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firm, held no defense to the application.-Fidel.

ity & Casualty Co. of New York v. Seagrist
(Sup.) 280.

Of causes for trial, see "Trial,” 8 1.
Order permitting examination of books and
papers to enable plaintiff to frame its complaint

held improper under the facts.-Snow, Church &
Co. v. Snow-Church Surety Co. (Sup.) 512. As evidence in civil actions, see “Evidence," $ 7.

An application for examination of a party be- Production and inspection of writings, see' "Dis-
ore trial "to enable the opposite party to pre-

covery," $ 1.
pare for trial" denied, when it does not appear
he intends to use the evidence.-Dudley v. New

York Filter Mfg. Co. Sup.) 529.

See “Gifts."


§ 1. Rights and remedies of widow.
Discontinuance of attachment, "Attach-

Under Code Civ. Proc. $ 1600, held, in an
ment," $ 4.

action for dower against persons as beneficiaries
Dismissal of appeal, see "Appeal," § 6.

under a trust, though some of them are heirs,
At trial, see "Trial," $ 4.

damage for withholding the dower is to be

computed from the demand for dower.-Gorden
$ 1. Involuntary.

v. Gorden (Sup.) 241.
Facts held to call for dismissal of an action,
under Code Cir. Proc. $ 822, and General Rules
of Practice No. 36, for unreasonable neglect to

prosecute.-Zafarano v. Baird (Sup.) 510.

See "Constitutional Law," $ 1.

Information charging defendant with keeping Subject to execution, see "Execution," $ 2.
house of prostitution held insufficient for fail-
ure to state facts, as required by Code Cr.
Proc. 88 148, 149.- People v. Miller (Sup.) 1070.


See "Highways."

§ 1. Creation, existence, and termina.
Of juror, see "Jury," $ 2.

Lot owner held to have abandoned easement in

portion of abutting street, so as to preclude her

from enjoining neighboring owner from appro-

priating and building on his proportionate part of
Of attachment, see "Attachment," $ 4.

such street.-Tremberger v. Owens (Sup.) 694.
Of injunction, see "Injunction," $ 2.
Of partnership, see "Partnership," $ 3.

Reservation in deed held not to have created
a private way.-Allen v. Lester (Sup.) 1053.

Grantor of land held entitled to right to use

certain strip reserved in deed.-Allen v. Lester

(Sup.) 1053
Of estate of decedent, see "Descent and Distri-

bution"; "Executors and Administrators," $ 5. 2. Extent of right, use, and obstruc-
Of funds of insolvent corporation, see "Corpora-

tions," $ 5.

A right of way held to have been appurtenant

to certain premises, and to have passed to

the owner's grantee.-Allen v. Lester (Sup.)

(n corporate stock, see "Corporations,” $ 1.


Of passenger, see “Carriers," $ 2.
Separate maintenance, see "Husband and Wife,"

$ 1.

$ 1. Pleading and evidence.
§ 1. Jurisdiction, proceedings, and re- Demurrer to complaint in ejectment, setting

out in detail the facts of plaintiff's claim, held
Motion for bill of particulars in divorce held properly sustained.-Ely v. Azoy (Sup.) 620.
properly granted on affidavit of attorney of de-
fendant.--Kirkland v. Kirkland (Sup.) 21.

Testimony held insufficient to justify a divorce
on the ground of adultery.- Burch v. Burch The bringing of an action against executors
(Sup.) 182.

for the recovery of the value of goods held by
80 N.Y.S.-74

$ 1. Nominations and primary elec-*i

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and 114 New York State Reporter
them held to waive any right by plaintiff to On appeal from order confirming, award of
treat the refusal of her demands for the goods damages for opening of street, city held not en-
as a conversion.-Moran v. Morrill (Sup.) 120. titled to complain of apportionment of award

among parties entitled.-In re Trinity Are. (Sup.)


83. Remedies of owners of property.

In a suit for an injunction and for damages
Amendment of rule of county general com-

for the operation of an elevated railway in
mittee of a political party, without notice, held in the grantee of the original plaintiff as a par-

front of one's premises, held improper to bring
void under Laws 1899, c. 473, § 9, subd. 2:- ty plaintiff.- Pope v. Manhattan Ry. Co. (Sup.)
People Democratic General Committee 316.
(Sup.) 943.
Right of county general committee to consti- road, and assesses the cost on adjacent prop-

Where a city erects structures on a private
tute rules for creation of executive committee erty of the owner, he may sue in equity to set
determined.-People Democratic General | aside the assessment and compel the removal
Committee (Sup.) 953.

of the structures, and for damages.-Culver .
§ 2. Count of votes, returns, and can- City of Yonkers (Sup.) 1034.

