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and 140 New York State Reporter § 1. Acts constituting trespass and lia Under court rules a motion to transfer a cause bility therefor.

from the general to the special calendar may Mortgages held entitled to recover for defend- be made either before or after the term for ant's malicious impairment of the mortgage se- which the cause had been noticed. -Eisenstein curity by cutting and removing timber from the v. Old Dominion S. S. Co. (City Ct.) 857. mortgaged land.-Morgan v. Waters (Sup.) 882.

Under Code Civ. Proc. $ 324, and New York 8 2. Actions.

City court rule 1, a case held improperly noImpairing a mortgage security by cutting tim- ticed for trial under rule 2.-John Siminons Co. ber from the mortgaged premises is ground for v. Shattuck (City Ct.) 1032. an action in the nature of trespass on the case. § 2. Reception of evidence. by the mortgagee.-Morgan v. Waters (Sup.) 882.

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 TRESPASS TO TRY TITLE. the first time on the argument that there was

no evidence but that the locus in quo had the See "Ejectment."

characteristics of a rural highway.-Gannetty.

Independent Telephone Co. of Syracuse (Sup.) 3. TRIAL.

*In an action to recover damages on defend

ant's warranty of authority to sell certain land, See “New Trial"; "Reference"; "Witnesses."

evidence to prove a conceded fact held properly

excluded.-Rowland v. Hall (Sup.) 55. Disputed claims against estate of decedent, see “Executors and Administrators," $ 3.

In an action for malicious prosecution, the Proceedings incident to trials.

overruling of an objection to a question held

proper.-Smith v. New York Anti-Saloon League See “Continuance."

(Sup.) 251. Entry of judgment after trial of issues, see "Judgment," $ 2.

*A question being leading, though calling for Place of trial, see "Venue," $ 1.

competent evidence, held the sustaining of a Right to trial by jury, see “Jury," $ 1.

general objection to it is not error.-Harris v.

Hirsch (Sup.) 631. Trial of actions by or against particular classes of persons.

§ 3. Arguments and conduct of counsel. See “Carriers," $ 3; “Master and Servant.” S that he would rely on a certain proposition

*A statement of plaintiff's counsel in opening 11; Municipal Corporations,” ? "Rail- held not to preclude him from litigating the roads," 88 4, 5; “Street Railroads," $ 2.

question on other grounds.--Meeks v. Meeks National bank, see “Banks and Banking," $ 2. (Sup.) 907. Trial of particular civil actions or proceedings. 8 4. Taking case or question from jury. See “Libel and Slander," $ 3: “Malicious Prose *Where the sufficiency of facts stated in a cution," $ 2; “Negligence," $ 3.

complaint to constitute a cause of action is in For breach of liquor tax certificate bond, see | issue, every allegation of fact contained in the "Intoxicating Liquors," § 2.

pleading must be taken as admitted, and plainFor death of passenger, see “Carriers," $ 3. tiffs are entitled to the benefit of every fair and For death of servant, see "Master and Servant," reasonable presumption which may be justifi$ 11.

ably implied therefrom.-Locker V. American For injuries caused by negligent construction of Tobacco Co. (Sup.) 115.

culvert, see “Railroads," $ 4. For injuries from flooding of land, see "Waters tions for the court.-Outhouse v. Baird (Sup.)

*The judge cannot turn over to the jury quesand Water Courses," $ 2.

246. For personal injuries. see "Carriers," 8 3; "Master and Servant," ş 11; Municipal Cor

In an action for malicious prosecution, it was porations," § 7; "Railroads," $ 5; "Street proper to instruct that there was no probable Railroads," $ 2.

cause for the prosecution where it was undis. For price of goods sold, see "Sales," $ 3.

puted that plaintiff did not sell liquor in a hotel For wrongful payment of forged check, see as charged in the complaint against him.-Smith “Banks and Banking," $ 2.

v. New York Anti-Saloon League (Sup.) 231. On contract modified by agent, see "Principal

*On motion for nonsuit, plaintiff is entitled and Agent," $ 1.

to

the most favorable inferences deducible Probate proceedings, see "Wills," $ 4.

from the evidence, and contested facts are $ 1. Dockets, lists, and calendars.

be presumed in his favor.–Janvey v. Loketz Under Code Civ. Proc. subd. 1, $$ 791, 793, (Sup.) 690. relating to preferences in certain actions, held *The question of the weight of evidence is that in an action by the people to test the title for the jury, and they may believe one witness, of defendant to the office of mayor the court even though he be a party, as against a number should by order name a day of the term on of other witnesses.- New York Evening Journal which the case will be moved for immediate Pub. Co. v. William F. Simpson Advertising trial.-People v. McClellan (Sup.) 200.

