16. This action was brought upon a judgment recovered by the Rochester Bank against the defendant and others, and which the plaintiff claimed to own, by virtue of an assignment from the bank, and because he was the sole stockholder thereof at the time it ceased to do business. The judgment was recovered on a note made by and discounted for the defendant. The defenses set up in the answer herein were that the plaintiff never became the owner of, or paid value for the judgment; that, if any judgment existed, it belonged to one Clark, and that the plaintiff was not the real party in interest.

Upon the trial the defendant offered to prove by one Eldridge, one of the indorsers of the said note, and one of the judgment debtors, that he had paid the note to the president of the bank, the plaintiff, and requested him to bring the action against himself, the defendant, and another, in order that he might avail himself of the judgment to collect the amount thereof from the other parties. The testimony was rejected on the ground that it was immaterial, and tended to contradict a record, the witness having allowed a judgment by default to be recovered against him on the note:

Held, that it was error to exIclude the evidence.

That it did not tend to contradict the record, but only to show an independent agreement affecting the ownership of the judgment.

That the fact that the particular defense sought to be established was not set forth in the answer, was immaterial, as the evidence was not rejected on that ground. (Brown agt. Decker, 21 Hun, 199.)

18. The plaintiff having applied for a discharge in bankruptcy, entered into a composition with his creditors, by which he paid fifty-five per cent of his debts, and procured a discharge. In negotiating with the defendants, to whom he was then indebted, he asserted a claim for certain zinc of the value of $132.07, which he claimed to have sold to them, which claim they disputed. It was finally agreed that this claim should be, withdrawn from the compromise, the defendants stipulating that in case the plaintiff proved to the satisfaction of Mr. Gould's sons that the zinc was received by them, they would pay to him fifty-five per cent of the $132.07.

This action was brought to recover for goods, wares, &c., consisting of the said zinc, claimed to have been sold by the plaintiff to the defendants:

Held, that the action should in any event have been brought upon the agreement, and not for the goods sold.

That to recover upon the agreement the plaintiff should have shown that they had proved the delivery of the zinc to the satisfaction of Mr. Gould's sons, or at least that they had produced evidence which should have been satisfactory to them, and that, not having done so, they could not recover. (Wilson agt. Gould, 21 Hun, 446.)

19. This action was brought to charge the holders of stock in a corporation created under chapter 117 of 1853, and chapter 773 of 1870, with certain of the debts thereof. The defendants claimed that the stock was fully paid up, having been issued for the purchase of property necessary for the business of the company. The plaintiffs sought to recover on the ground that the stock had been fraudulently issued for property, the value of which had been greatly over-estimated by the trustees. The company was

formed for the purpose of laying out and subdividing land into building or villa plots, and improving and selling the same.

Upon the trial, the plaintiff called witnesses, who gave evidence as to the value of the lands purchased by the company; their opinions being based upon the value of the land for agricultural purposes. The defendant called, as a witness, one of the stockholders of the company, who testified that he had made propositions to the company for the purchase of several of the lots, soon after the purchase of the land by the company, and that he offered as much as $4,000 for a single lot. Upon the plaintiff's motion, so much of the answer as stated the price offered by him and refused by the company, was stricken out:

Held, that this was error. That if the jury should hold that the offer was made in good faith, it would bear with force upon the question as to whether or not there had been a fraudulent over

valuation of the land by the trustees. (Thurber agt. Thompson, 21 Hun, 472.)

them unsaleable, and that they had, for that reason, returned them to the plaintiffs. The plaintiffs then offered to disprove the statement made by the defendants as to the alleged defect in the caps; but the evidence was excluded, on the ground that they should have offered the testimony before closing their case:

Held, that it was error to exclude the evidence.

That the plaintiffs were justified in resting their case upon proof of the manufacture and delivery of the goods, and were not obliged to prove that particular defects therein, which the defendants might set up as defense, did not in fact exist. (Bancroft agt. Sheehan, 21 Пun, 550.)

22. The subscribing witnesses to a will should sign the same after it has been subscribed by the testator. (Rugg agt. Rugg, 21 Hun, 383.)

23. One named as an executor in a will is a competent witness in behalf of the proponents thereof, to establish the validity of its execution. (Id.)