When a city erects structures on a private
Under Election Law (Laws 1896, c. 909) 88 road, to the damage of the owners, held, that
84, 110, 111, 131, the board of county canvass-the city should pay such damages or be com-
ers cannot show in their returns the number of pelled to restore the road to its former con-
votes of each of two parties cast for a commondition.-Culver v. City of Yonkers (Sup.) 1034.
candidate, but can only show the total vote
cast for the candidate by both parties.-People
v. Board of Cauvassers of Erie County (Sup.)


See "Master and Servant."

Authority of corporate officers as to contracts

of employment, see “Corporations," $ 4.
Public improvements by municipalities, see “Mu-
nicipal Corporations," & 5.

1. Compensation.
Land acquired by New York City for a street Of judgment, see "Appeal," $ 2.
held not subject to easement, so as to reduce Re-entry by landlord, see "Landlord and Ten-
owner's damages below full fee value.-In re ant," $ 5.
Leggett Ave. (Sup.) 673; City of New York v.
Govin, Id.

Award of damages to adjoining owner from
grading of street held erroneous under New York See "Ejectment."
Consolidation Act, $ 978, and Greater New York
Charter, $$ 980, 988.-In re Trinity Ave. (Sup.)


Dedication of land for street held, under New | See "Conversion."
York Consolidation Act, § 978, and Greater
New York Charter, $ 980, not a waiver of own-

er's right to compensation for damage to adjoin-
ing building.-In re Trinity Ave. (Sup.) 732. Equitable conversion, see "Conversion."

The owner of a building which he removes be- Particular subjects of equitable jurisdiction and
fore the opening of a street is not entitled to

equitable remedies.
damages.- În re City of New York (Sup.) 842.

See "Account"; "Fraudulent Conveyances"; "In-
Damages to buildings by opening streets are to junction"; _“Nuisance." § 1; "Partition," $ 1;
be ascertained as of the time the street is actual- "Quieting Title"; "Receivers"; "Reformation
ly opened.-In re City of New York (Sup.) 842. of Instruments”; "Specific Performance";

§ 2. Proceedings to take property and
assess compensation.

Foreclosure of mechanic's lien, see "Mechanics
Under Laws 1897, c. 713, the affidavit of

Lieus," $ 3.
commissioners of appraisal of lands taken for

the water supply of New York held prima facie
evidence of the number of days they were em- Liability of sheriff, see “Sheriffs and Consta-
ployed, and not rebutted by a certain affidavit

bles," $ 1.
of the corporation counsel.-In re Collis (Sup.)
307; Digney v. City of New York, Id.

Petition filed with grade crossing commission-
ers of the city of Buffalo for assessment of Of bridges, see "Bridges," $ 1.
damages, when considered with the grade cross- Of highways, see "Highways," $ 1.
ing act Laws 1890, c. 255), to which it refer- of lost instruments, see "Lost Instruments."
red, held good.—People v. Adam (Sup.) 452. Of will, see "Wills," $ 3.


er absence of plaintiff's attending physician as a

witness.-Minck v. New York & Q. C. Ry. Co.
Created by will, see “Wills," $ 7.

(Sup.) 712.
Decedents' estates, see “Descent and Distribu-
tion"; "Executors and Administrators."

$ 3. Relevancy, materiality, and com-
Estates for years, see “Landlord and Tenant."

petency in general.
Restrictions on creation of future estates, see

In an action for assault by street car conductor

on passenger, held not error to admit evidence
Trusts, see "Trusts," $ 2.

that the conductor who was arrested was dis-

charged after arraigninent.-James v. Metropoli-
Particular estates.

tan St. Ry. Co. (Sup.) 710.
See “Dower"; "Remainders."

Evidence of an architect, denying an alleged

restriction on the cost of the building in an ac-

tion for his services, held admissible in rebuttal.

-Hornum v. McNeil (Sup.) 728.
See "Insurance," $ 7.

§ 4. Admissions.
By judgment, see "Judgment,” $8 5, 6.

On issue whether husband had given property
To avoid or forfeit insurance policy, see "Insur- to his wife, his subsequent declarations held in-
ance," $ 5.

admissible.-Newgass v. Auburn Loan Co. (Sup.)