Agency (City Ct.) 8JS. *Point annotated. See syllabus.

to

*A verdict cannot be directed for a party, tect the principal of the trust fund against dewhatever the weight of evidence in his favor, preciation through investment at a premium.-where evidence has been given on the other side Dexter v. Watson (Sup.) 80. which presents an issue of fact upon which the jury could properly proceed to find a verdict.

Where property was held in trust, the income New York Evening Journal Pub. Co. v. Wil- to be paid to the beneficiary and at his death liam F. Simpson Advertising Agency (City Ct.) the principal was to be paid to his surviving 838.

issue, on such death the income so far as ac

crued was payable with the principal to the § 5. Verdict.

surviving issue of such beneficiary in equal pro*A finding that a machine was not dangerous portions.-Bassett v. Wells (Sup.) 1068. is inconsistent with a finding that it was not a safe machine on which a boy should work in § 3. Accounting and compensation of the absence of evidence that he was not sui

trustee. juris.-Fortune v. Hall (Sup.) 787.

Where a grantee sued a railroad company for

invasion of easements and recovered judgment, 8 6. Waiver and correction of irregu- the proceeds of which he held for the grantor, larities and errors.

he was entitled to credit for necessary disburseAn instruction in an action for injuries to a ments and counsel fees, but was not entitled servant, that the jury might consider the fact to fees as trustee nor to interest on the compenthat the rolls of the machine by which he was sation paid to counsel.-Wehrenberg v. Seiferd injured were not covered, but not that it was (Sup.) 901. a violation of Labor Law, Laws 1897, p. 461, C. 415, held not to cure error in the admission

*The right of a grantor, making a conveyof evidence that similar machines were guarded ance in consideration of an agreement of the in defendant's factory and in other factories. - grantee that she would give the grantor board Martin v. Walker & Williams Mfg. Co. (Sup.) and lodging as long as required by the grantor. 708.

to an accounting of the income of the property

or the proceeds thereof on refusal of the grantee TRUST COMPANIES.

to perform her agreement, is a right enforce

able only in equity.--Grote v. Grote (Sup.) 986. See "Banks and Banking," $ 3.

§ 4. Establishment and enforcement of

trust. TRUSTS.

*Sale of trust property held not to prevent

cestui que trust from obtaining equitable relief Combinations to monopolize trade, see “Mo- where proceeds of sale could be traced and idennopolies," $ 1.

tified.--Grote v. Grote (Sup.) 986. Conveyance in trust for creditors, see “Assign In an action to compel trustees to account, ments for Benefit of Creditors."

etc., plaintiff held required to accept a payCreation by will, see "Wills," $ 5.

ment of income pendente lite if at all charged Effect of trust on limitation, see "Limitation with the legal consequences thereof, and was not of Actions," $ 1.

entitled to an order directing payment without Trust deeds, see "Chattel Mortgages"; "Mort- prejudice to the rights of any of the parties gages.”

to the action.-In re Ungrich (Sup.) 1051; C'n8 1. Creation, existence, and validity.

grich v. Ungrich, Id. Where a testatrix devised her land to a trus. tee with power to sell, with the consent of her

TUNNELS. 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. Change in construction as releasing contractor's --Wells v. Brooklyn Union Elevated R. Co.

surety, see “Principal and Surety," $ 1. (Sup.) 77.

Construction by railroad company, see “Rail

roads," $81, 3. Reservation in a deed of the grantor's right Enactment and validity of laws authorizing conto damages from a railroad for invasion of ease struction of, see “Statutes," $ 1. ments by use of a railroad viaduct in a street heid to create a trust of the proceeds recovered by the grantee for such invasion for the gran

ULTRA VIRES. tor's benefit.-Wehrenberg v. Seiferd (Sup.) 901.

*Facts held to make out strong case for charg- Act of trust company, see “Banks and Banking grantee in deed as trustee ex maleficio. ing," $ 3. Grote v. Grote (Sup.) 986. Grantor held entitled to equitable relief on

UNDISCLOSED AGENCY. refusal of grantee to perform agreement constituting consideration for conveyance.-Grote v. Grote (Sup.) 986.

