facts which did not appear thereon, viz., that it should have been dated February 3, 1897, instead of December 1, 1899. It is only where the instrument upon its face shows that the plaintiff is entitled to the amount sought to be recovered that judgment can be entered as by default if an order is not served directing that the issues be tried. It has been held that this provision of the Code of Civil Procedure has no application to an answer served by a corporation in an action brought against it as indorser of a promissory note (Shorer v. Times Printing & Publishing Co., 119 N. Y. 483) or to an insurance policy, though the policy has become due by the death of the insured, and that "it is to be confined strictly to actions upon instruments which admit on their face an existing debt payable absolutely." (New York Life Ins. Co. v. Universal Life Ins. Co., 88 N. Y. 424.) Here this certificate, even if of the character claimed by the plaintiff, did not entitle the plaintiff to recover until he had proved, independent of it, that there was a mistake in the date and that by reason thereof the seventy-two months had expired before the notice was given. I am also of the opinion that the retention of the answer precluded the plaintiff from treating it as a nullity. Defendant had a right to assume when the answer was not returned that it had been properly served. If the plaintiff intended to treat it as a nullity, then he should have promptly returned it to the defendant at the App. Div.] same time stating his reasons therefor. Fairness and good practice at least required this. The order appealed from, therefore, should be affirmed, with ten dollars costs and disbursements. O'BRIEN, INGRAHAM, HATCH and LAUGHLIN, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. THE PEOPLE OF THE STATE OF NEW YORK ex rel. FANNIE MENDELOVICH, Respondent, v. NATHAN ABRAHAMS, Appellant. a physi Bastardy proceedings — proof necessary to sustain an order of filiation· cian may testify to a statement by the mother as to the person responsible for her condition. A bastardy proceeding is a quasi criminal one, and an order of filiation should not be rendered against the defendant therein except upon testimony which is entirely satisfactory. Where the mother of the child claims that the illicit act took place August 15, 1902, a practicing physician whom the mother consulted in September or October, 1902, is not precluded, by section 834 of the Code of Civil Procedure, from answering the following question: "In that conversation did she make any charge against any person as being the cause of her condition at that time?" as the information sought to be elicited by the question was not information acquired by the doctor which was necessary to enable him to act as such. APPEAL by the defendant, Nathan Abrahams, from an order of the Court of Special Sessions of the Peace in and for the city and county of New York, entered on the 13th day of January, 1904. H. M. Haviland, for the appellant. Herman Stiefel, for the respondent. MCLAUGHLIN, J.: This appeal is from an order of filiation made by the Court of Special Sessions for the first division in the city of New York, adjudging the defendant to be the father of a bastard child and directing that he pay the sum of one dollar and twenty-five cents per week for the support of the child. FIRST DEPARTMENT, JUNE, 1904. [Vol. 96. I am of the opinion that the order appealed from should be reversed and a new trial ordered. The conviction of the defendant rests substantially upon the uncorroborated testimony of the mother of the child, which, taken in connection with her contradictory statements, makes it very uncertain whether justice has been done the defendant. There have been two trials. Upon the first trial the mother testified that the alleged act was committed on the 15th day of September, 1902. The result of that trial was an order similar to the one here appealed from. The child was born on the 15th day of May, 1903, and thereafter the Court of Special Sessions vacated the order of filiation and directed a new trial, presumably on the ground of the unreliability of the mother's testimony. Upon the second trial the mother testified that the alleged act took place on the 15th day of August, 1902, and the only explanation of the change thus made in her testimony was that on the former trial she was mistaken as to the time. The proceeding is a quasi criminal one, and a defendant ought not to have such a judgment rendered against him except upon testimony which is entirely satisfactory. The testimony of the mother, that the alleged act took place on the 15th day of August, 1902, was sought to be corroborated in some respects by the testimony of Dr. Gross, who testified that she consulted him as to her condition on the 19th day of August, 1902; that he remembered the date because he made a memorandum of it. The memorandum, however, was not produced, nor was its absence accounted for. The defendant, while admitting