Page images
PDF
EPUB

and 140 New York State Reporter

1. Acts constituting trespass and liability therefor. Mortgages held entitled to recover for defendant's malicious impairment of the mortgage security by cutting and removing timber from the mortgaged land.-Morgan v. Waters (Sup.) 882. § 2. Actions.

Under court rules a motion to transfer a cause from the general to the special calendar may be made either before or after the term for which the cause had been noticed.-Eisenstein v. Old Dominion S. S. Co. (City Ct.) 857.

Under Code Civ. Proc. § 324, and New York City court rule 1, a case held improperly noImpairing a mortgage security by cutting tim-ticed for trial under rule 2.-John Simmons Co. ber from the mortgaged premises is ground for V. Shattuck (City Ct.) 1032. an action in the nature of trespass on the case, by the mortgagee.-Morgan v. Waters (Sup.) 882.

TRESPASS TO TRY TITLE.

See "Ejectment."

TRIAL.

See "New Trial"; "Reference"; "Witnesses." Disputed claims against estate of decedent, see "Executors and Administrators," § 3.

Proceedings incident to trials.

See "Continuance."

Entry of judgment after trial of issues, see "Judgment," § 2.

Place of trial, see "Venue," § 1.
Right to trial by jury, see "Jury," § 1.

Trial of actions by or against particular classes of persons.

See "Carriers," § 3; "Master and Servant.".$ 11; "Municipal Corporations," $7; "Railroads," §§ 4, 5; "Street Railroads," § 2. National bank, see "Banks and Banking," § 2. Trial of particular civil actions or proceedings. See "Libel and Slander," § 3; "Malicious Prosecution," § 2; "Negligence," § 3. For breach of liquor tax certificate bond, see "Intoxicating Liquors," § 2.

For death of passenger, see "Carriers," § 3. For death of servant, see "Master and Servant," § 11.

For injuries caused by negligent construction of culvert, see "Railroads," § 4.

For injuries from flooding of land, see "Waters and Water Courses," § 2.

For personal injuries, see "Carriers," § 3; "Master and Servant," § 11; "Municipal Corporations." $ 7; "Railroads," § 5; "Street Railroads," § 2.

For price of goods sold, see "Sales," § 3. For wrongful payment of forged check, see "Banks and Banking," § 2.

On contract modified by agent, see "Principal and Agent," § 1.

Probate proceedings, see "Wills," § 4.

§ 1. Dockets, lists, and calendars. Under Code Civ. Proc. subd. 1, §§ 791, 793, relating to preferences in certain actions, held that in an action by the people to test the title of defendant to the office of mayor the court should by order name a day of the term on which the case will be moved for immediate trial.-People v. McClellan (Sup.) 200.

§ 2. Reception of evidence.

In a suit to restrain the erection of a telephone pole in the street in front of plaintiff's property, plaintiff held not entitled to object for the first time on the argument that there was no evidence but that the locus in quo had the characteristics of a rural highway.-Gannett v. Independent Telephone Co. of Syracuse (Sup.) 3.

*In an action to recover damages on defendant's warranty of authority to sell certain land, evidence to prove a conceded fact held properly excluded.-Rowland v. Hall (Sup.) 55.

In an action for malicious prosecution, the overruling of an objection to a question held proper. Smith v. New York Anti-Saloon League (Sup.) 251.

*A question being leading, though calling for competent evidence, held the sustaining of a general objection to it is not error.-Harris v. Hirsch (Sup.) 631.

§ 3. Arguments and conduct of counsel. that he would rely on a certain proposition *A statement of plaintiff's counsel in opening held not to preclude him from litigating the question on other grounds.-Meeks v. Meeks (Sup.) 907.

§ 4. Taking case or question from jury. *Where the sufficiency of facts stated in a complaint to constitute a cause of action is in issue, every allegation of fact contained in the pleading must be taken as admitted, and plaintiffs are entitled to the benefit of every fair and reasonable presumption which may be justifiably implied therefrom.-Locker v. American Tobacco Co. (Sup.) 115.

tions for the court.-Outhouse v. Baird (Sup.) *The judge cannot turn over to the jury ques

246.

In an action for malicious prosecution, it was proper to instruct that there was no probable cause for the prosecution where it was undis puted that plaintiff did not sell liquor in a hotel as charged in the complaint against him.-Smith v. New York Anti-Saloon League (Sup.) 251.

*On motion for nonsuit, plaintiff is entitled to the most favorable inferences deducible from the evidence, and contested facts are to be presumed in his favor.-Janvey v. Loketz (Sup.) 690.

*The question of the weight of evidence is for the jury, and they may believe one witness, even though he be a party, as against a number of other witnesses.-New York Evening Journal Pub. Co. v. William F. Simpson Advertising Agency (City Ct.) 858.

