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App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

was wholly within the State of New York. There is no authority for incorporating so drastic an additional provision into the contract. The book was not offered by the plaintiff for his journey from Lackawaxen to Cochecton, but was offered for that purpose in connection with a ticket regularly purchased by him for the part of the trip from Lackawaxen to Narrowsburg. In other words, it was offered only for the part of the journey from Narrowsburg to Cochecton, and in the absence of a provision that it was not good for the New York State part of an entire trip which included other State territory, was clearly good and acceptable in accordance with its terms for the New York part.

Any other construction would tend to render the contract violative of the statute under which the book was issued. This was pointed out by Mr. Justice Jenks on the first appeal. The defendant has amended its answer since in support of a claim that as the successor of a prior railroad corporation having the general right to fix its charges for transportation, the statute in question is not binding upon it; but the Court of Appeals has since this trial decided otherwise in Minor v. Erie R. R. Co. (171 N. Y. 566).

The other points raised by the appellant have been examined, and none found to justify interference with the result.

The judgment and order should be affirmed.

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Present–GOODRICH, P.J., BARTLETT, WOODWARD and HOOKER, JJ.

Judgment and order unanimously affirmed, with costs.

LAFAYETTE L. BURDICK, Respondent, v. Mary E. BURDICK, Appel

lant, Impleaded with Laura V. STICKLEY.

Action to set aside deed as procured by fraud proof that after its execution the grantor, since deceased, made a lease of the premises in the presence of the grantee

the grantee may testify to her reasons for allowing such lease to be made.

In an action brought to set aside a deed executed by a person since deceased,

upon the ground that it was procured by fraud and undue influence, it appeared that eight months after the execution of the deed the grantor executed a lease of the premises in the presence of the grantee.

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

Held, that section 829 of the Code of Civil Procedure did not render the grantes

incompetent to testify to her reasons for allowing the deceased grantor to make the lease, certainly in so far as such reasons were wholly disassociated from actual personal transaction with the grantor.

APPEAL by the defendant, Mary E. Burdick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of March, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term.

Andrew F. Van Thun, Jr., for the appellant.

Leonard J. Reynolds, for the respondent.

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HIRSCHBERG, J.:

The plaintiff has procured a judgment voiding a deed of real estate, made by Winslow M. Burdick to the defendant Mary E. Burdick on the ground that it was procured by fraud and undue influence. The decision of the learned trial justice was announced at the close of the evidence, and appears to have been greatly influenced, if not controlled, by the fact that eight months after the execution of the deed the grantor executed a lease of the premises in the presence of the grantee. The court said in substance that the grantee should have known that it was her duty to execute the lease, and that her act in permitting it to be executed by the grantor was in consonance with the plaintiff's claim that the grantor was under the impression that he still had control of the property. When the lease was offered in evidence it was received and properly received, notwithstanding the objection that it was subsequent to the deed, the court saying: “That is one of the features that makes it very material in this case. Your client was present when it was executed. The question arises, why did she allow Mr. Burdick to make a lease of the premises if she had owned those premises for eight months?”

The grantee was afterwards called as a witness in her own behalf. "The grantor had died before the commencement of the action, and the following colloquy was held between the court and counsel in reference to her competency to testify: “The Court: The witness is incompetent to testify to any transaction with the deceased. Mr. App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. Van Thun: This lease has been offered in evidence. The Court: Does that make her any more competent? Mr. Van Thun: I think it makes her competent to explain it. The Court: I am compelled to disagree with you. She cannot testify to any conversation or transaction with the deceased. Mr. Van Thun: To explain the making of this lease and - The Court: You have my ruling and you have an exception. It is a direct violation of the provisions of

a law.” I think this was intended to be understood, and was understood, as a ruling to the effect that the witness was incompetent to testify to anything tending to explain why she permitted the deceased to execute the lease without interference or protest, and was broad enough to exclude any motive or intent which did not involve direct proof of conversations or transactions with him. The arguments of counsel indicate that it was so understood by both parties to the controversy. To this extent the ruling was clearly erroneous. The basis of the action is the alleged fraudulent pur

. pose of the grantee in procuring the deed, to a belief in which purpose the circumstance under consideration furnished manifest plausibility, and notwithstanding the decease of the grantor she was entitled to testify to her reasons for allowing him to make the lease, certainly in so far as they may have been wholly dissociated from any actual personal transaction. In view of the importance properly attached by the trial court to the acquiescence of the grantee in the action of the grantor in leasing the property as though he was still the owner, it cannot be said that the exclusion of such explanation as she might lawfully have given without expressly or directly violating the provisions of section 829 of the Code of Civil Procedure has not prejudicially affected the result, and a new trial is, therefore, necessary. The judgment should be reversed.

