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gages.-Id.

perpetuity was not established, but at most stand. Held, An arbitrary exercise of power
a license revocable by J. C., his heirs or not justified by the law.-In re T'he N. Y.,
representatives.-Id.

W $. & B. . Co. v. Yates, 272.
See DEEDS, 1.

3. An order of General Term, in proceedings

by a railroad to acquire title to lands, va-
EJECTMENT.

cating an award and directing a new ap-

praisal before new commissoners is not
1. In ejectment plaintiff must stand on his reviewable by the Court of Appeals, even

own title, and the legal title will prevail. - though there is also an erroneous decision as
Bond v. Collins et al., 90.

to costs.In re application of the N. Y., W.
2. The rule that a mortgagee has only a lien

S. & B. RR. Co. to acquire land of Walsh et

al. 350.
on the title applies only to ordinary mort-

4. The General Term, on reversing an order

of confirmation in such proceedings and ap-
3. An equitable mortgagor must proceed in
equity and cannot bring ejectment. The

pointing new commissioners, has no power

to award costs against the land owners.-- Id.
mortgagee's only remedy is by foreclosure,
after which ejectment may be brought | 5. After the discontinuance of a former pro-
against the equitable mortgagor. Id.

cceding to acquire title, under which the
4. When the deed under which a person

company obtained possession, it obtained
claims adverse possession of real property

an order allowing it to retain possession on

leaving open a gap for the passage of ves-
is void a conveyance by the person against

sels. The order of confirmation in the
whom such adverse possession is claimed is
not void, and his grantee must sue to re-

present proceeding provided that on pay.
cover such real property in his own name,

ment of the awards the company should
and not in that of his grantor; but the pur-

have complete possession and all former in-

consistent orders were annulled. The
chaser of real property sold under an exe-
cution fraudulently issued, without leave of

company paid the awards and closed the

gap. Held, That the company did not
the Court, after more than the prescribed
period of time has elapsed during which

thereby preclude itself from appealing.-Id.
an execution can be issued without obtain-

6. Where counsel sent a letter to the commis-
ing such leave, and under which no effort sioners after the case had been submitted to
was made to satisfy the judgment out of them, but the letter contained only certain
the personal property of the debtor, re- computations which had been made orally
ceives a colorable title from the sheriff's before the commissioners at the hearing,
deed, and the subsequent grantee of the Held, An irregularity, but not such as to
judgment debtor must sue to recover such vitiate the report. - In re application of the
real property in the name of his grantor.- N.Y., W, S. & B. RR. Co. to acquire land of
Van Voorhis v. Kelly et al., 308.

Church, 353.
5. In such an action, allegations in the com- 7. In proceedings to take land for railroad

plaint that defendants, who hold the prop- purposes it appeared that the premises were
erty, unlawfully obtained its possession and divided about equally by the Erie Canal.
hold it adversely to plaintiff, are equivalent The part south of the canal had a valuable
to the usual formal allegations that plaintiff spring upon it which was connected by a
bas been dispossessed and that the prop. pipe with the north part, where the houses
erly is wrongfully withheld from him by and barns were, and it furnished all the
defendants, and the complaint will not be water supply to the north part. The north
held bad on demurrer for the want of said and south parts were connected by a farm
allegations.-Id.

bridge. The land taken was in the south

part. The pipe under the canal had re-
See ATTORNEYS, 4.

mained there thirteen years. Held, That in

appraising the value the farm should be
EMINENT DOMAIN.

considered as a whole, and that the spring
1. Doubted, Whether Ch. 582, § 4 Laws of

was an element of value to both parties and
1864, providing that if the owner of land

was properly made an item of the dam-
taken for railroad purposes fails to have

ages.-In re The Boston, H. T. & W. RR.
awarded to him more than the company of-

Co. v. Turnbull et al., 375.
fered him before the appointment of com-

8. When no order of confirmation of the re-
missioners he shall pay the costs of the

port of commissioners in proceedings to take
commission, is constitutional.-In re The U.

land for a railroad has been granted the
& D. RR. Co. v. Gross, 123.

company has a right to abandon the pro-
2. Commissioners appointed to award dam-

ceeding -In re application of the N. Y., W.
ages for the taking of land for railroad

8. & B. RR. Co. to acquire lands of Watson,

536.
purposes awarded much less than the value
of the property taken, according to the 9. An extra allowance cannot be granted in
testimony of every witness put upon the such a proceeding.-Id.