24. The due execution of a will may be established by other evidence, than or in opposition to the testimony of the subscribing witnesses. (Id.)

25. Where, upon the trial of an action brought by one, claiming to have been appointed an attendant upon the marine court, under a particular act, to recover the salary attached to such office, his attention is specifically called to the fact that he has failed to prove an appointment thereunder, he cannot, upon the hearing of an appeal taken by the defendant from a judgment rendered against it, introduce documentary evidence to prove that in fact he was appointed thereunder. (Moser agt." "Mayor, 21 Hun, 163.)

26. Upon the trial of one indicted for a violation of section 4 of chapter 122 of 1876, in failing to provide a child in his custody with suitable food and medicine, photographs of the child taken soon after its removal from the custody of the accused to a hospital, the accuracy of which are established by the testimony of witnesses, are admissible to give an accurate representation of its physique at or about the time of its removal. (Cowley agt. People, 21 Hun, 415.)

27. In an action brought to recover the damages occasioned by an alleged slander, the complaint alleged that by reason of the words spoken, the plaintiff "was greatly injured in his fame, reputation and good name as a physician, and in his earnings, profits and income as such:"

Held, that the allegations were not sufficient to allow him to prove special damages in particular instances upon the trial. (Stiebeling agt. Lockhaus, 21 Hun, 457.)

28. When the plaintiff is not bound to prove the existence of a defendant corporation-a general appearance and the service of an answer by the latter amounts to an admission of its corporate existence-in any event, proof of user or corporate acts establish its existence prima facie. (See Derrenbacher agt. Lehigh Valley R. R. Co. 21 Hun, 612.)

29. Action to charge, with a firm debt, one who has held himself out to be a member thereof-when

the declarations of the person to whom the goods were sold are admissible as against the person sought to be charged. (See Greenwood agt. Sias, 21 Hun, 391.)

30. Action to rescind the sale of goods, on the ground that the purchaser bought them fraudulently, when insolvent-what evidence is admissible to rebut the pre

33. A witness cannot testify as to the impression produced on his mind by a conversation-impeaching the general character of

a

witness for veracity-what questions cannot be put to the witnesses called to do so. (See Wilder agt. Peabody, 21 Hun, 376.)

34. When the execution and delivery of a new lease is a sufficient declaration of the election of the lessor to enforce a forfeiture of a former lease occasioned by the failure of the lessee to comply with its conditions- after execution of new lease, lessor cannot waive the breach of condition of the first. (See Allegany Oil Co. agt. Bradford Oil Co., 21 Hun, 26.)

35. Attorney and client-when a communication between them is not privileged-Code of Civil Procedure, 835. (See Root agt. Wright, 21 Hun, 344.

36. When evidence of the insolvency of the debtor is inadmissible in an action against the sheriff for an escape. (See Dunford agt. Weaver, 21 Hun, 349.

37. In this action, brought by the plaintiff, as the widow of the grantee of the heirs at law of one Honness, to recover a lot of land owned by him, the defendant | claimed that he had removed from New Jersey, and come to live upon the lot, and had improved and paid the taxes upon it, under a parol promise of the said Honness to convey the lot to him if he would do so. Upon the trial the defendant was allowed, against the plaintiff's objection and exception, to prove declarations made by Honness to the effect that he was going to give the lot to the defendant, and others to the effect that he had done so:

Held, that as the plaintiff was in privity with the party making the declarations, they were properly admitted against her.

Subsequently the plaintiff gave evidence of declarations made by the defendant to the effect that he had agreed, by parol, to buy the lot of Honness for $1,100, and that he had paid part, but not all, of the purchase price. Thereafter the defendant was allowed, against the plaintiff's objection and exception, to prove declarations of Honness to the effect that he had borrowed money of the defendant or was owing money to him:

Held, that there was no identity of interest between the plaintiff and Honness, the deceased, as to the personal estate, and that the declarations of the latter that he, Honness, was owing money to the defendant was improperly admitted, being immaterial, and mere hearsay. (Rose agt. Adams, 22 Hun, 398.)