§ 5. Declarations.
See "Depositions"; "Discovery"; "Witnesses.” Testimony on the question of indebtedness
Judicial notice of time of commencement of ac- held hearsay.-Kramer v. Kramer (Sup.) 184.
tion on hearing on demurrer, see “Pleading,"

Where, in an action by a broker to recover
§ 3.

a commission, the defendant claimed that the
Questions of fact for jury, see “Trial," 8 4.

broker was discharged before the sale was
Reception at trial, see “Trial," $ 2.

made, the exclusion of a memorandum made
Reception on reference of cause, see "Refer- by defendant to be telephoned to the broker,
ence," $ 2.

discharging him, but not communicated to him,
Review on appeal, see “Appeal," $ 7.

held not error.-Diamond v. Wheeler (Sup.) 416.
A8 to particular facts or issues.

Written statement of the trustee, who had
See “Compromise and Settlement”; “Customs mingled the moneys of the trust with others,
and Usages"; "Fraudulent Conveyances,” 8 1; as to the body of the estate, held binding on one
"Paynient," § 1.

of the beneficiaries.-Putnam v. Lincoln Safe
Testamentary capacity, see "Wills," $ 1.

Deposit Co. (Sup.) 961.
Validity of deed, see "Deeds," $ 2.

Testimony as to conversations with one since
In actions by or against particular classes of deceased held admissible.-Komitsch De

Groot (Sup.) 970.
See "Brokers," $ 3; “Master and Servant," $ $ 6. Hearsay.

3; "Municipal Corporations," $ 8; "Sheriffs In an action for architect's services, evidence
and Constables," $ 1.

that a change in the building by defendant in-
In particular civil actions or proceedings.

creased the cost held not objectionable as hear-

say.--Hornum v. McNeil (Sup.) 728.
See “Divorce,” 1; "Libel and Slander," § 3;
"Money Received”; “Negligence," $ 3.

Evidence of price paid for property at bona
For breach of contract of sale, see “Sales," 6. fide sales held competent to prove its true value.
For personal injuries, see “Carriers," $ 2: "Mas-

-People v. Rushford (Sup.) 891.
ter and Servant," $ 3; "Municipal Corpora-

The consideration named in a conveyance held
tions," $ 8; "Railroads," § 1.

not competent to prove the value of the property
On contract, see “Contracts," $ 5.

conveyed.-People v. Rushford (Sup.) 891.
On note, see “Bills and Notes," $ 4.

In an action for libel, held error to have ad-
Probate proceedings, see "Wills," $ 3.

mitted certain letter to plaintiff.-Kuster V.
Trial of claim against estate of decedent, see Press Pub. Co. (Sup.) 1050.
"Executors and Administrators," 4.

$ 7. Documentary evidence.
In criminal prosecutions.

In an action for injuries, held error to permit
See "Criminal Law," $ 3.

defendant's counsel, as part of his affirmative
§ 1. Judicial notice.

case, to read in evidence matter contained in a
On a question of delay in presenting a New medical book.–McEvoy v. Lommel (Sup.) 71.
York check, first sent by the payee to his home

In an action for injuries caused by the falling
in another state, the court will take judicial of a chimney, a photograph, taken subsequent
notice of the fact that exchange is in favor of to the accident, held admissible.-Leeds v. New
the city of New York, and that checks payable York Tel. Co. (Sup.) 114.
there are at a premium throughout the country. Question of admissibility of account books to
- Citizens' State Bank v. Cowles (Sup.) 598. show selling and purchase price considered. -
§ 2. Presumptions.

Rathborne v. Hatch (Sup.) 347.
Defendant in a personal injury case held enti- In an action for breach of a news contract, an
tled to an instruction that the jury may consid- ) unexecuted and undelivered contract with oth-


and 114 New York State Reporter
ers held inadmissible to show that another than

plaintiff was the real party in interest.-Unit-
ed Press v. A. S. Abell Co. (Sup.) 454.

Exemption of seat in stock exchange, see "Ex-
In a proceeding to establish notes against the emptions," § 1.
maker's estate, evidence of credits of interest on Seat in stock exchange as subject to execution,
the notes to an account against the payee's hus- see "Execution,” 8 2.
band in the maker's ledger held admissible.-
Kirkpatrick v. Goldsmith (Sup.) 835.

§ 8. Parol or extrinsic evidence affect- Regulation of traffic in intoxicating liquors, see

ing writings.
Parol evidence held admissible to show mean-

"Intoxicating Liquors."
ing of written memoranda of contract.-Gutten-
tag v. Whitney (Sup.) 435.