10. Where upon appeal from an order in pro-

ceedings to take lands for a street, it ap-
pears that some of the appellants and others
similarly situated have received the awards
made to them for their lands, it is error to
set aside the proceeding. Acceptance of the
award is a waiver of any right to object to
the constitutionality of the act under which
the proceeding is taken and an affirmance
of the validity of the whole proceeding.–

In re application of Woolsey et al., 546.
11. One who is not assessed for the improve.

ment cannot unite in a motion to vacate the

proceeding.-ld.
See ESTOPPEL, 1.

clusive upon the parties not only as to mat-
ters actually determined, but also as to any
matters that might have been litigated and
decided therein as incident to or essentially
connected with the subject matter of the
litigation either as matter of claim or de-

fense.Patrick v. Shaffer, 415.
8. In an action in Nebraska for money loaned

the defendant denied the loan and alleged
that he had loaned money to plaintiff and
that the moneys alleged to have been loaned
by plaintiff were payments. Defendant
testified that he made the loan and took a
deed of land which he was to hold as se-
curity. Plaintiff testified that he sold the
land to defendant. Plaintiff recovered and
in an action on the judgment defendant set
up as a counterclaim the same facts alleged
as a defense in the former action. Held,
That the judgment in the Nebraska action
was conclusive as to defendant's claim, and
that he could not set it up as a counter-
claim although it was only used as matter

of defense in the former action.-Id.
See ASSESSMENTS ; BROKERS, 3; CHATTEL

MORTGAGE, 1; CONTRACT, 20 ; CORPORA-
TIONS, 23 ; LEASE, 7 ; UstRY, 5.

EVIDENCE.

ESTOPPEL.
1. On an application to condemn lands for a

public market appellant joined it by a pe.
iition that one F. be appointed one of the
commissioners. Held, That he was there-
by estopped from attacking the proceeding
or the act under which it was brought. -

In re application of Cooper, 28.
2. Defendant was induced by false represen.

tations of one L. to convey certain land to
L.'s daughter, who gave a mortgage thereon
to L., and afterward reconveyed to defend-
ant. Plaintiff purchased the mortgage in
good faith and for value. Held, That
plaintiff baving bought on the faith and
credit of the mortgagor and being a bona
fide purchaser, defendant is estopped from
denying the title of her grantor and her
right to deal with the property as owner.-

Simpson v. Del Hoyo et al., 144.
3. Matters set up by defendant in his answer,

by way of defence only, and not as ground
of affirmative relief, are not conclusive
upon him in a subsequent action.-In re

estate of Wasser, 188.
4. To constitute an estoppel it must appear

that the acts and declarations of the party
to be estopped were designed to influence
the contract of another, and did so influ-

ence it— Weiderwax v. Jacques, 240.
5. A municipal corporation which receives

the fruits of labor, rendered on its request,
should be estopped from avoiding payment
by an irregularity or an invalidity created
by and known only to its own agents.-

Gilbert v. The Village of Margaretville, 256.
6. The fact that there are discrepancies be-

tween the sum claimed in the summons and
the amounts stated in a bill of particulars is
not conclusive against plaintiff. The
several amounts stated are admissions of
plaintiff which can be explained, and if the
referee allows a less sum than the largest
amount claimed it does not follow that he
erred or that plaintiff was impeached.-

Sherwood v. Hauser, 301.
7. A judgment in an action is final and con-

1. To render the admission or declaration of

one conspirator admissible against the
others, it must appear to have been made
in furtherance of the prosecution of the
common object, or constitute a part of the
res gesta of some acts done for that purpose.
Admissions of past transactions, of some-
thing already done for the accomplishment
of the object of the conspirators, is not
competent. - Baird v. The Mayor, &c., of

New York, 39.
2. Pending negotiations for settlement, de-

fendant referred plaintiff to his attorney as
authorized to speak for him. Held, 'That
evidence of what passed between the attor-
ney and plaintiff was admissible, unless it
was a mere offer to do something by way

of compromise. - French v. Powers, 87.
3. Whatever tends to refute an attempted

explanation is equally material with the

evidence given in such explanation.-Id.
4. In an action to foreclose à mortgage

given by defendant and wife to plaintiff's
testator W., the answer averred that both
defendants made the mortgage, received
the money, and that the transaction was
usurious. Held, That the wife could not
by testifying that she took no part in the
transactions beyond signing the mortgage
qualify herself to give evidence against
plaintiff as to the facts of the loan. Also,
that defendant was incompetent to testify
when and where the money was paid and
that the mortgagee took no part in the
execution of the bond and mortgage. -
Wilson v. Reynolds et al., 107.

