perpetuity was not established, but at most
a license revocable by J. C., his heirs or
representatives.-Id.
1. In ejectment plaintiff must stand on his
own title, and the legal title will prevail.—
Bond v. Collins et al., 90.
2. The rule that a mortgagee has only a lien
on the title applies only to ordinary mort-
gages.-Id.
3. An equitable mortgagor must proceed in
equity and cannot bring ejectment. The
mortgagee's only remedy is by foreclosure,
after which ejectment may be brought
against the equitable mortgagor.-Id.
4. When the deed under which a person
claims adverse possession of real property
is void a conveyance by the person against
whom such adverse possession is claimed is
not void, and his grantee must sue to re-
cover such real property in his own name,
and not in that of his grantor; but the pur-
chaser of real property sold under an exe-
cution fraudulently issued, without leave of
the Court, after more than the prescribed
period of time has elapsed during which
an execution can be issued without obtain-
ing such leave, and under which no effort
was made to satisfy the judgment out of
the personal property of the debtor, re-
ceives a colorable title from the sheriff's
deed, and the subsequent grantee of the
judgment debtor must sue to recover such
real property in the name of his grantor.-
Van Voorhis v. Kelly et al., 308.
5. In such an action, allegations in the com-
plaint that defendants, who hold the prop-
erty, unlawfully obtained its possession and
hold it adversely to plaintiff, are equivalent
to the usual formal allegations that plaintiff
has been dispossessed and that the prop
erty is wrongfully withheld from him by
defendants, and the complaint will not be
held bad on demurrer for the want of said
allegations.-Id.
EMINENT DOMAIN.
1. Doubted, Whether Ch. 582, § 4 Laws of
1864, providing that if the owner of land
taken for railroad purposes fails to have
awarded to him more than the company of-
fered him before the appointment of com-
missioners he shall pay the costs of the
commission, is constitutional.-In re The U.
& D. RR. Co. v. Gross, 123.
2. Commissioners appointed to award dam-
ages for the taking of land for railroad
purposes awarded much less than the value
of the property taken, according to the
testimony of every witness put upon the
stand. Held, An arbitrary exercise of power
not justified by the law.-In re The N. Y.,
W S. & B. RŘ. Co. v. Yates, 272.
3. An order of General Term, in proceedings
by a railroad to acquire title to lands, va-
cating an award and directing a new ap-
praisal before new commissoners is not
reviewable by the Court of Appeals, even
though there is also an erroneous decision as
to costs. In re application of the N. Y., W.
S. & B. RR. Co. to acquire land of Walsh et
al. 350.
4. The General Term, on reversing an order
of confirmation in such proceedings and ap-
pointing new commissioners, has no power
to award costs against the land owners.-Id.
5. After the discontinuance of a former pro-
ceeding to acquire title, under which the
company obtained possession, it obtained
an order allowing it to retain possession on
leaving open a gap for the passage of ves-
sels. The order of confirmation in the
present proceeding provided that on pay.
ment of the awards the company should
have complete possession and all former in-
consistent orders were annulled. The
company paid the awards and closed the
gap. Held, That the company did not
thereby preclude itself from appealing.—Id.
6. Where counsel sent a letter to the commis-
sioners after the case had been submitted to
them, but the letter contained only certain
computations which had been made orally
before the commissioners at the hearing,
Held, An irregularity, but not such as to
vitiate the report.─In re application of the
N. Y., W. S. & B. RR. Co. to acquire land of
Church, 353.
7. In proceedings to take land for railroad
purposes it appeared that the premises were
divided about equally by the Erie Canal.
The part south of the canal had a valuable
spring upon it which was connected by a
pipe with the north part, where the houses
and barns were, and it furnished all the
water supply to the north part. The north
and south parts were connected by a farm
bridge. The land taken was in the south
part. The pipe under the canal had re-
mained there thirteen years. Held, That in
appraising the value the farm should be
considered as a whole, and that the spring
was an element of value to both parties and
was properly made an item of the dam-
ages. In re The Boston, H. T. & W. RR.
Co. v. Turnbull et al., 375.
8. When no order of confirmation of the re-
port of commissioners in proceedings to take
land for a railroad has been granted the
company has a right to abandon the pro-
ceeding. In re application of the N. Y., W.
S. & B. RR. Co. to acquire lands of Watson,
9. An extra allowance cannot be granted in
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.
1. On an application to condemn lands for a
public market appellant joined it by a pe-
tition 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 having 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-
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
testined 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; USURY, 5.
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 a 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
its existence upon the event of the suit is
such an interest as will disqualify a wit-
ness under § 829 of the Code of Civ. Pro.
-Steele v. Ward et al., 111.
