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. To bring evidence as to a transaction or interview with a deceased person within the prohibition of §829, it is not necessary that such transaction or interview was private or confined to the witness and deceased. Reversing S. C., 17 W. Dig., 226. This action was brought to set aside an assignment of a bond and mortgage executed by A., plaintiff's intestate, on the ground that H. was at the time of the execution and delivery of unsound mind and incapacitated to make the same, and also on the ground of undue influence on the part of defendant. The assignment was dated April 1, 1875, and acknowledged February 3, 1876, the day of H.'s death. Many witnesses were called by plaintiff, who gave their opinion as to the mental condition of the assignor and testified as to his transactions and conversations. The opinions given by these witnesses were not conclusions drawn from the acts or declarations testified to by them. These witnesses were not experts, and were many of them members of H.'s family, and would share in the avails of a judgment if one was recovered. R. E. Andrews and Joseph Hallock, for applt, J. A. Griswold, for respt. Held, That the evidence was not competent as to the mental condition of H. The opinions of witnesses not experts or subscribing witnesses to a will, as to the mental condition of a deceased person, must, to be competent, be conclu sions drawn from the rots or declarations of the dece ed sworn to by them. Any opinion they express must be formed on what they have seen or heard. 17 N. Y., 340; 34 id., 190; 36 id., 276; 42 id., 270; 86 id., 507. Also held, That there was error in disregarding the prohibition of $823 of the Code as to evidence of personal transactions and communications between certain persons who were interested in the amount involved in the action and the deceased. Under said section transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition or language of another. another. It must appear that the interview or transaction sought to be excluded was a personal one; it need not have been private or confined to the witness and the de82 N. Y., 619; 26 id., ceased. 264; 36 id., 327; 59 id., 336; 2 Abb. N. C., 1. Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial granted. Opinion by Danforth, J. All | concur. WILLS. EVIDENCE. Decided Jan., 1884. which she might rightfully have used to induce her husband to dispose of his property Violent reproaches and angry threats made by | home against testator's wishes. testator's wife when he was on his death When the will was read Mrs. Clark bed exceethe limits of due influence angrily denounced its provisions in violent terms. Fitzgerald, the lawyer, whose testimony is uncontradicted, testified that she said Clark had no right to cut off one of his boys, and she wouldn't stand as she wished. When acts of undue influence are proved declarations of the testator are proper evidence to show the operation such acts had upon his mind. Appeal by Ann Decot from Sur-it; that no person should come to rogate's decree admitting said will to probate, on the ground of coercion and undue influence by testa tor's wife. Testator died November 19, 1882, leaving his widow, and Mary Flynn, Michael Clark, Catharine Gowan, appellant, and Frank Clark, his only children and heirsat-law. His daughters were married and lived away from home. It does not appear that they had received any provision from their father, except their wedding dresses. Michael, with his family, lived with his father, and Frank had lived away from home. The will was made September 5, 1882. Testator had then been long sick, and was very low. The priest had been called. His wife suggested to him to make a will, and sent for a lawyer, who had a private interview with testator, and went to his office and drew a will according to testator's instructions. Returning, he read the will to Clark in his wife's presence. That will gave the bulk of the property to Michael, $500 to each of two grandchildren, $400 to each of his daughters, the interest of one-third of his property to his wife, and nothing to Frank. Testator had previously declared his intention of cutting Frank off because he had left Vol. 18-No. 24. the house to witness such a paper as that; that he was out of his head and had been for several months, and she could prove it; Clark laughed and said she knew better than that; she said if he made that will she would break it any way, and squander all the property in doing so; that he had only a few days to live, and she would curse him and dance on his grave. The same witness testified: "Clark finally changed his mind. and decided to have another will drawn ; I made another memorandum there; Clark and his wife both gave directions; she would suggest and he would assent by word or motion of head; she wished Frank to have as much as Michael; *she said the girls had been taken care of well enough and had had all they were entitled to; I don't know as she said anything about herself, except she spoke of her thirds before this; Clark himself insisted on a legacy of $500 to Decot's boy; Mrs. Clark first objected, but finally assented; he also wanted to leave the same amount to Michael Flynn's boy; she opposed that; she said he had other grandchildren as much entitled as they to legacies; he yielded as to the Flynn boy, but insisted as to the * * other, for the reason that he had promised him a lot and would give him a legacy in place of it, as the lot had been sold. Clark also wished the rents of the store applied in payment of floating debts; she made no objection to that.' Fitzgerald drew the second will and read it to Clark in the presence of his wife, and each said it was right. That will, which is the one admitted to probate, gave $500 to appellant's son; to testator's wife the use of all the real estate during her life, in lieu of GENERAL dower, except that the store rents N. Y. SUPREME COURT. TERM. FOURTH DEPT. William H. Abell et al., respts., v. The N. Y., L. & W. RR. Co., applt. Decided Oct., 1883. A corporation may be fined for violating an injunction. George Bowen, for applt. Willam Tyrrell, for