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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