38. The plaintiff's intestate, a milkman, was killed in crossing a railroad at about half-past six o'clock in the morning of January 27, 1879, while seated in a covered wagon driving his horse through a street. He was a healthy and temperate man, and familiar with the locality. The crossing was on

a level with the street, and the track was visible from any point in the street within a space of one hundred and sixty feet of the crossing. Several witnesses, who had no occasion to look for the train, heard it approach the crossing, and one testified that he saw the lights upon it. No evidence as to the conduct of the deceased, at the time of the accident, or as to the cause, was given. In an action to recover the damages occasioned by the death of the plaintiff's intestate, held, that there was a failure to prove that the deceased was free from contributing to the accident, and that the plaintiff was properly nonsuited. (Glendening agt. Sharp, 22 Hun, 78.)

39. The plaintiff, by a written instrument dated October 18, 1872, leased to the defendant twentyfive acres of land, upon which was a bed of iron ore, for the term of five years, and for such further time as he might require to mine all the ore therein, he agreeing to pay to the plaintiff twenty cents for each ton removed, and to remove at least eight thousand tons a year; the agreement binding him to remove all ore where the vein was over fifteen inches in thickness, and leaving it optional with him to do so or not where the vein was of less thickness. In an action brought to recover the sum of $1,600, claimed to be due for the year ending October 18, 1877, it appeared that the defendant had been in possession of the premises, and uncovered between one and two acres thereof, and that he had paid the sum of $1,600 for each of the preceding years:

Held, that as the instrument transferred to the defendant the use and occupation of the premises, at a fixed compensation to be paid annually, it was a lease.

That to justify a recovery by the plaintiff, it was not incumbent upon him to show, by express testimony, that there continued to

be ore upon the premises during the year for which it was sought to recover rent. (Gilmore agt. Ontario Iron Co., 22 Hun, 391.)

40. In this action, brought against the maker and accommodation indorsers of a promissory note, dated January 28, 1879, and payable one day after date, the indorsers were allowed, against the plaintiff's objection and exception, to prove that they indorsed the note under a verbal agreement with the plaintiff, to whom the note was to be delivered, that they should have until the first of the following June to pay it:

Held, that the evidence was directly inconsistent with, and affected the terms of the note, and that the court erred in admitting it. (Willse agt. Whitaker, 22 Hun, 242.)

41. In an action of ejectment brought against persons claiming title to the land in question, and tenants in possession under them, the plaintiff gave evidence tending to show that the annual use of the premises was worth $500, the taxes to be paid by the lessee. The defendants then put in evidence the lease given to their tenant, by which a rent of $525 was reserved; the lessee agreeing to pay the school and road taxes, and the lessors the town, county and state taxes. They then offered to prove that the actual receipts of the rents and profits from the farm, after paying the taxes and expenses, amounted to only $325 a year:

Held, that the evidence so offered by the defendants bore upon the question as to the value of the use and occupation of the premises, and that the court erred in rejecting it. (More agt. Deyoe, 22 Hun, 208.

42. In an action on a policy of life insurance, where the assured committed suicide, upon the trial, a

by the plaintiff, and testified that he himself was subject to attacks of disease, during which he remained unconscious for half an hour, or thereabouts. He was then asked whether he knew from the statements of others what he did while thus unconscious:

Held, that the evidence was inadmissible, as being merely hearsay. (Hagadorn agt. Conn. Mut. Life Ins. Co., 22 Hun, 249.)

43. The plaintiff notified the defendants to produce a letter written to them. Upon the trial the defendants offered to prove that they had delivered it to their assignee in bankruptcy, but did not show who he was, or where he resided, nor that they had made any effort to produce it, or even that they had notified the plaintiff that they had parted with it:

Held, that it was proper to allow the plaintiff to give parol evidence of the contents of the letter. (Naugatuck Cutlery Co. agt. Babcock, 22 Hun, 481.)

44. The ruling of a judge on the trial admitting secondary evidence will not be reversed on appeal, unless it very clearly appears that an error has been committed which has prejudiced the party complaining thereof. (Id.)

45. In an action upon an account for goods sold and delivered, defendant's son J., who purchased the goods on defendant's account, after testifying, as a witness for plaintiff, that the principal articles of clothing and groceries for himself and family were obtained of plaintiff, that he often went himself and sent others to plaintiff's store for goods, was asked, and permitted to state under objection and exception, the quantity and amount of articles thus purchased of plaintiff :

Held, no error. (Green agt. Disbrow, 79 N. Y., 2.)