6. Incompetency of witnesses must be made
out by the party alleging the same.-Id.
7. In an action for the purchase price of a
machine, where the defence is that the sale
was with warranty and on condition that if
it did not work as represented it might be
returned, plaintiff is entitled to the benefit
of any admissions of defendant tending to
establish a satisfaction with the machine,
and it is error to exclude them.-Nunn v.
Reitzenthaler et al., 114.
8. A copy of a letter in relation to the sub-
ject of the action written by plaintiff is
admissible to be read in connection with
defendant's letter in reply thereto.-Id.
9. In an action for the price of barrels where
their number was in dispute, defendant
offered to show that one G. had carted
all the barrels received from plaintiff to
defendant's farm; that there they had been
filled with fruit and that immediately
thereafter they had been counted and that
their number was so many. This evidence
was excluded. Held, Error.-Bennett et al.
v. Nelson, 117.
10. Where there is direct evidence to the
particular matter in question evidence of
custom on other occasions is irrelevant.-
Douglas v. Haberstro, 147.
11. The question as to what effect certain
physical exertion would have upon one's
handwriting, or what it indicated as to his
ability to write, if proper for an expert, is
one for a medical expert rather than for an
expert in handwriting.-Langley v. Wads-
worth, 148.
12. Although the party did not meet the de-
ceased personally in the transaction in
question, but was represented by attorney
who acted under his direction, yet the
transaction was personal, within the stat-
ute, so far as to exclude the living party's
testimony, but the attorney's testimony as
to conversations with his principal was
competent.-Pease v. Barnett, 181.'
13. A deposition of one of the defendants,
taken in supplementary proceedings, is
competent against him as an admission,
and where he has given evidence in behalf
of all the defendants it is competent against
ail as affecting his credibility.— Wright v.
Nostrand et al., 248.
14. In an action by an employee against his
employer to recover damages for injuries
sustained by reason of the defective condi-
tion of a machine which he was employed
to run, evidence is admissible to show that
a similar accident had happened a short
time before, for the purpose of bringing
home knowledge to the employer of the
dangerous character of the machinery.-
Guilladen v. The Coast Wrecking Co., 303.
15. In such an action it is competent to show
how the defect in the machine was reme-
died shortly after plaintiff's injury, for the
purpose of showing how easily and safely
it could have been done before.-Id.
16. When the fact of non-payment is alleged
in the complaint as a necessary and ma-
terial fact to constitute a cause of action
a defense of payment is admissible under
a general denial.—Knapp v. Roche, 324.
17. Evidence of satisfaction, in whole or in
part, by one joint tort feasor of the dam-
ages occasioned by the joint wrongful act
of both is proper in mitigation of dam-
ages.-ld.
18. For the purpose of impeaching a witness
it is error to admit testimony showing that
he had made different statements from those
testified to on the trial unless the attention
of the witness sought to be impeached has
been first called to the place, time and cir-
cumstance of making the alleged statement
and he has denied making the same.-How-
ard v. Howard, 330.
19. F., a deputy sheriff, levied an execution
against B. on the property of B.'s wife,
upon the promise of the attorney in the ex-
ecution to indemnify the sheriff against loss
by such levy. Mrs. B. sued the sheriff and
recovered. In an action by the sheriff
against the executors of the attorney upon
the promise, Held, That F. was not a com-
petent witness to prove the promise, being
a person interested in the event within
the meaning of § 829 of the Code.-Barton
v. Seramling et al., 356.
20. In an action to set aside a deed for fraud,
undue influence, etc., the wife of the gran-
tor testified to conversations with him in
which he spoke of his fear of the conse-
quences if he did not convey. A motion
to strike out this testimony was made on
the grounds that it was incompetent; that
she was interested in the event, and that she
was detailing transactions between husband
and wife. The motion was denied. Held,
Error; that the evidence should have been
excluded and that the objection was suffi-
ciently specific.-Sanford et al. v. Ellithorpe
et al., 423.
21. In a case which involves an inquiry as to
whether the act of a person was induced by
fraud or duress his subsequent declarations
are inadmissible to establish the point in
issue.-Id.
22. Where M. sued a railroad company for per-
sonal injuries and was examined as a wit-
ness in his own behalf, but died before
judgment, and a new action was brought
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.
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
had 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.
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.-Id.
27. Declarations, to become a part of the res
gesta, 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. & H. 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 gesta and were not competent in an
action to recover damage for his death.-
Id.
29. The opinions of witnesses not experts or
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.
30. To bring evidence as to a transaction or in-
terview with a deceased person within the
prohibition of 829 it is not necessary
that such transaction or interview was pri-
vate or confined to the witness and deceas
ed.-ld.
