5. Objection, how presented to that part which relates to other like
offenses.] If the witness in relating the conversation which took place at
the interview states facts that are incompetent and inadmissible against
the defendant, because they tend to show the commission by the defendant
of other similar crimes, the defendant should request the court to instruct
the witness to state only that part of the conversation which relates to the
commission of the crime charged in the indictment, or, as the evidence of
other similar crimes is received, should move to strike it out and have the
jury instructed to disregard it; if he neglects to do this he cannot raise upon
appeal the question whether the entire conversation was admissible in
evidence. Id.
6. Action to set aside a 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.
Held, that section 829 of the Code of Civil Procedure did not render the
grantee 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.
Contradiction of a witness having written statements by the wit-
ness marked for identification and subsequently reading them.] Where, upon
the trial of an action, witnesses called by the plaintiff testify on cross-
examination that they signed certain written statements concerning the
matter under investigation and such statements are then marked for identifi-
cation at the request of the defendants, the defendants are entitled, as a
part of their own case, to read the whole of such written statements in
evidence for the purpose of contradicting the witnesses who made them.
HANLON v. EHRICH..
Surrogate-proof that an administrator, as such, holds securities
found in his decedent's safe deposit vault.] An admission by an administrator
that he "found" certain securities in his decedent's safe deposit vault is
sufficient to warrant the conclusion that his possession of such securities
was in his capacity as administrator. MATTER OF CASE v. SPENCER ... ... 454
Statute of Frauds — omissions in a writing cannot be supplied by oral
proof] Where a written memorandum of a contract, within the Statute of
Frauds, does not express all the matters which the Statute of Frauds requires
such a memorandum to state, oral evidence is not admissible to supply the
deficiency. SEYMOUR v. WARREN .
10. Testimony of an interested witness the jury may credit it in part
only.] A jury is not obliged to accept as true the entire testimony of any
interested witness, but may accept such part thereof as they think credible
and reject the rest. MCGAHIE . MCCLENNEN..
11. Negligence is not necessarily implied from the fact that horses run
away.] The mere fact that a team of horses runs away does not necessarily
imply negligence on the part of the driver. Id.
Alienation of a wife's affections-evidence of unlawful intercourse
is competent in aggravation of damages-a copy of a letter admitting such
intercourse written by the wife and addressed to the defendant is competent
evidence on the plaintiff's behalf it is not a confidential communication
between the husband and wife, though written in the former's presence.
Action for malicious prosecution - newspaper articles are competent
to show the notoriety given to the plaintiff's arrest - not, however, where
they contain the plaintiff's version of the matter proof as to the pecuniary
condition of the defendant is incompetent. BROWN v. SMALLWOOD....
See MALICIOUS PROSECUTION.
Negligence-injury from defectively insulated electric wires - evi-
dence as to the condition of the wires previous to the accident inferred
from their subsequent condition.
KENNEALY. WESTCHESTER ELECTRIC R. Co.....
Charge that the jury may consider the non-production of a paper in
the possession of the plaintiff's attorney, which would explain the transac-
tion at issue it is proper although such paper is in court and accessible.
WERR v. KOHLES...
Intent to charge debts upon real estate-it must be in exoneration,
not merely in aid, of the personalty-proof required thereof — insufficiency
of the personal property to pay the debts, when sufficient evidence of such
intent. TURNER v. MATHER.
Building contract - under a complaint alleging performance thereof,
excuse for non-performance cannot be shown-nor where such proof is
received over objection can the complaint be thereafter made to conform to
the proof. ROWE v. GERRY....
Will-an affidavit of the testatrix, made subsequent to its execution,
stating that she did not know the lawyer who drew and attended to its exe-
cution, is not evidence that she did not execute it. MATTER OF LAWLOR... 527
See WILL.
Action to have a bill of sale absolute in form adjudged to have been
given as security only what proof is required to sustain it-fraud or mis-
take need not be established. DONNELLY v. MCARDLE..
Fire insurance policy-an oral agreement contemporaneous with &
written agreement of appraisal is incompetent - incompetent evidence dis-
regarded on a motion to direct a verdict.
TOWNSEND . GREENWICH INSURANCE Co......
See INSURANCE.