See “Principal and Agent," § 1. § 2. Execution of trust by trustee or by court.

UNDUE INFLUENCE. *It is the duty of a trustee of a testamentary trust to provide a fund from the income to pro- Procuring making of will, see "Wills," $ 3.

*Point annotated. See syllabus.

and 140 New York State Reporter UNFAIR COMPETITION.

*Violations of the Tenement House Act. Laws

1901, p. 859, c. 334, held not such a defect of Se "Trade-Marks and Trade-Names,” g 3. title as to justify refusal to accept property un

der an agreement to convey good title.-WoodenUNIONS.

bury v. Spier (Sup.) 817.

*A lis pendens for the enforcement of TeneSee “Trade Unions."

ment House Act, Laws 1901, p. 889, c. 33+, under the evidence, held not an incumbrance on

the property.-Woodenbury v. Spier (Sup.) 817. UNITED STATES.

& 4. Performance of contract. Courts, see "Courts," $ 5.

*A defect in a title because of unpaid taxes

is not cured by deducting the amount thereof Indians, see "Indians."

from the price, but the purchaser may rescind

and recover the money paid.—Berger v. Crist VACATION.

(Sup.) 107. of particular acts, instruments, or proceedings of alleged defects in title dismissed.-Wormser

* Action by vendee to recover deposit because See "Execution," 1; "Injunction," § 4; “Judg- v. Gehri (Sup.) 295. ment," $ 1.

A writing held not to show a valid extenVARIANCE.

sion of a mortgage or acknowledgment of part

payment thereof, and hence a contract for the Between pleading and proof in action for breach sale of the premises, providing that the purof contract, see “Contracts," $ 6.

chase price should be paid in part by the assumption of two mortgages, the time of pay.

ment of which had been extended, and on VENDOR AND PURCHASER. which part payment had been made, was not

as to such mortgage complied with, and vender See “Sales."

was justified in refusing the deed.-Piza v. LuGrantee in deed as person concluded by judg- belsky (Sup.) 481.

ment, see "Judgment," $ 5. Guaranty of contract for sale of land, see "Guar- $ 5. Remedies of vendor. anty," $ 1.

Plaintiff held entitled to sue to foreclose dePayment of compensation of broker, see "Bro- fendants' interest in land and have it sold to kers," $ 3.

satisfy the amount due him on defendants' inReception of evidence in action for damages for testate's contract to buy the land.-Bryan .

breach of warranty of authority to sell land, Carroll (Sup.) 668.

see “Trial," $ 2. Requirements of statute of frauds, see “Frauds, $ 6. Remedies of purchaser. Statute of," 1.

Demand on the heirs of a vendor for performSale of property belonging to decedent's estate, ance held necessary before the vendee can sue, see "Executors and Administrators," $ 2.

as for a rescission, to recover payments made.Specific performance of contract, see “Specific Northrup v. Mead (Sup.) 150. Performance."

Surrender of possession by the vendee held § 1. Requisites and validity of contract. necessary before he can sue, as for a rescission, *A contract for conveyance of land held not

for recovery of payments made.-Northrup v. invalid as lacking mutuality.-Bryan v. Carroll

Mead (Sup.) 150. (Sup.) 668. § 2. Construction and operation of con

VENUE. tract. A contract of sale of land held not too indefi- Injunction to effect change of venue, see "Innite, to be binding, as to method of conveyance. of criminal prosecutions, see "Criminal Law,"

junction," $ 2. -Northrup v. Mead (Sup.) 150.

§ 1. *A contract for sale of land for $1.000 per acre, the size of the tract to be ascertained by s 1. Change of venue or place of trial. a survey, held a contract for the whole tract

Parties held to have waived their right to within the boundaries described, and not to be move for a change of venue.-Schaaf y. Denavoided because the survey showed the tract to niston (Sup.) 108. contain 95 acres, while it was stated in the contract to contain about 80 acres.-Sheindelman v. Colyer (Sup.) 762.

VERDICT. § 3. Modification or rescission of con Directing verdict in civil actions, see "Trial." tract.

§ 4. *A purchaser in a contract for the purchase In civil actions, see “Trial," $ 5. of real estate held entitled on the failure of the Irregularities or defects ground for new trial, vendor to cure defects in the title to rescind see "New Trial," $ 1. and recover back the money paid.-Berger v. Review on appeal, see "Appeal." $ 8. Crist (Sup.) 107.