that he had been intimate with the mother, testified that he never met her until the 15th day of October, 1902. This being the condition of the testimony on both sides, I am of the opinion that the court erred in sustaining the objection to the question put to Dr. Schoenberg. He testified that in 1902 he was a practicing physician and in September or October of that year the mother of the child had a consultation with him. He was then asked: "In that conversation did she make any charge against any person as being the cause of her condition at that time?" This was objected to, no ground being stated, the objection sustained and defendant excepted. It is sought to sustain this ruling upon the App. Div.] FIRST DEPARTMENT, JUNE, 1904. * * ground that the answer was not admissible under section 834 of the Code of Civil Procedure. That section provides: "A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired * in a professional capacity and which was necessary to enable him to act in that capacity." The testimony here sought to be elicited was not information acquired by the doctor which was necessary to enable him to act as such. It needs no argument to demonstrate such fact, and its exclusion may have done great injustice to the defendant. He testified that he never met the mother until the 15th day of October, 1902. The question called for a statement made by her in September or October of that year, and if she stated to the doctor at that time that some other person than the defendant was the cause of her condition it is possible the court would have reached a different conclusion from the one it did. In any event the testimony was admissible and for the error comnitted in excluding it a new trial must be had. The order of filiation is, therefore, vacated and set aside and a new trial ordered. VAN BRUNT, P. J., PATTERSON and LAUGHLIN, JJ., concurred; INGRAHAM, J., concurred in result. Order vacated and set aside and new trial ordered. In the Matter of the Transfer Tax on the Estate of JOSEPH J. LawRENCE, Deceased. SEBASTIAN D. LAWRENCE, as Executor of and Trustee under the Last Will and Testament of JOSEPH J. LAWRENCE, Deceased, Appellant; THE COMPTROLLER OF THE STATE OF NEW YORK, Respondent. - Transfer tax - the report of an appraiser when confirmed by the Surrogate's Court is conclusive on the Comptroller and executor· - while it stands a new proceeding for an appraisal cannot be instituted. Where an appraiser, appointed for the purpose of fixing the transfer tax upon the estate of a testator whose will created certain trusts, files a report by which he finds that the value of the interests of the life beneficiaries could not then be ascertained and that the remaindermen were indefinite and uncertain, and that, FIRST DEPARTMENT, JUNE, 1904. [Vol. 96. for these reasons, the tax could not then be determined, and such report is confirmed by an order from which no appeal is taken, such order is, in effect, a final determination on the subject and is binding upon the Comptroller and the executor as long as the estate remains in the condition in which it was at the time the order was made. The effect of such an order cannot, while the situation of the estate remains unchanged, be avoided by instituting a new proceeding to determine the transfer tax upon the estate and procuring the referee appointed in such new proceeding to make a different report. APPEAL by Sebastian D. Lawrence, as executor of and trustee under the last will and testament of Joseph J. Lawrence, deceased, from an order of the Surrogate's Court of the county of New York, entered in said Surrogate's Court on the 25th day of April, 1904, assessing a transfer tax upon the income actually paid over to the several beneficiaries under the will of the said deceased. George W. Van Slyck, for the appellant. Emmet R. Olcott, for the respondent. MCLAUGHLIN, J.: On the 7th day of December, 1893, Joseph J. Lawrence, a resident of the county of New York, died, leaving a last will and testament, which was thereafter admitted to probate and letters testamentary issued to the executor therein named. By the 3d clause of his will he gave to his executor in trust the sum of $30,000 to invest and pay the income therefrom to his stepdaughter, Ethel King Hepburn, so long as she should live or until she married, and thereafter directed that the principal sum should become part of the residue of his estate to be disposed of as provided in the residuary clause of his will. The residue of his estate he disposed of as follows: He gave the same to his executor in trust to invest and keep the same invested and to pay over the income therefrom to his daughters Nanine, Sarah and Josephine, share and share alike, until his daughter Josephine should attain the age of thirty-five years or until her death, should she die before attaining such age, and in the event of the death of either of the daughters Nanine or Sarah during such period, leaving issue, the income to which the |