Negligence expert testimony as to whether a trench should be
braced or sheathed - when an opinion on the precise question the jury is to
pass on is allowable. SULLIVAN v. CITY OF ROME..
Husband and wife- evidence insufficient to establish desertion of a
wife by her husband-proof that the wife is likely to become a public
charge. PEOPLE v. CROUSE...
Real estate broker's commissions-effect of an admission by his prin-
cipal that he was entitled to them - his failure to disclose the name of his
client. METCALFE v. GORDON...
Negligence testimony by a witness that he did not hear an engine
bell or whistle-admission by him that he had stated the contrary but was
not under oath. GLENNON . ERIE R. R. Co.....
Insurance what proof that the insured was found hanged estab
lishes suicide rather than murder.
SEYBOLD v. SUPREME TENT...
What is sufficient evidence of an attorney's employment to collect a
policy of life insurance. MATTER OF SWEENEY...
Fire insurance policy- competency of a list of articles wholly
destroyed-purchase price as evidence of value.
CHEEVER v. SCOTTISH UNION & N. INs. Co. (No. 1)...........
See INSURANCE.
Verdict when set aside because the amount thereof is not justified
by the evidence. MYERS v. MYERS...
Attorney's compensation — the result of his services is important.
TOWN OF HEMPSTEAD . CITY OF NEW YORK.....
See ATTORNEY AND CLIENT.
Who is competent to state the speed of a car.
FISHER . UNION RAILWAY CO....
Doctrine of res ipsa loquitur — when applicable in negligence cases.
See NEGLIGENCE.
Of negligence or contributory negligence.
Proof competent under particular allegations of pleadings.
As to the method of offering evidence, excepting to its admission or rejec-
tion, etc.
EXECUTION — Supplementary proceedings — an execution issued and returned
unsatisfied is a prerequisite thereto.] 1. Froceedings supplementary to execu-
tion have taken the place of the former bill of discovery, and as such a bill
would lie only where a valid execution had been issued and returned
unsatisfied, such matters are prerequisites to the institution of proceedings
supplementary to execution. MATTER OF LISNER . TOPLITZ...
2. When sustained where they are instituted before, and a receiver is
appointed after, the return of the execution.] Upon an affidavit made by a
judgment creditor's attorney, alleging that an execution had been issued on
the judgment and had been returned unsatisfied, an order for the examina-
tion of the judgment debtor in proceedings supplementary to execution was
granted March 13, 1902. The order recited that the issuing of the execu
tion and its return unsatisfied had been shown to the satisfaction of the
court.
The execution upon the judgment was not formally returned and filed
with the county clerk until the morning of March 14, 1902, although the
deputy sheriff who had charge of the execution had made an entry of its
return upon the sheriff's records on March 13, 1902.
March 14, 1902, after the return of the execution, a receiver of the judg-
ment debtor's property was appointed in the proceeding.
Held, that an order denying a motion made by a junior judgment cred-
itor to vacate the order for the examination of the judgment debtor and
the order appointing the receiver should be affirmed. Id.
3. Arrest of a plaintiff suing in tort, for non-payment of costs.] In an
action of tort, in which the defendant is liable to arrest and imprisonment if
the plaintiff is successful, a judgment in favor of the defendant for costs
may be enforced by an execution against the person. SAFFIER. HAFT.... 284
EXECUTOR AND ADMINISTRATOR- Action to compel executors to sell
real estate and to account when not maintainable — complete relief in the Sur-
rogate's Court-questions raised by an answer not considered where the complaint
is dismissed.] 1. In an action brought by a legatee and devisee under a will
to compel the executors to sell certain land and to account for their adminis-
EXECUTOR AND ADMINISTRATOR- Continued.
tration of the estate, some of the defendants served answers in which they
demanded the same relief as that sought in the complaint, while another one
of the defendants demanded an interpretation of the will. The will conferred
on the executors a discretionary power of sale, but provided that the execu-
tors should not be held responsible to any one "for mistakes or errors of judg-
ment, or other, or except for actual, malfeasance in the performance of their
duties as such executors."
Hell, that as it did not appear that the delay in the sale of the real estate
was due to malfeasance or misconduct on the part of the executors, or
that the plaintiff would suffer any injury from such delay, the action was
not maintainable so far as the plaintiff sought to compel a sale of the real
estate;
That it was not maintainable for an accounting, as the plaintiff could
obtain complete relief in that respect in the Surrogate's Court;
That the court was justified in refusing to retain jurisdiction of the case
for the purpose of settling the collateral questions raised by the defendant
asking for a construction of the will. LEVETT v. POLHEMUS.