Setting aside, see “New Trial," § i. *Point annotated. See syllabus.

VERIFICATION.

Where selling agents in possession of goods

belonging to plaintiffs stored the same with other Of pleading, see “Pleading," $ 6.

goods belonging to the agents, the warehouse

man was not entitled to a lien on plaintiffs' VESTED REMAINDERS.

goods for storage charges on all the goods
stored, under Laws 1902, p. 1776, c. 608, 8 2.-

Schwab v. Oatman (Sup.) 741.
Creation, see “Wills," $ 5.
VICE PRINCIPALS.

WARRANT.
See "Master and Servant," $ 5.

County warrants, see "Counties," $ 3.

For arrest by coroner, see “Coroners.'
VILLAGES.

WARRANTY.
See "Municipal Corporations."

On sale of goods, see “Sales," $ 4.
VOTERS.

WATERS AND WATER COURSES.
See "Elections."
Right to protection against disclosure of vote, Discharge of surface waters from railroad track
see "Witnesses," $ 2.

as nuisance, see “Nuisance," 8 1.

Extra allowances in action for injuries caused WAGES.

by overflow, see "Costs," $ 3. Liability of state for injuries caused by opera

tion of dam, see "States," $ 1. See "Master and Servant," $ 1.

§ 1. Subterranean and percolating wa

ters. WAIVER.

Intercepting percolating waters of adjoining See “Estoppel."

land held damnum absque injuria.-Hathorn

v. Dr. Strong's Saratoga Springs Sanitarium Of objections to particular acts, instruments,

(Sup.) 553. or proceedings. See "Pleading," 8 9.

*Plaintiff held entitled to injunction restrain

ing defendants from operating a pump diverting Conditions of insurance policy, see "Insurance," water from plaintiff's spring:-Hathorn v. Dr. 8 1.

Strong's Saratoga Springs Sanitarium (Sup.) Error in procedure in municipal court, see 553.

"Courts," $ 3. Irregularities in appointment of highway com- $ 2. Artificial ponds, reservoirs, and missioners, see "Highways," $ 1.

channels, dams, and flowage. Jurisdiction of court after change of venue, see A judgment in an action against a railroad Criminal Law," § 1.

for overflowing an owner's land held erroneous Want of parties on reference, see "Reference,” as giving relief to the owner to which he was not 8 1.

entitled.—Cooper v. New York, L. & W. Ry. Co. Of rights or remedies.

(Sup.) 611; Same v. Delaware, L. & W. R. Co., Change of venue, see “Venue," $ 1.

Id. Covenant in lease, see “Landlord and Tenant,”

In an action against a railroad for overflow8 1.

ing an owner's land, evidence held not to supExemption of tenant from payment of rent aft; port the damages allowed for fences and for

er dispossession, see “Landlord and Tenant,” | loss in rental value.-Cooper v. New_York, L. § 4. Notice of loss of shipment, see “Carriers," $ 2. L. & W. R. Co., Id.

& W. Ry. Co. (Sup.) 611; Same v. Delaware, Privilege of voter against disclosure of vote, see “Witnesses," $ 2.

In an action against a railroad for overflowProvision annulling the relation of landlord and ing an owner's land, evidence held not to sup

tenant on issuance of warrant of disposses- port the damages awarded for the depreciation sion, see “Landlord and Tenant," § 4. in the value of the land.-Cooper v. New York, Right to compensation by teacher, see "Schools L. & W. Ry. Co. (Sup.) 611; Same v. Delaware, and School Districts,” s 1.

L. & W. Ř. Co., Id.

Whether a railroad erecting and maintaining WAREHOUSEMEN.

a bridge across a stream negligently aligned the

piers and abutments thereof, and thereby caused A warehouseman under Laws 1902, p. 1776, the land of another to be overflowed, held, on C. 608, § 2, held not entitled to a retaining lien the evidence, a question of fact, for determinaon goods in his possession for loans made on tion by the referee.-Cooper v. New York, L. security of the goods.-Schwab v. Oatman (Sup.) & W. Ry. Co. (Sup.) 611; Same v. Delaware, 741.

L. & W. R. Co., Id. •Point annotated. See syllabus.

see

and 140 New York State Reporter WAYS.

presumption that he practiced undue influence

on testator.-In re Thompson's Will (Sup.) 111. Private rights of way, see “Easements.”