GOODRICH, P. J., BARTLETT, JENKS and HOOKER, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.

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SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86.

Sarah J. BURNETT, Respondent, v. MARGARET E. BURNETT and

Others, Appellants.

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Action for admeasurement of dorer in land conveyed by the husband (since deceased)

of the plaintiff by a deed in which she did not join- a counterclaim for damages for the amount of such dover interest cannot be inter posed although the plaintiff was the sole deviree and legatee of her husband's will. - a judgment sustaining a demurrer to a portion of an answer should be interlocutory - it should not authorize the collection of costs.

In an action for the admeasurement of dower in real estate, of which the plaintiff

claimed that her deceased husband was seized during coverture, and which he had conveyed by a deed, in which she did not join, the defendants interposed an answer alleging, as a counterclaim, that the plaintiff's husband had devised and bequeathed to her all his property, both real and personal; thít he was . solvent and responsible; that the property so devised and bequeathed was greater in value than the amount of the plaintiff's claim for dower; that the plaintiff, as beneficiary under the will, was indebted to the defendants in the arnount (if any) which would be recoverable in this action for admeasurement of dower, and that the benefits received by her under the will should be set

off against the plaintiff's claim. Held, that the counterclaim was demurrable; That the defendants' claim did not arise out of the plaintiff's claim and was not

connected in a legal sense with the subject matter of the plaintiff's action, and that, therefore, the matter set forth in the answer did not constitute a counterclaim within the definition contained in section 501 of the Code of Civil

Procedure. A judgment sustaining a demurrer to a counterclaim interposed in an answer

containing other issues should be interlocutory, and should not permit the collection of the costs until judgment is rendered on the other issues.

APPEAL by the defendants, Margaret E. Burnett and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of October, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, sustaining the plaintiff's demurrer to the second separate defense contained in the defendants' answer.

Alvan R. Johnson, for the appellants.

Michael J. Tierney, for the respondent.

App. Div.)

SECOND DEPARTMENT, JULY TERM, 1903,

HIRSCHBERG, J.:

The action is for the admeasurement of dower in certain real estate, of which the plaintiff alleges her husband was seized during coverture, and which he conveyed to William Burnett by a deed of conveyance without her signature. She alleges in the complaint that her husband has since died, that she has not assigned, released or conveyed her dower in the real estate, and that William Burnett has since died intestate, seized and possessed of such real estate, leaving the defendants as his heirs at law and their husbands in possession of the property as tenants in common, subject to her dower right.

The answer of the defendants denies any knowledge or information sufficient to form a belief that the plaintiff's husband was seized and possessed of the premises during coverture with the plaintiff, and denies that the plaintiff is entitled to recover any sum of money as dower or otherwise. As a further and separate answer and defense and as set-off against the plaintiff's claim, the answer further alleges that the plaintiff's husband by will gave, devised and bequeathed to her all his property, both real and personal; that he was solvent and responsible; that the property so devised and bequeathed is greater in value and amount than the plaintiff's claim in this action; that the plaintiff as beneficiary under such will is indebted to the defendants in the amount (if any) which would be recoverable in this action, and that the benefits received by her under the will should be set off against the plaintiff's claim.

The plaintiff demurred to the second defense upon the ground that it was insufficient in law, and upon the trial of the issue of law thus raised has obtained a judgment sustaining the demurrer, awarding her taxed costs and disbursements, and decreeing that she have execution therefor.

The defense does not present a counterclaim within the terms of the definition contained in section 501 of the Code of Civil Proceddure, and the demurrer was properly sustained. The sole contention of the appellants upon this point is that the aim of equity is to prevent circuity of action and to set litigation at rest. This aim is accomplished, however, only in obedience to and not in defiance of the statutory rules and forms of practice. The plaintiff's claim arises out of the seizin of her husband of the real estate during

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