5. An inchoate right of dower depending for time before, for the purpose of bringing

its existence upon the event of the suit is home knowledge to the employer of the
such an interest as will disqualify a wit- dangerous character of the machinery.-
ness under $829 of the Code of Civ. Pro. Guilladen v. The Coast Wrecking Co., 303.
-Stecle v. Ward et al., 111.

15. In such an action it is competent to show
6. Incompetency of witnesses must be made

how the defect in the machine was reme-
out by the party alleging the same.-Id.

died shortly after plaintiff's injury, for the
7. In an action for the purchase price of a

purpose of showing how easily and safely
machine, where the defence is that the sale

it could have been done before.-Id.
was with warranty and on condition that if
it did not work as represented it might be

16. When the fact of non-payment is alleged
returned, plaintiff is entitled to the benefit

in the complaint as a necessary and ma-
of any admissions of defendant tending to

terial fact to constitute a cause of action
establish a satisfaction with the machine,

a defense of payment is admissible under
and it is error to exclude them.- Nunn v.

a general denial.-Knapp v. Roche, 324.
Reitzenthaler et al., 114.

17. Evidence of satisfaction, in whole or in
8. A copy of a leiter in relation to the sub- part, by one joint tort fensor of the dam-
ject of the action written by plaintiff is

ages occasioned by the joint wrongful act
admissible to be read in connection with of both is proper in mitigation of dam-
defendant's letter in reply thereto.- Id.

ages.—1d.
9. In an action for the price of barrels where

18. For the purpose of impeaching a witness
their number was in dispute, defendant

it is error to admit testimony showing that
offered to show that one G. had carted

he had made different statements from those
all the barrels received from plaintiff to

testified to on the trial unless the attention
defendant's farm ; that there they had been

of the witness sought to be impeached has
filled with fruit and that immediately

been first called to the place, time and cir-
tliereafter they had been counted and that

cumstance of making the alleged statement
their number was so many. This evidence

and he has denied making the same.-How-
was excluded. Held, Error. - Bennett et al.

ard v. lIoward, 330.
v. Nelson, 117.

19. F., a deputy sheriff, levied an execution
10. Where there is direct evidence to the

against B. on the property of B.'s wife,
particular matter in question evidence of upon the promise of the atiorney in the ex-
custom on other occasions is irrelevant.-

ecution to indemnify the sheriff against loss
Douglas v. Haberstro, 147.

by such levy. Mrs. B. sucd the sheriff and

recovered. In an action by the sheriff
11. The question as to what effect certain against the executors of the attorney upon

physical exertion would have upon one's the promise, Held, That F. was not a com-
handwriting, or what it indicated as to his petent witness to prove the promise, being
ability to write, if proper for an expert, is person interested in the event within
one for a medical expert rather than for an the meaning of § 829 of the Code.--Barton
expert in handwriting.-Langley v. Wads- v. Scramling et al., 356.
worth, 148.

20. In an action to set aside a deed for fraud,
12. Although the party did not meet the de- undue influence, etc., the wife of the gran-

ceased personally in the transaction in tor testified to conversations with him in
question, but was represented by attorney which he spoke of his fear of the conse-
who acted under his direction, yet the quences if he did not convey. A motion
transaction was personal, within the stat- to strike out this testimony was made on
ute, so far as to exclude the living party's the grounds that it was incompetent; that
testimony, but the attorney's testimony as she was interested in the event, and that she
to conversations with his principal was was detailing transactions between husband
competent. —Pease v. Barnett, 181.

and wife. The motion was denied. Held,

Error ; that the evidence should have been
13. A deposition of one of the defendants, excluded and that the objection was suffi-

taken in supplementary proceedings, is ciently specific.-Sanford et al. v. Ellilhorpe
competent against him as an admission,

et al., 423.
and where he has given evidence in behalf
of all the defendants it is competent against 21. In a case which involves an inquiry as to
ail as affecting his credibility.- Wright v. whether the act of a person was induced by
Nostrand et al., 248.

fraud or duress his subsequent declarations

are inadmissible to establish the point in
14. In an action by an employee against his

issue.-Id.
employer to recover damages for injuries
sustained by reason of the defective condi- 22. Where M. sued a railroad company for per-
tion of a machine which he was employed sonal injuries and was examined as a wit.
to run, evidence is admissible to show that ness in his own behalf, but died before
a similar accident had happened a short judgment, and a new action was brought
subscribing witnesses to a will, as to the
mental condition of a deceased person, to
be competent, must be conclusions drawn
from the acts and declarations of deceased
sworn to by them.Holcomb v. Holcomb,
551.

a

after his death by his personal representa-
tives. Held, That the deposition made by
deceased in the former action is not compe-
tent evidence in the second action.-Mur.
phy v. The N. Y. C. & H. R.RR. CO., 434.