An indorsement on a contract not broader
than the contract itself, held not to preclude See "Attachment"; "Garnishment."
parol evidence, when the contract does not do Exemptions, see "Exemptions."
so.-Lawrence v. Sullivan (Sup.) 499.

§ 1. Property subject to execution.
Parol evidence held admissible to add to a con-

Chattel mortgagee held entitled, before lery by
tract between a person and a mortgagor provid- his judgment creditor, to transfer property to
ing for the delivery of the mortgage to such the mortgagee in payment of the loan.-McDon-
person on "his making a satisfactory provision” ald v. City Trust, Safe Deposit & Surety Co.
of settlement on account of it.-Lawrence v. (Sup.) 405.
Sullivan (Sup.) 499.

§ 2. Supplementary proceedings.
8 9. Opinion evidence.

Receiver of member of stock exchange held
In an action for personal injuries, evidence of to acquire any equity in seat, incumbered by
their permanence held admissible.-Walden v. preferred_debts to other members of the ex-
City of Jamestown (Sup.) 65.

change.-Leggett v. Waller (Sup.) 13.
In an action for personal injuries, evidence Seat in stock exchange held property, which
that paralysis would probably result held ad- will pass to receiver of member under supple-
missible.- Walden v. City of Jamestown (Sup.) mentary proceedings.—Leggett v. Waller (Sup.)

In an action against a street railway com- A judgment creditor cannot reach future earn-
pany for injuries received by a traveler, thrown ings of his judgment debtor.-Dease v. Reese
out of a wagon in a collision two years before, Sup.) 590.
held not error to permit a physician to state
whether plaintiff's condition could have been

Judgment creditor held entitled to have a re-
caused by his being thrown out of a wagou ceiver of the property of a judgment debtor ap-
nearly two years before.- Wagner v. Metropoli- pointed.-Dease v. Reese (Sup.) 590.
tan St. Ry, Co. (Sup.) 191.

Receiver in supplementary proceedings held
In an action for breach of contract, evidence entitled to interest of judgment debtor in funds
that a witness inferred that the contract had of the organization to which he belongs.-
been transferred to another held inadmissible. Dease v. Keese (Sup.) 590.
United Press v. A. S. Abell Co. (Sup.) 454.

In an action for injuries sustained from ice EXECUTORS AND ADMINISTRATORS.
on a city sidewalk, plaintiff's opinion that the
ice was formed from water from a leader on a See “Descent and Distribution"; "Wills."
building held inadmissible.-Wittman v. City of Security for costs in actions by, see "Costs,"
New York (Svp.) 1022.

§ 1.

Surviving partner as executor of deceased part-

ner, see “Partnership," $ 2.

Testamentary trustees, see "Trusts."
of adverse party before trial, see “Discovery," Testimony as to, transactions with decedents,
$ 1.

see "Witnesses," $ 1.
of person accused of crime, see “Criminal Law,"|1. Appointment, qualification,
$ 2.


Of person having property of attachment defend-

Temporary residence outside state held not
ant, see “Attachment," $ 3.
Of witnesses in general, see “Witnesses," $ 2.

ground for removing executor, under Code Civ.
Proc. $_2685, subd. 6.-In re McKnight's Will

(Sup.) 251.

The surrogate held to have power, as a condi-
Necessity for purpose of review, see "Appeal," tion of not revoking letters, under Code Cir.
$ 3.

Proc. $ 2472, subd. 2, $ 2481, to compel an execu-

tor to give a bond.-In re Wischmann (Sup.) 78.

§ 2. Assets, appraisal, and inventory.
See "Damages," $ 2.

Application to compel executor to file inven-
For ejection of passenger, see "Carriers," $ 2. tory held uot to show that applicant was a

creditor or interested in the estate.-In re! been allowed by the administrator.-In re Mi-
Huntington's Estate (Sur.) 220.

ner's Estate (Sur.) 643.
An application to compel executors of an es- Under Code Civ. Proc. $ 2722, the surrogate
tate to file au inventory can only be made by does not lose his jurisdiction to decree payment
a creditor of person interested in the estate.- of claims of petitioning creditors, which have
In re Huntington's Estate (Sur.) 220.

