Action to set aside conveyance and assignment made by devisee-fraudulent repre-
sentations by grantee - evidence sufficient to establish legitimacy and title of
grantor. Action to set aside a conveyance of plaintiff's interest as devisee under
the will of Harriet Cramsey of certain real estate and an assignment of his interest
in her estate on the grounds that the same were procured by false and fraud-
ulent representations. Her will gave to her son Benjamin the use for life of a
portion of her estate, and at his death "to his children then living."

The plaintiff claims title as the son and only heir of Benjamin. The action
was defended on the ground that plaintiff was not the lawful issue of Benjamin,
and that the instruments were not procured by fraud.

As to plaintiff's legitimacy it was shown that Benjamin Cramsey had lived
with plaintiff's mother at the home of her parents at the time and before the
birth of plaintiff; that plaintiff was born there; that Benjamin introduced plain-
tiff's mother to his relatives and neighbors as his wife, and brought a brother
to see their son, the plaintiff; that plaintiff's mother preserved a paper which,
though not in the statutory form, she regarded as a marriage certificate, and also
a certificate of the baptism of plaintiff under the name of Cramsey. The agent
employed to procure the deed and assignment knew of the plaintiff's existence as
the son of Benjamin, and the deed and assignment recited the fact that he was
such son; the grantee and assignee, a grandson of Harriet Cramsey, had full
opportunity of ascertaining and knowing his relatives, and his father repre-
sented him in the investigation as to the existence of an heir of Benjamin and
suggested that the deed and assignment run to defendant. The only evidence
to the contrary was that of the defendant's father, that he did not know of any
acquaintance or intimacy between his brother and plaintiff's mother, of their
marriage or the birth of plaintiff, and that his brother did not live at the residence
of plaintiff's mother.

Held, that assuming that the burden was on plaintiff to establish that he was
the heir of Benjamin, he had sustained it by a fair preponderance of evidence
and a finding that the contract of marriage was not proved was against the
weight of evidence.

On the question as to whether the deed and assignment were procured by false
and fraudulent representations, it was shown that the plaintiff was ignorant,
could hardly read and write; that he did not solicit the purchase of his interest in
the estate; that he was ignorant of his interest and was asserting no claim; that
he was without business experience and relied entirely on his agent Dean, who
was set in motion by the agent of defendant; that the deed and assignment were
prepared at the instance of the defendant, and plaintiff was induced to refrain
from talking with his uncle, with whom he lived; that the consideration paid was
$500, while the interest of defendant in the property was from four to ten times
that amount; that he was led to believe that the interest assigned was in his
father's estate and not his grandmother's; that it was of little value, heavily
incumbered and likely to be lost by foreclosure. The defendant understood the
value of plaintiff's interest. The plaintiff in his complaint and at the trial offered
to return the amount paid with interest.

Held, that the plaintiff was deceived by misrepresentation of material facts
and was entitled to rescind and have the deed and assignment canceled on
returning the amount paid. Cramsey v. Sterling, 568.

Trust deed with remainders to heirs of beneficiary - when heirs to be ascer-
tained at death of beneficiary-adoption - when adopted child is heir and takes
trust estate to exclusion of brothers of beneficiaries.

Gilliam v. Guaranty Trust Co., 656.

Trespass by cutting timber-reservation of right to cut timber construed
when no time set timber must be removed within reasonable time - when such
right not acquired by prescription.

Decker v. Hunt, 821.

Will-power coupled with interest-conveyance by warranty deed for full
value shows intention to exercise power.

Vines v. Clarke, 12.

In creditor's action court may set aside deed or declare it to be a mortgage.
Lawrence Brothers, Inc., v. Heylman, 848.

DEFINITION.

1. "Principal." That a large increase in the value of the assets at the time
of sale, made up of materials and "betterments," was to be treated as principal,
being an increase in the value of the property itself, and should not be treated as a
"profit" arising from or growing out of the stock held in trust. Matter of
Stevens, 773.

2. "Dividends, issues and profits." That the words "dividends, issues and
profits," used in the creation of the trust, must be construed as meaning "income
or earnings," and that a large balance representing good will could not be taken
as earnings or increase. Id.

3. What constitutes "capital." That the value of the material on hand and
the betterments" at the time of sale should be considered as part of the
capital or principal rather than "income or earnings," so far as the trusts were
concerned. Id.

4. Use of furnace included in the word "appurtenances." Although a lease is
silent as to the provisions for heat, it is immaterial because the right to heat
with the only means provided therefor is included in the word "appurtenances."
Stevens v. Taylor, 561.

DELAWARE COUNTY.

See MUNICIPAL CORPORATION.

DELIVERY.

of goods sold.

See SALE.

DEMURRER.

See PLEADING.

DEPOSIT.

In a bank.

See BANKING.

DEPOSITION.