*Evidence examined, and held insufficient to Public ways, see "Highways"; "Municipal Cor- show that the execution of a will was obtained porations," $ 6.

by undue influence.-In re Thompson's Will

(Sup.) 111. WELLS.

That testatrix's will named her attorney er

ecutor held not to raise a presumption of undue Nominal damages for breach of contract to ad- influence against the will.-In re Marlor's Will

vance money for boring oil well, see "Dam- (Sup.) 131. ages," $ 1.

*Revocation of probate of will because of

undue influence denied.-In re Wilcox's Estate WHARVES.

(Sur.) 468. Condition and use of piers of municipal corpo- $ 4. Probate, establishment, and annalration, see "Municipal Corporations," $ 7.

ment.

*In order to submit to the jury the question WILLS.

as to whether testator was of sound mind at the

execution of the codicil, evidence must show inSee “Descent and Distribution"; "Executors condition of his property, to remember his re

sufficient mental capacity to understand the and Administrators."

lations and the scope of the provisions of the Barring of right of legatee by limitations to re- codicil.-Shayne v. Shayne (Sup.) 31.

quire an executor to account, see “Limitation of Actions,” g 1.

*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 un

only where there is substantial proof of mental ers," $ 2.

due influence.-Shayne v. Shayne (Sup.) 34. Construction and execution of trusts, “Trusts."

*In an action under Code Civ. Proc. $ 26.53a, Courts of probate, see “Courts," $ 4.

to set aside probate of codicil, plaintiff must Equitable conversion, see "Conversion.” overcome the presumption of the due execution Legacy and succession taxes, see "Taxation,” | by a pteponderance of the evidence.-Shayne v.

Shayne (Sup.) 34. Restriction on perpetuities, see “Perpetuities." Legatee under Code Civ. Proc. $ 2617, cannot Right of devisee to maintain partition, see “Par- intervene to oppose probate of will where be tition," $ 1.

would acquire less under a prior will of testaTermination of power created by will, see "Pow- tor.-In re Hoyt's Will (Sur.) 359. ers," $ 1.

*Where expert testimony as to the testamen$ 1. Nature and extent of testamentary tary capacity of testator is in conflict with that power.

of subscribing witnesses, one of whom is a Where testator gave the residue of his estate physician, the testimony of the subscribing witto his wife for life, and then made certain chari- nesses should prevail.-- In re Tifft's Will (Sur.) table bequests, computation to determine excess 362. thereof, under Laws 1860, p. 607, c. 3610, should be based on the actual duration of the life the surrogate has no jurisdiction to construe

*In a proceeding for the revocation of a will, estate and not on the probability of its dura- its provisions.-In re Wilcox's Estate (Sur.) tion at the testator's death.-In re Runk (Sur.)

468. 8.71.

*Will offered for probate executed hy a mark, $ 2. Testamentary capacity.

the attesting witness being dead, admitted to *A will by a drunkard is valid, if at the time probate under Code Civ. Proc. § 2620.-In re of its execution he knew the nature and dis- Foley's Will (Sur.) 474. position of his estate and his relations to those having any claim on his bounty.-In re Titft's

*Husband alone held entitled to object to beWill (Sur.) 362.

quest of more than one-half of wife's estate to

a religious corporation as in violation of Laws Will admitted to probate against the objec- 1860. p. 607, c. 360.-In re Eldredge's Estate tion that testator's testamentary capacity was (Sur.) 1036. affected by his habits of habitual intoxication. -In re Tifft's Will (Sur.) 362.

8 5. Construction.

Will construed, and on death of remainder*Evidence held insufficient to show incompe- man pending the life of the life tenant his share tency of testator on account of drunkenness.

passed to his children and the devisees of the In re Feeney's Will (Sur.) 461.

testator free from all claims of his creditors.* Evidence held insufficient to show mental in- Hall v. Senior (Sup.) 29. capacity of testator.-In re Armstrong's Will

*Will construed, and held to show no intent (Sur.) 071.

to charge a legacy on the real estate.-Bankers' $ 3. Requisites and validity.

Trust Co. v. Dietz (Sup.) 32. The mere fact that the draughtsman of a will Will construed, and held that share of deis made executor or a trustee does not raise any 'ceased grandchild dying after testator without

*Point annotated. See syllabus.

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