respts. Held, That the finding of the Surrogate must be set aside, because the question is, to say the least, serious, whether the second will, so far as it differed from the first, was not procured by undue influence by the wife. The declarations offered were competent evidence upon the question whether the making of the second will was the result of the Where a corporation has knowledge, through its officers, agents and servants, that an injunction order has been issued against it, and thereafter performs some of the acts restrained thereby, it is liable therefor although the order was not served in strict regularity. Appeal from order of Special Term of the Superior Court of Buffalo imposing a fine on defendant for violation of an injunction order. The injunction was granted to restrain defendant from tearing up the street in front of plaintiff's lands, and was served on one H., who was found by the Special Term to be a managing agent of defendant within the terms of § 431, Code Civ. Pro. Some acts in violation of the order were committed after such service. Bowen, Rogers, Locke & Wheeler, for applt. Spencer Clinton, for respts. Held, No error. Whether the finding aforesaid was correct we need not consider, as defendant, through its officers, agents and servants, had knowledge that the injunction order had been issued, and thereafter performed some of the acts which the order restrained defendant and its servants from performing, and therefore it must indemnify plaintiffs whether the injunction order was served in strict regularity or not. Some acts were committed after the service of the order on H. and after knowledge of the order was brought to the attention of the attorneys of defendant, and it was proper therefore to impose upon defendant such sum as would indemnify plaintiffs. 4 Paige, 405; 3 Ed. Ch., 238, and note; 23 How., 3; 34 id., 202; 64 N. Y., 622. A corporation may be fined for violating an injunction. 64 N. Y., 622. Facts were shown sufficient to call upon the court to exercise its discretion, and we see nothing in the papers before us to indicate that the discretion was improperly exercised. Order affirmed, with costs. Opinion by Hardin, J.; Barker and Dwight, JJ., concur. thereon to this court." The referee made a report after taking evidence, and after hearing objections made rulings as to evidence and as to various questions arising on the hearing. Exceptions to the referee's report, both as to his findings of law and fact were made and served. On motion to confirm the counsel for the administrator requested the surrogate to rule upon the several objections and exceptions taken on the hearing and filed. This the surrogate refused to do, and made an order of confirmation and also the decree in question. Volney Simpson, J. D. Gaskell and Levi F. Bowen, for applt. A. K. Potter, for creditors, respts. Held, Error. Under the order of reference to "examine and to report thereon" to the surrogate's court the surrogate had the power and it was his duty to examine In re accounting of James A. the evidence and the report thereof Pool, admr., applt. and to consider the exceptions filed to the report and to determine the questions presented thereby for his review and consideration. Such was the practice under the R. S. in respect to reports made by a referee in cases of rejected claims referred under the statute. Such was the practice in respect to proceedings had before an auditor. 74 N. Y., 476. He had control of the proceedings and before passing upon the report in gross should have considered the rulings made by the referee and the exceptions taken to his report in detail. Code Civ. Pro., § 2546. Order and decree reversed, and proceedings remitted to surrogate with directions to proceed, costs to appellant payable out of fund. Opinion by Hardin, J.; Barker and Dwight, JJ., concur. PLEADING. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Pierre L. Schellens, respt., v. The Equitable Life Assurance Society of the United States, applt. Decided March 7, 1884. The proper form of allegation in a complaint in an action against a corporation for false representations is that such representations were made by the defendant, and not that they were made by the defendant "by its officers and agents." If the complaint is drawn in the latter form, the plaintiff will be required to make it more definite and certain by declaring specifically the particular officers or agents by whom he claims such representations were made. In such a case the proper remedy is a motion to make the complaint more definite and certain, and not for a bill of particulars. In an action to reform a policy of life insurance by conforming it to the agreement entered into between the parties, it is not necessary that the policy should be set forth in the complaint or annexed to it as an exhibit, it may be pleaded by stating its effect; but so much of the policy as is sought to be reformed must be set forth accurately, and also the particular reformation sought. Appeal from a portion of an order denying a motion to make the complaint more definite and certain. The complaint in this action alleged that the defendant "by its officers and agents" made certain false representations by which plaintiff was induced to take out a certain kind of policy of insurance, and the action was brought to recover damages caused by such alleged false representations, and also to have the policy conformed to the agreement entered into between the parties, and which it was claimed that the policy did not accurately express. Defendant moved to make the complaint more definite and certain in the following particulars among others, (1) by specifying the particular officers and agents by whom the alleged false representations were made, (2) by setting forth the contents of the policy or by annexing it to the complaint as an exhibit, (3) by setting out and indicating the changes which the plaintiff desired to have made in the policy, and how he wished the policy to read when so changed. The motion. was granted as to the third par ticular, but denied as to the first and second, the Court holding that, as to the first, the proper |