2. Surrogate his power to turn an accounting instituted by the executors
of a deceased executor into a judicial settlement.] Where one of two executors
of a will dies, and his personal representatives institute a voluntary proceed-
ing for the settlement of his accounts and bring all of the parties interested
in the estate before the court, the surrogate has jurisdiction, under section
2606 of the Code of Civil Procedure, as amended by chapter 409 of the Laws
of 1901, to turn the accounting into a judicial settlement.
In such a case the court has precisely the same jurisdiction it would have
had if the letters of the deceased executor had been revoked during his
lifetime and he had been called upon to deliver up the assets of the estate
rea.aining in his hands. MATTER OF FURNISS..
3.- Commissions taken by an executor before their allowance by the surro-
gate.] The allowance of commissions to an executor is a matter to be deter-
mined by the surrogate, and an executor has neither the power nor the right
to pay or reserve commissions to himself until they have been ascertained and
allowed in the manner provided by statute.
Under section 2730 of the Code of Civil Procedure such allowance should
not be made until the settlement of the estate.
Semble, that the proper remedy for such a payment by the executor to him-
self is to charge him with interest thereon from the date of its withdrawal. Id.
4. Claim for board by a brother against the estate of his deceased sister
-proof required to sustain it.] Upon an executor's accounting the executor,
who was a brother of his testatrix, presented a claim for board and attend-
ance furnished to the testatrix for a period of five or six years, during which
time she had resided with the executor and his wife. The only evidence
tending to establish an agreement on the part of the testatrix to pay for such
board and attendance was given by a son of the executor, who testified that
he heard the testatrix say, upon an occasion when she had come into pos-
session of a sum of money, that now she would be able to repay the witness'
father and mother for all that they had done for her, if not before, then
after, her death.
Held, that the relationship existing between the testatrix and the executor
raised the presumption that the board and attendance were furnished
gratuitously, and that the evidence was not sufficient to rebut this
presumption. Id.
Surrogate jurisdiction of, to order securities, found by an adminis-
trator in his decedent's safe deposit vault, to be delivered over to one claim-
ing ownership thereof - proof that the administrator, as such, holds the
securities Code of Civil Procedure, section 2472, subdivisions 3 and 4, is
not applicable to such a case. MATTER OF CASE v. SPENCER...
Proceedings for the sale of a decedent's real property for the payment
of debts-a mortgage given by a devisee pending such proceedings to which
he, but not the mortgagee, is a party is cut off by a sale thereunder.
RICHMOND v. FREEMAN'S NATIONAL BANK..
EXECUTOR AND ADMINISTRATOR — Continued.
Transfer tax-annuity to an executor and trustee together with his
commissions when, in the case of a life estate, the estate in remainder is
presently taxable. MATTER OF HUBER
Insurance-payable to a designated beneficiary and at the option of
the company to the administrator- the administrator cannot sue therefor.
RUOFF v. JOHN HANCOCK MUT. LIFE Ins. Co......
Will-gift of the residuary estate in trust - authority of the executor
to sell stocks and bonds included in the residuary estate.
MATTER OF N. Y. LIFE INSURANCE & TRUST CO.....
See WILL.
FEE- Of an attorney—the result of his services is important.
See ATTORNEY AND CLIENT.
Of an executor and administrator.
See EXECUTOR AND ADMINISTRATOR.
Upon a loan procured by a broker.
See PRINCIPAL AND AGENT.
FILING- Of a chattel mortgage.
See MORTGAGE.
- Of a policy of insurance.
Real property fraudulently purchased with trust funds and con-
veyed by the trustee - money received by the trustee in bankruptcy of such trustee
on the compromise of a creditor's suit brought for its recovery - the money is not
recoverable by the beneficiary of the trust fund.
Action to set aside a 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.
See BURDICK v. BURDICK...
Action under section 2653a of the Code of Civil Procedure to obtain an
adjudication that a will was made through undue influence and without testa-
mentary capacity-direction of a verdict - additional allowance of costs.
See HAUGHIAN . CONLAN
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