*Point annotated. See syllabus.

[blocks in formation]

5. Verdict.

*A finding that a machine was not dangerous is inconsistent with a finding that it was not a safe machine on which a boy should work in the absence of evidence that he was not sui juris.-Fortune v. Hall (Sup.) 787.

§ 6. Waiver and correction of irregularities and errors.

An instruction in an action for injuries to a servant, that the jury might consider the fact that the rolls of the machine by which he was injured were not covered, but not that it was a violation of Labor Law, Laws 1897, p. 461, c. 415, held not to cure error in the admission of evidence that similar machines were guarded in defendant's factory and in other factories. Martin v. Walker & Williams Mfg. Co. (Sup.)

708.

TRUST COMPANIES.

See "Banks and Banking," § 3.

TRUSTS.

Combinations to monopolize trade, see "Mo-
nopolies," § 1.

Conveyance in trust for creditors, see "Assign-
ments for Benefit of Creditors."
Creation by will, see "Wills," § 5.

Effect of trust on limitation, see "Limitation
of Actions," § 1.

Trust deeds, see "Chattel Mortgages"; "Mortgages."

§ 1. Creation, existence, and validity. Where a testatrix devised her land to a trustee with power to sell, with the consent of her son, but did not dispose of the corpus, and the son died before consenting to a sale the power of sale and the trust terminated with his death.

Wells v. Brooklyn Union Elevated R. Co. (Sup.) 77.

Reservation in a deed of the grantor's right to damages from a railroad for invasion of easements by use of a railroad viaduct in a street held to create a trust of the proceeds recovered by the grantee for such invasion for the grantor's benefit.-Wehrenberg v. Seiferd (Sup.) 901. *Facts held to make out strong case for charging grantee in deed as trustee ex maleficio.Grote v. Grote (Sup.) 986.

Grantor held entitled to equitable relief on refusal of grantee to perform agreement constituting consideration for conveyance.-Grote v. Grote (Sup.) 986.

§ 2. Execution of trust by trustee or by

court.

*It is the duty of a trustee of a testamentary trust to provide a fund from the income to pro

1229

tect the principal of the trust fund against depreciation through investment at a premium.— Dexter v. Watson (Sup.) 80.

Where property was held in trust, the income the principal was to be paid to his surviving to be paid to the beneficiary and at his death issue, on such death the income so far as accrued was payable with the principal to the surviving issue of such beneficiary in equal proportions.-Bassett v. Wells (Sup.) 1068.

§ 3. Accounting and compensation of

trustee.

Where a grantee sued a railroad company for invasion of easements and recovered judgment, the proceeds of which he held for the grantor, he was entitled to credit for necessary disbursements and counsel fees, but was not entitled to fees as trustee nor to interest on the compensation paid to counsel.-Wehrenberg v. Seiferd (Sup.) 901.

*The right of a grantor, making a conveyance in consideration of an agreement of the grantee that she would give the grantor board to an accounting of the income of the property and lodging as long as required by the grantor, or the proceeds thereof on refusal of the grantee to perform her agreement, is a right enforceable only in equity.--Grote v. Grote (Sup.) 986. § 4. Establishment and enforcement of trust.

*Sale of trust property held not to prevent cestui que trust from obtaining equitable relief tified. Grote v. Grote (Sup.) 986. where proceeds of sale could be traced and iden

In an action to compel trustees to account, etc., plaintiff held required to accept a payment of income pendente lite if at all charged with the legal consequences thereof, and was not entitled to an order directing payment without prejudice to the rights of any of the parties to the action.-In re Ungrich (Sup.) 1051; Ungrich v. Ungrich, Id.

[blocks in formation]

Procuring making of will, see "Wills," § 3. *Point annotated. See syllabus.

and 140 New York State Reporter

UNFAIR COMPETITION.

Se "Trade-Marks and Trade-Names," § 3.

UNIONS.

See "Trade Unions."

UNITED STATES.

Courts, see "Courts," § 5.

Indians, see "Indians."

VACATION.

Of particular acts, instruments, or proceedings. See "Execution," § 1; "Injunction," § 4; "Judgment," § 1.

VARIANCE.

*Violations of the Tenement House Act, Laws 1901, p. 889, c. 334, held not such a defect of title as to justify refusal to accept property under an agreement to convey good title.-Woodenbury v. Spier (Sup.) 817.

*A lis pendens for the enforcement of Tenement House Act, Laws 1901, p. 889, c. 334, under the evidence, held not an incumbrance on the property.-Woodenbury v. Spier (Sup.) 817. § 4. Performance of contract.