1. Examination of officer of corporation — Code of Civil Procedure, §§ 870, 872,
873, and rule 82 construed. Section 870 of the Code of Civil Procedure, as
amended by Laws of 1904, chapter 696, allows a party to an action to take the
deposition of any party to such action during as well as before trial.

Rule 82 of the General Rules of Practice in requiring the applicant to show, in
conformity with subdivision 4 of section 872 of the Code of Civil Procedure,
that the examination of the party is "material and necessary," is designed to
prevent an abuse of such examination by using it for ulterior or improper

purposes

Code of Civil Procedure, sections 870, 872, 873, and court rule 82 construed.
Goldmark v. U. S. Electro-Galvanizing Co., 526.

2. Matters not a defense to such application When an applicant has complied
with the above sections of the Code and with said rule, it is no answer to his
application to show that he can subpoena the witness sought to be examined, or
that the witness or defendant will stipulate to appear at trial, or that the evidence
sought can be obtained through other persons. Id.

3. Laches no bar. On such application there can be no question of laches, as
by the amendment to section 870 of the Code of Civil Procedure such examination
can be had during trial. Id.

4. Examination before trial — examination of defendants who deny ownership of
car which injured plaintiff. When, in an action to recover damages for personal
injuries, the defendants deny that the car which injured the plaintiff was owned
or operated by them, an order for the examination of such defendants before
trial should be granted when the plaintiff shows that he has no information on
the subject and after diligent inquiry cannot learn where the same can be found.
Watt v. Feltman, 314.

Evidence - privilege of communications to physician not waived by taking
deposition of such physician - privilege of physician can only be waived in
open court or by stipulation.

Clifford v. Denver & Rio Grande Railroad Co., 513.

-

Creditor's bill to set aside conveyance - evidence- when deposition of grantor
on supplementary proceedings casts burden on grantee to disprove fraud-
failure to object to such deposition as hearsay.

Lawrence Brothers, Inc., v. Heylman, 848.

Lis pendens - when not canceled in action to set aside conveyance - plaintiff's
right to relief not determined on affidavit-when deposit of money may be
made.

Wolinsky v. Okun, 536.

Arrest - action for goods obtained by false representation - when right to
arrest may be established by affidavits, though verification of complaint
defective.

Voorhees Rubber Manufacturing Co. v. McEwen, 541.

DESCENT.

Trust deed with remainders to heirs of beneficiary when heirs to be ascer
tained at death of beneficiary adoption - when adopted child is heir and takes
trust estate to exclusion of brothers of beneficiary.

Gilliam v. Guaranty Trust Co., 656.

DEVISE.

See WILL.

DIRECTOR.

Of a corporation.

See CORPORATION.

DISCOVERY.

Life insurance -

mutual company without stock is not a stock corporation -
mandamus to compel allowance of inspection of list of members not a statu-
tory right common-law writ in discretion of court when such writ will be
refused.

People ex rel. Venner v. New York Life Insurance Co., 183.

DIVIDENDS.

Of a corporation.

See CORPORATION.

DIVORCE.

See HUSBAND AND WIFE.

DRAINAGE.

Into watercourses.

See WATERCOURSE.

DURESS.

Undue influence · action to set aside conveyance of mortgages in trust because
of undue influence - presumption of fraud.

Municipal corporations - fee of Fourth avenue in city of New York belongs to
city-compensation for depreciation in value of abutting property by erection
of railroad viaduct on said avenue.

Caldwell v. New York & Harlem R. R. Co., 164.

Real property-action for damages for injury to value thereof by elevated
railway measure of damages.

-

Schmitz v. Brooklyn Union Elevated R. R. Co., 308.

Real property-injury to real estate by elevated railroad viaduct not damnum
absque injuria.

Wallach v. New York & Harlem R. R. Co., 273.

EJECTMENT.

When such action triable before jury although incidental equitable relief is
demanded. A complaint which demands the recovery of possession of lands
with an incidental request that the defendant railway in possession thereof be
compelled to remove its tracks, and be enjoined from using the same, states a
mere action for ejectment and should be tried before a jury.. The fact that
incidental equitable relief is asked does not deprive the defendant of its right to
a jury trial as such relief would be given in the common-law action. Remsen v.
New York, Brooklyn & M. Beach R. Co., 413.

Municipal corporations-town of North Hempstead not owner of lands under
water south of Saddle Rock in Little Neck bay.

Town of North Hempstead v. Eldridge, 789.

ELECTION.

Municipal corporations - Election Law construed-aldermen of city of New
York empowered to designate newspapers to publish notices — when newspaper
can recover for such publication under former designation not revoked.
Standard Publishing Co. v. City of New York, 260.