23. A notary public may issue several certifi-

cates of protest, each of which shall be
an original and competent as evidence.
Section 923 of Code of Civ. Pro. does not
forbid such construction.-Kellum v. Mc-
koon, 443.

31. A judgment roll is competent evidence for

or against either of the parties thereto in
any subsequent litigation between them in.
volving the same questions.— Peck v. Calla-
ghan, 565.
32. Declarations made by attendants for the

information of a physician when called to
attend the deceased, as to her symptoms,
are proper evidence. - The People v. Mc-

Keon, 571.
See AssIGNMENT FOR CREDITORS, 6 ; Con.

TRACT, 9, 13, 17: CONVERSION, 4; CRIMINAL
LAW, 3, 5, 6, 10; DEEDS. 8; DEFENSE, 3;
False PRETENCES; FIRE INSURANCE, 3;
FRAUD, 2, 3, 6, 10; LIBEL, 3, 5, 7; LOTTE-
RY, 1, 3; NEGLIGENCE, 7, 17, 30; NEGOTI-
ABLE PAPER, 1, 2, 5, 6; PAYMENT, 3; Rail-
ROADS, 8; RECEIPT; REPLEVIN, 2; SLAN-
DER; SUPPLEMENTARY PROCEEDINGS;
SURETYSHIP, 3; WILLS, 7, 8, 19, 26; 39, 41,
43; WITNESS.

24. In an action to recover for moneys embez-

zled an employee of plaintiff testified that
he kept a memorandum from day to day of
moneys received by defendant from cash
sales and gave the same to plaintiff, and
that defendant never saw it. Plaintiff tes-
tified that he copied the figures of the mem-
orandum correctly in a book and that he
bad lost the memorandum, and the book
was received in evidence. Held, Error ;
that the memorandum was not primary
evidence to charge defendant and was not a
writing the contents of which, if lost, could
be proved by secondary evidence.Peck v.
Valentine, 449.

EXCISE.

25. Delivery of a promissory note by the ma.

ker to the holder, creating the relation of
debtor and creditor between them, involves
no such succession of title or interest as
$ 829 of the Code contemplates. - Converse

v. Cook, 462.
26. Where the maker of a note is examined,

not in his own behalf or interest, but to
establish the liability of an indorser, his
testimony is not within the prohibition of

$ 829.-İd.
27. Declarations, to become a part of the res

gestæ, must accompany the act they are sup-
posed to characterize and must so harmo.
nize as to be obviously one transaction.-
Waldele v. The N. Y. C. & II. R. RR. Co.,

542.
28. Where deceased was found upon defend-

ant's track, bruised and mangled. Held,
That declarations made by him thirty min-
utes after the accident were not a part of
the res gestæ and were not competent in an
action to recover damage for his death.-

Id.
29. The opinions of witnesses not experts or

1. The conviction of the barkeeper of a licen-

see for the violation of the excise law com-
mitted upon the licensed premises ipso facto
annuls the license, even though the licensee
had no knowledge of such violation.—The

People v. Meyers, 377.
2. The provisions of the Act of 1873 giving

jurisdiction to Boards of Excise to annul
licenses created an independent remedy,-
Id.

EXECUTION.
1. Where plaintiff's team was sold under an

execution against him, Held, In the ab-
sence of proof that plaintiff had no other
property covered by the $250 exemption,
thai his omission to claim that the team was
exempt was a waiver of the exemption.
Moreover, any article exempt by the act of
1842 is liable to levy to satisfy a judg.
ment recovered for the price of property
which is of the class exempt by said act. —

Russell v. Dean, 5.
2. When, on a contest over the right to letters

of administration, the surrogate makes a
decree charging the costs of the proceedings
upon the contestant personally, the right to
issue execution against such contestant for
the collection of such costs for the benefit
of the estate is not lost by their payment
out of the estate by the consent of all parties
during the pendency of an appeal from
such decree which results in its affirmance.

In re estate of Bartlett, 65.
See MUTUAL AID SOCIETIES ; PENSIONS ; RE-

DEMPTION 1, 3 ; SHERIFFS, 3–6.

30. To bring evidence as to a transaction or in-

terview with a deceased person within the
prohibition of $ 829 it is not necessary
ihat such transaction or interview was pri-
vate or confined to the witness and deceas.
ed.-ld.