*A defect in a title because of unpaid taxes is not cured by deducting the amount thereof from the price, but the purchaser may rescind and recover the money paid.-Berger v. Crist (Sup.) 107.

*Action by vendee to recover deposit because of alleged defects in title dismissed.-Worm.ser v. Gehri (Sup.) 295.

A writing held not to show a valid extension of a mortgage or acknowledgment of part payment thereof, and hence a contract for the sale of the premises, providing that the pur

Between pleading and proof in action for breach chase price should be paid in part by the asof contract, see "Contracts," § 6.

VENDOR AND PURCHASER.

See "Sales."

Grantee in deed as person concluded by judgment, see "Judgment," § 5. Guaranty of contract for sale of land, see "Guaranty," § 1.

Payment of compensation of broker, see "Brokers,' § 3.

Reception of evidence in action for damages for breach of warranty of authority to sell land, see "Trial," § 2.

Requirements of statute of frauds, see "Frauds, Statute of," § 1.

Sale of property belonging to decedent's estate, see "Executors and Administrators," § 2. Specific performance of contract, see "Specific

Performance."

§ 1. Requisites and validity of contract. *A contract for conveyance of land held not invalid as lacking mutuality.-Bryan v. Carroll (Sup.) 668.

§ 2. Construction and operation of contract.

A contract of sale of land held not too indefinite, to be binding, as to method of conveyance. -Northrup v. Mead (Sup.) 150.

*A contract for sale of land for $1,000 per acre, the size of the tract to be ascertained by a survey, held a contract for the whole tract within the boundaries described, and not to be avoided because the survey showed the tract to contain 95 acres, while it was stated in the contract to contain about 80 acres.-Sheindelman v. Colyer (Sup.) 762.

§ 3. Modification or rescission of contract.

*A purchaser in a contract for the purchase of real estate held entitled on the failure of the vendor to cure defects in the title to rescind and recover back the money paid.-Berger v. Crist (Sup.) 107.

sumption of two mortgages, the time of payment of which had been extended, and on which part payment had been made, was not as to such mortgage complied with, and vendee was justified in refusing the deed.-Piza v. Lubelsky (Sup.) 481.

§ 5. Remedies of vendor.

Plaintiff held entitled to sue to foreclose defendants' interest in land and have it sold to satisfy the amount due him on defendants' intestate's contract to buy the land.-Bryan v. Carroll (Sup.) 668.

8 6. Remedies of purchaser.

Demand on the heirs of a vendor for performance held necessary before the vendee can sue, as for a rescission, to recover payments made.Northrup v. Mead (Sup.) 150.

Surrender of possession by the vendee held necessary before he can sue, as for a rescission, for recovery of payments made.-Northrup v. Mead (Sup.) 150.

VENUE.

Injunction to effect change of venue, see "Injunction," § 2. Of criminal prosecutions, see "Criminal Law," § 1.

8 1. Change of venue or place of trial. Parties held to have waived their right to move for a change of venue.-Schaaf v. Denniston (Sup.) 168.

VERDICT.

Directing verdict in civil actions, see "Trial."
§ 4.

In civil actions, see "Trial," § 5.
Irregularities or defects ground for new trial,
see "New Trial," § 1.

Review on appeal, see "Appeal." § 8.
Setting aside, see "New Trial," § 1.
*Point annotated. See syllabus.

[blocks in formation]

Right to protection against disclosure of vote, Discharge of surface waters from railroad track see "Witnesses," § 2.

[blocks in formation]

as nuisance, see "Nuisance," § 1.

Extra allowances in action for injuries caused by overflow, see "Costs," § 3.

Liability of state for injuries caused by operation of dam, see "States," § 1.

§ 1. Subterranean and percolating wa

ters.

Intercepting percolating waters of adjoining land held damnum absque injuria.-Hathorn v. Dr. Strong's Saratoga Springs Sanitarium (Sup.) 553.

*Plaintiff held entitled to injunction restraining defendants from operating a pump diverting water from plaintiff's spring. Hathorn v. Dr. Strong's Saratoga Springs Sanitarium (Sup.) 553.

2. Artificial ponds, reservoirs, and channels, dams, and flowage.

A judgment in an action against a railroad for overflowing an owner's land held erroneous as giving relief to the owner to which he was not entitled.-Cooper v. New York, L. & W. Ry. Co. (Sup.) 611; Same v. Delaware, L. & W. R. Co., Id.

In an action against a railroad for overflowing an owner's land, evidence held not to support the damages allowed for fences and for loss in rental value.-Cooper v. New York, L. & W. Ry. Co. (Sup.) 611; Same v. Delaware, L. & W. R. Co., Id.