1. When immediate possession of condemned lands ordered under section 3380 of
the Code of Civil Procedure on payment of money. Immediate possession of con-
demned lands will be awarded under section 3380 of the Code of Civil Procedure
if public interests will be prejudiced by delay, upon the petitioner paying the
proper value of the lands into court, even though the answer of the respondent in
the proceedings to condemn lands fails to state the value of the lands as contem-
plated by said section. Matter of Niagara, Lockport & Ontario Power Co., 686.

2. Construction. Said section is to be construed in the light of its purpose,
which is to enforce an immediate possession of lands condemned when public
interest will be prejudiced by delay, and the contestant in such proceedings by
refusing to set a value on the lands, by answer or otherwise, cannot be permitted
to defeat the object of the statute. Id.

3. Failure of owner of lands to state value thereof. A deposit of the fair value
of the land, as shown by the petitioner by affidavits founded on its assessed
value, is sufficient when the contestant at the request of the court refuses to set
a value. Id.

4. Said section constitutional. Section 3380 of the Code of Civil Procedure
does not violate section 6 of article 1 of the State Constitution by authorizing
the taking of lands without due compensation. The section is intended to
insure to the owner the payment of the value. Id.

5. What constitutes public purpose. The Niagara, Lockport and Ontario Power
Company, incorporated to furnish electric power and water to towns, villages
and cities and to the people of the State, is organized for a public purpose. Id.

6. When delay prejudicial. When the plant of the said company is partly con-
structed and the company is under contract to receive large quantities of elec
tric power from other companies which are ready to deliver, and is also under
contract to deliver certain power, and when the transmission of the power in
other ways than those contemplated would be dangerous and impracticable,
"the public interests will be prejudiced by delay" within the meaning of said
section 3380 of the Code of Civil Procedure. Id.

Constitutional law - charter of the Niagara County Irrigation and Water Sup-
ply Company did not require assent of two-thirds of Legislature — rights of
State in waters and bed of Niagara river.

Niagara County I. & W. S. Co. v. College Heights L. Co., 770.

EMINENT DOMAIN —Continued.

Municipal corporations - fee of Fourth avenue in city of New York belongs
to city-compensation for depreciation in value of abutting property by erec-
tion of railroad viaduct on said avenue.

Caldwell v. New York & Harlem R. R. Co., 164.

Municipal corporations - condemnation proceedings for street opening in city
of New York -no appeal from order of Special Term sending back report to
commissioners for correction.

Matter of Commissioner of Public Works, 285.

EMPLOYERS' LIABILITY ACT.

Negligence-death of brakeman while coupling defective cars- - failure of
defendant to promulgate proper rules-recovery by plaintiff sustained — evi-
dence opinion of expert as to rule properly received - Employers' Liability
Act - assumed risk question of fact extra allowance denied.

Freemont v. Boston & Maine R. R. Co., 831.

Negligence-injury by fall of scaffold - Employers' Liability Act-liability
of master for servant exercising superintendence - continuing duty to keep
structure safe-freedom from contributory negligence.

Berthelson v. Gabler, 142.

EQUITABLE CONVERSION.
See CONVERSION.

See REAL PROPERTY.

EQUITY.

1. Creditor's bill-failure to show conveyance to be fraudulent. In an action by
a divorced wife, who has been awarded alimony, to set aside a conveyance by
her former husband to his second wife as in fraud of his creditors, there is a total
failure to prove fraudulent intent when the plaintiff merely shows that her exe-
cution was returned unsatisfied, and that the conveyance was on the considera-
tion of "one dollar, and other valuable considerations." The mere fact of a con-
veyance to his wife made by a man who is in debt, does not of itself establish
fraud. There are two essential elements necessary to fraud: The insolvency of
the grantor and the voluntary character of the conveyance. When insolvency
is established the burden is on the grantee to show consideration. When both
insolvency and want of consideration are shown, the fraud is established. Wad-
leigh v. Wadleigh, 367.

other valuable considerations" is not
Id.

2. Consideration. The use of the words
an admission that the consideration was nominal.

3. Evidence. The return of an execution unsatisfied a year after the convey-
ance does not establish insolvency at the time of such conveyance.
Insolvency and indebtedness distinguished. Id.

4. When deposition of grantor inadmissible against grantee. The deposition of
the grantor on supplementary proceedings held after the conveyance is not
admissible against the grantee. Id.

Trial suit in equity -new trial ordered when trial justice designated to
Appellate Division before signing and filing decision — cause cannot await expi-
ration of such designation court cannot compel submission of case on former
testimony.

Williamson v. Randolph, 539.

Injunction to restrain sale of collateral security when remedy at law
adequate complaint failure to show irreparable damage and that remedy at
law is inadequate.

Ehrich v. Grant, 196.

plaintiff's

Lis pendens-when not canceled in action to set aside conveyance-
right to relief not determined on affidavit — when deposit of money may be
made.

Wolinsky v. Okun, 536.

Husband and wife - husband's contract for support after separation is enforci-
ble jurisdiction of Municipal Court of New York.

Reardon v. Woerner, 259.