EXECUTORS, ETC.
1. Where by the terms of a will, an executor

also becomes a trustee, powers being con-

ferred and duties imposed upon him not That the real estate could only be conveyed
incident to his office of executor, the trust by a deed executed by both executors and
and executorship are distinguishable and that the agreement in the lease was not
separate and a separate commission may be binding upon the one who refused to sign :
allowed for services is trustee to be paid that the premises sought to be conveyed
out of the trust fund.-Blake et al. v. Blake were not personal property for the purposes
et al., 6.

of a sale. - Wilder v. Ranney et al., 400.
2. Where the trusts vested in the executors

9. Chap. 383, Laws of 1877, did not impose
are not personal and do not involve the ex-

an imperative duty on courts and surrogates
ercise of discretion, but are attached simply to appoint the Brooklyn Trust Company as
to the office, an executor whose letters

administrator in the cases mentioned, but
have been revoked is not liable for future

merely conferred an authority to be exer-
losses to the estate arising from the negli. cised in the discretion of such courts or
gence of his co-executors.-Earle v. Earle, 35.

surrogates, and the exercise of such discre-

tion cannot be reviewed unless it ap.
3. Where the executors entrust the manage- pears that there was such a gross and
ment of the estate to a son of their testator

arbitrary exercise of the power as amounts
they are responsible for his conduct and

to an abuse of a legal discretion.-In re 18-
liable for any losses resulting from his im-

tate of Goddard, 419.
proper or negligent management.-Id.

10. So far as said act of 1877 purports to '
4. The widow, who was one of the executors,

confer power to issue letters to the Trust
was entitled to the income of one-third of

Company in the cases provided for in Chap.
the estate for life. The principal had never

124, Laws of 1882, it is repealed by the lat-
been in the hands of her co-executor. Held,

ter act.-Id.
That as the fund had been lost through
the negligence of both, she should contri- 11. Where executors agreed, partially in ex-
bute the income toward her share of the cess of their authority, to sell their testa-
loss.-Id.

tor's land, Held, That the agreement was

void as against the estate, but as between
5. Prior to the adoption of $ 1814, New Code,

themselves and the vendee the executors
an administrator could sue in his own name

were personally bound so far as the terms of
upon a cause of action which had accrued

the agreement were in excess of their au-
in favor of the estate since the death of the thority.-Bostwick v. Beach, 435.
intesiate ; aud hence could set off such a
demand against a claim alleged against him 12. Where upon an application by a legatee
individually.--Silvernail v. Felts, 124.

for a final accounting, the answer of the

executor does not deny the material allega-
6. When a testator proposed to add a codicil tions of the petition or deny the petitioner's

to his will providing for his nephews, but rights or set up facts rendering them doubt.
was deterred by his executor, who said he ful, the case is not within subd. 1, $2718 of
would pay to them the intended legacies, the Code.-In re application for accounting
and the executor was not a beneficiary un- of Macaulay, 445.
der the will in any manner, Held, That he
was not personally liable upon his promise, 13. An objection to such an application on
and especially not where it was understood the ground that it is not shown that there is
between him and the testator that the lega- money or other property applicable to the
cies were to be paid from the estate of the payment of the legacy is premature.— Id.
latter. If a promise by an executor, under
such circumstances, can be held to impose 14. To entitle the same persons to commis-
a trust upon the testator's estate, such trust

sions as executors and as trustees the will
can be enforced only against the estate of must provide, either expressly or by fair in-
the testator.Bull v. Bull, 130.

tendment, for the separation of the two

functions and duties, one to precede the
m. Where the disposition of a note depends, other and to be performed before the other

under the provisions of its owner's will, is begun, and must not provide for the co-
upon its collectibility, the executor holds existence of the two duties continuously
tiile to the note, and is entitled to judg- and from the beginning, and besides, the
ment upon it for the purpose of collecting duty of trustee must be actually entered
it if possible. Thompson v. Proctor, 182. upon and its performance begun, either by

the real severance of the trust fund from the
8. Testator devised all his residuary estate to

general assets or a judicial decree which
his executors with power of sale and di-

wholly discharges the executor and leaves
rected them to consolidate it in a perman- him acting only as trustee.—Johnson v.
ent fund and divide it in accordance with

Lawrence et al., 517.
the terms of the will. One of the executors
executed a lease of a piece of the real estate 15. Testator's will directed his executors to
containing an agreement to sell, but the carry on his business during the life of his
other executor refused to sign and subse- wife and daughter, pay them certain sums
quently refused to cxecute the deed. Held, for support, and upon their death to close

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