In an action against a railroad for overflowing an owner's land, evidence held not to support the damages awarded for the depreciation in the value of the land.-Cooper v. New York, L. & W. Ry. Co. (Sup.) 611; Same v. Delaware, L. & W. R. Co., Id.

Whether a railroad erecting and maintaining a bridge across a stream negligently aligned the piers and abutments thereof, and thereby caused the land of another to be overflowed, held, on the evidence, a question of fact, for determination by the referee.-Cooper v. New York, L. & W. Ry. Co. (Sup.) 611; Same v. Delaware, L. & W. R. Co., Id.

*Point annotated. See syllabus.

WAYS.

and 140 New York State Reporter

Private rights of way, see "Easements."

presumption that he practiced undue influence on testator.-In re Thompson's Will (Sup.) 111. *Evidence examined, and held insufficient to

Public ways, see "Highways"; "Municipal Cor- show that the execution of a will was obtained porations," § 6.

WELLS.

Nominal damages for breach of contract to advance money for boring oil well, see "Damages," § 1.

WHARVES.

Condition and use of piers of municipal corporation, see "Municipal Corporations," § 7.

WILLS.

See "Descent and Distribution"; "Executors and Administrators."

Barring of right of legatee by limitations to require an executor to account, see "Limitation of Actions," § 1.

by undue influence.-In re Thompson's Will (Sup.) 111.

That testatrix's will named her attorney executor held not to raise a presumption of undue influence against the will.-In re Marlor's Will (Sup.) 131.

*Revocation of probate of will because of undue influence denied.-In re Wilcox's Estate (Sur.) 468.

[blocks in formation]

*The probate of a last will will be set aside Construction and execution of powers, see "Pow- incapacity of the testator or the exercise of unonly where there is substantial proof of mental due influence.-Shayne v. Shayne (Sup.) 34.

ers." § 2. Construction "Trusts."

and execution of trusts, see

Courts of probate, see "Courts," § 4. Equitable conversion, see "Conversion." Legacy and succession taxes, see "Taxation," § 5. Restriction on perpetuities, see "Perpetuities." Right of devisee to maintain partition, see "Partition," § 1.

Termination of power created by will, see "Powers," § 1.

§ 1. Nature and extent of testamentary power.

Where testator gave the residue of his estate to his wife for life, and then made certain charitable bequests, computation to determine excess thereof, under Laws 1860, p. 607, c. 360, should be based on the actual duration of the life estate and not on the probability of its duration at the testator's death.-In re Runk (Sur.) 851.

§ 2. Testamentary capacity.

*A will by a drunkard is valid, if at the time of its execution he knew the nature and disposition of his estate and his relations to those having any claim on his bounty. In re Tifft's Will (Sur.) 362.

Will admitted to probate against the objection that testator's testamentary capacity was affected by his habits of habitual intoxication. -In re Tifft's Will (Sur.) 362.

*Evidence held insufficient to show incompetency of testator on account of drunkenness.In re Feeney's Will (Sur.) 464.

* Evidence held insufficient to show mental incapacity of testator.-In re Armstrong's Will (Sur.) 671.

3. Requisites and validity.

The mere fact that the draughtsman of a will is made executor or a trustee does not raise any

*In an action under Code Civ. Proc. § 2653a, to set aside probate of codicil, plaintiff must overcome the presumption of the due execution by a preponderance of the evidence.-Shayne v. Shayne (Sup.) 34.

Legatee under Code Civ. Proc. § 2617, cannot intervene to oppose probate of will where he would acquire less under a prior will of testator.-In re Hoyt's Will (Sur.) 359.

*Where expert testimony as to the testamentary capacity of testator is in conflict with that of subscribing witnesses, one of whom is a physician, the testimony of the subscribing witnesses should prevail.-In re Tifft's Will (Sur.) 362.

the surrogate has no jurisdiction to construe *In a proceeding for the revocation of a will, its provisions. In re Wilcox's Estate (Sur.)

468.

*Will offered for probate executed by a mark, the attesting witness being dead, admitted to probate under Code Civ. Proc. § 2620.-In re Foley's Will (Sur.) 474.

*Husband alone held entitled to object to bequest of more than one-half of wife's estate to a religious corporation as in violation of Laws 1860, p. 607, c. 360.-In re Eldredge's Estate (Sur.) 1036.

§ 5. Construction.

Will construed, and on death of remainderman pending the life of the life tenant his share passed to his children and the devisees of the testator free from all claims of his creditors.— Hall v. Senior (Sup.) 29.

*Will construed, and held to show no intent to charge a legacy on the real estate.-Bankers' Trust Co. v. Dietz (Sup.) 32.

Will construed, and held that share of deceased grandchild dying after testator without *Point annotated. See syllabus.

« PreviousContinue »