been allowed by administrators, because the es-

tate is insolvent, and judicial settlement of the
§ 3. Collection and management of es- ! administrators' accounts has not been had.-In

re Miner's Estate (Sur.) 643.
An executor, who continued testator's busi-
ness of his own motion, was not entitled to Estate of widow, since deceased, given her
credit for a salary payable to himself.-In re by, her husband with right to use during life,
Peck (Sup.) 76.

held not chargeable with moneys misappropriat-
Where an executor continues testator's busi- ; tate (Sur.) 651.

ed, except on clear proof.-Iu re Wilmot's Es.
ness of his own motion, he is only required to
account for net profits, and salaries of others

Evidence held insufficient to support claim
are not reviewable.--In re Peck (Sup.) 76.

against decedent's estate.-In re Wilmot's Es-

tate (Sur.) 651.
An executor, having been required to per-
form a lease executed by the testator, held enti-

Where a disputed claim against decedent's es-
tled to credit for the balance between the tate is referred, the surrogate has no authority
amount he was required to pay and the amount to render against the claimant an affirmative
received from subletting the premises.-Iu re judgment on a counterclaim in favor of the es-
Peck (Sup.) 76.

tate.--In re Wilmot's Estate (Sur.) 651.
Where a sum of $650 was allowed an execu- i 8 5. Distribution of estate.
tor for counsel fees, he was not entitled to A provision of a husband's will for the pay-
credit for $500 more for attorney's fees for ment of his wife's debts held in the nature of a
advice.-In re Peck (Sup.) 76.

legacy, which the wife's executor and creditor
In the absence of authority in the will, execu-

was entitled to enforce.-Hallock v. Hallock
tors have no right to continue the business of de- 1 (Sup.) 61.
cedent, except to convert the assets into money.- The debts of a husband held entitled to prior-
In re McCollum (Sup.) 755.

ity of payment from his estate to the debts of
An oral request of a decedent that his execu- ! his widow, charged upon the husband's estate
tors continue his business does not confer on; by his will.-Hallock v. Hallock (Sup.) 61.
them authority to do so.-In re McCollum (Sup.) A receipt by a legatee to an executor of a

stated sum, "in full of interest money in full to
The continuance by the executor of the busi- i date," held, in the absence of evidence contra-
ness of deceased held not merely incidental to the dicting the terms, conclusive that all interest to
winding up of the business.-In re McCollum such date was paid.-In re Murphy (Sup.) 530.
(Sup.) 755.

Administrators can deduct from distributive
Will construed, and held, that executors had shares amount of outlawed promissory notes of
no power to sell certain of testator's realty be- distributees.-In re Timerson (Sur.) 639.
fore the happening of a certain contingency.-
O’Rielly v. Platt (Sup.) 829.

$ 6. Actions.

An action for the recovery or the value of
An executrix cannot recover from the estate personal property held properly brought against
traveling expenses not necessary to perform- i executors in their representative capacity.-
ance of her duties.-In re Biggars (Sur.) 214. Moran v. Morrill (Sup.) 120.

Where an executor borrows moneys from the
estate, he is chargeable with 5, and not more

$ 7. Accounting and settlement.
than 6 per cent. interest.-In re Griffing (Sur.), cessity of the payment of a claim created by

The burden of proof of the justice and ne-

the executor is on him.-In re Peck (Sup.) 76.
Where administrators sell the assets of the
decedent for anything except cash, they take Under Code Civ. Proc. 88 2731, 2742, 2743,
the risks of the sale.-In re Gilman's Estate surrogate's decree settling administrator's ac-
(Sur.) 1122.

count and decreeing distribution held conclusive

that administrator did not receive more per-
Surrogate held to have no jurisdiction to con- sonalty than he was entitled to as legatee.-
firm a contract of administrators to turn intes- Skillin v. Skillin (Sup.) 188.
tate's interest in a business over to a foreign
corporation and take stock for his interest.-In and guardian of an infant were settled in a pro-

Where the accounts of a deceased executor
re Gilman's Estate (Sur.) 1122.

ceeding between an administrator with the will
8 4. Allowance and payment of claims. annexed and guardian and the executor's admin-

The surrogate is without jạrisdiction to try istrator, such settlement was binding on the
and determine a disputed claim.-In re Hunt ward.-In re Turner (Sup.) 573.
ington's Estate (Sur.) 220.

The Supreme Court held to have equal juris-
Under Code Civ. Proc. $ 2722, held, that sure- diction with surrogate court of an action requir-
ties of an administrator could not object to ing executors to account.-Haughian v. Conlon
the payment of claims of creditors which have (Sup.) 586.

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