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.
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.
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,
that 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.
1. Where by the terms of a will, an executor
also becomes a trustee, powers being con-
ferred and duties imposed upon him not
incident to his office of executor, the trust
and executorship are distinguishable and
separate and a separate commission may be
allowed for services as trustee to be paid
out of the trust fund.-Blake et al. v. Blake
et al., 6.
2. Where the trusts vested in the executors
are not personal and do not involve the ex-
ercise of discretion, but are attached simply
to the office, an executor whose letters
have been revoked is not liable for future
losses to the estate arising from the negli-
gence of his co-executors.-Earle v. Earle, 35.
3. Where the executors entrust the manage-
ment of the estate to a son of their testator
they are responsible for his conduct and
liable for any losses resulting from his im-
proper or negligent management. -Id.
4. The widow, who was one of the executors,
was entitled to the income of one-third of
the estate for life. The principal had never
been in the hands of her co-executor. Held,
That as the fund had been lost through
the negligence of both, she should contri-
bute the income toward her share of the
loss.-Id.
5. Prior to the adoption of § 1814, New Code,
an administrator could sue in his own name
upon a cause of action which had accrued
in favor of the estate since the death of the
intestate; and hence could set off such a
demand against a claim alleged against him
individually.--Silvernail v. Felts, 124.
6. When a testator proposed to add a codicil
to his will providing for his nephews, but
was deterred by his executor, who said he
would pay to them the intended legacies,
and the executor was not a beneficiary un-
der the will in any manner, Held, That he
was not personally liable upon his promise,
and especially not where it was understood
between him and the testator that the lega-
cies were to be paid from the estate of the
latter. If a promise by an executor, under
such circumstances, can be held to impose
a trust upon the testator's estate, such trust
can be enforced only against the estate of
the testator.-Bull v. Bull, 130.
7. Where the disposition of a note depends,
under the provisions of its owner's will,
upon its collectibility, the executor holds
title to the note, and is entitled to judg
ment upon it for the purpose of collecting
it if possible.-Thompson v. Proctor, 182.
8. Testator devised all his residuary estate to
his executors with power of sale and di-
rected them to consolidate it in a perman-
ent fund and divide it in accordance with
the terms of the will. One of the executors
executed a lease of a piece of the real estate
containing an agreement to sell, but the
other executor refused to sign and subse-
quently refused to execute the deed. Held,
That the real estate could only be conveyed
by a deed executed by both executors and
that the agreement in the lease was not
binding upon the one who refused to sign:
that the premises sought to be conveyed
were not personal property for the purposes
of a sale.- Wilder v. Ranney et al., 400.
9. Chap. 383, Laws of 1877, did not impose
an imperative duty on courts and surrogates
to appoint the Brooklyn Trust Company as
administrator in the cases mentioned, but
merely conferred an authority to be exer-
cised in the discretion of such courts or
surrogates, and the exercise of such discre-
tion cannot be reviewed unless it ap-
pears that there was such a gross and
arbitrary exercise of the power as amounts
to an abuse of a legal discretion.-In re es-
tate of Goddard, 419.
10. So far as said act of 1877 purports to
confer power to issue letters to the Trust
Company in the cases provided for in Chap.
124, Laws of 1882, it is repealed by the lat-
ter act.-Id.
11. Where executors agreed, partially in ex-
cess of their authority, to sell their testa-
tor's land, Held, That the agreement was
void as against the estate, but as between
themselves and the vendee the executors
were personally bound so far as the terms of
the agreement were in excess of their au-
thority.-Bostwick v. Beach, 435.
12. Where upon an application by a legatee
for a final accounting, the answer of the
executor does not deny the material allega-
tions of the petition or deny the petitioner's
rights or set up facts rendering them doubt.
ful, the case is not within subd. 1, §2718 of
the Code. In re application for accounting
of Macaulay, 445.
13. An objection to such an application on
the ground that it is not shown that there is
money or other property applicable to the
payment of the legacy is premature.—Id.
14. To entitle the same persons to commis-
sions as executors and as trustees the will
must provide, either expressly or by fair in-
tendment, for the separation of the two
functions and duties, one to precede the
other and to be performed before the other
is begun, and must not provide for the co-
existence of the two duties continuously
and from the beginning, and besides, the
duty of trustee must be actually entered
upon and its performance begun, either by
the real severance of the trust fund from the
general assets or a judicial decree which
wholly discharges the executor and leaves
him acting only as trustee.—Johnson v.
Lawrence et al., 517.
15. Testator's will directed his executors to
carry on his business during the life of his
wife and daughter, pay them certain sums
for support, and upon their death to close
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