40. Section 740- Upon a motion by an attaching creditor to set aside a judgment and execution, which judgment had been entered upon plaintiff's acceptance of an offer made by defendants, because the acceptance did not have annexed thereto any affidavit to the effect that the plaintiff's attorneys were duly authorized to accept said offer, as required by this section of the Code of Civil Procedure:

Held, that the court has power to allow an amendment nunc pro tunc, annexing the proper affidavit; and where it appears that the omissions to annex the proper affidavit to the acceptance was an inadvertence of the attorney, and that the authority to accept actually existed, the amendment should be granted. (Stark agt. Stark and another, ante, 360.)

44.

party to a transaction or communication from testifying to it himself when death has closed the mouth of the other party.

So when a living witness swears to a contract made by a defendant with a deceased party at a specified time or place, there is nothing in the Code to prevent the defendant from testifying that at the time named he was in Europe or at some distant place, rendering it impossible that the witness speaks the truth. (McKenna agt. Bolger, ante, 411.)

Section 829- Evidence - when inadmissible as relating to a personal transaction with a deceased person. (See Boughton agt. Bogar dus, 35 Hun, 198.)

48. Section 829- The provision of this section of the Code of Civil Procedure, prohibiting a party to an action from testifying in his own behalf against an executor, &c., of a deceased person "concerning a personal transaction or communication between the witness and the deceased person," does not necessarily, and under all circumstances, exclude the evidence of a party so testifying, when it tends only to negative or affirm the existence of such a transaction or communication.

Where the party representing the deceased person has as a witness in his own behalf given ma

terial evidence, the adverse party, although precluded from directly proving the existence of such a transaction or communication, may testify as to extraneous facts tending to controvert such evidence, although those facts may incidentally tend to establish the inference that such a transaction or communication has or has not taken place. (Lewis agt. Merritt, 98 N. Y., 206.)

49. Section 834 The contract of insurance contained a condition that if the insured should commit suicide or die by his own hand the policy should become void. The defendant proved and the plaintiff conceded that the insured did die by his own hand. The plaintiff sought to prove that the insured was insane at the time, and that in a legal sense he did not commit suicide or die by his own hands, and called the physician who attended the deceased during all the period of his mental disturbance, on this question. Defendant objected to this evidence on the ground that he was not competent by reason of the prohibition contained in this section of the Code of Civil Procedure:

Held, that as the evidence was produced for the purpose of protecting the estate of the deceased, and to uphold a contract made by him in his lifetime with the defendant, the executors, as his personal representatives, possessed the right and privilege of releasing the physician from the statutory obligation of secrecy, and defendant had no ground for an exception.

After the plaintiff had introduced all his evidence on the ques tion of the insanity of the deceased, and had rested his case for the second time, the defendant offered evidence to show the nature of the insanity of deceased, and that the insanity with which he was afflicted was hereditary in its character. The offer was rejected upon the ground that the

defendant's case had been rested, and that it had not been pleaded:

Held (BARKER, J.), that the first reason for rejecting the evidence was not well founded for the reason that prior to the time of this offer it would not have been pertinent for the defendant to give any evidence on the subject of the insanity of the insured, as no question had then been made as to such insanity. The plaintiff raised that question and gave evidence tending to prove the insanity of the insured at the time he took his own life, with a view of avoiding the legal effect of the act, and the defendant sought to meet this position of plaintiff and to show the nature and degree of the insanity, and this made the evidence offered material and competent (SMITH, P. J., and HARDIN, J., dissenting).

Held, further (BARKER, J.), that the other ground was equally without foundation, as it is set forth in the answer that it was a condition of the contract, in case the insured should commit suicide or die by his own hand, the policy of insurance should become null and void, and it is also alleged he did commit suicide and did die by his own hand. (Westover agt. The Etna Life Ins. Co., ante, 163.)

50. Section 834- By this section of the Code of Civil Procedure, a physician is prohibited from disclosing any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity, and the seal of the law placed upon such disclosures can be removed only by the express waiver of the patient himself.

Whenever the evidence comes within the purview of the statute it is absolutely prohibited and may be objected to by any one, unless it be waived by the person for whose benefit the statute was enacted.

An executor or administrator does not represent a deceased person for the purpose of making such a waiver. He represents him simply in reference to right of property and not in reference to those rights which pertain to the person and character of the testator (Reversing S. C., ante, 163). (Westover agt. The Etna Life Ins. Co., ante, 184.)

51. Section 837-Actions against trustee to recover corporate debts as a penalty for failure to file annual reports are "penalties," within the meaning of section 837 of the Code of Civil Procedure. In such actions a party defendant is privileged from answering any question concerning the facts alleged in the complaint and cannot be compelled to answer upon an examination before trial any question which would support the claim of the plaintiffs, either against himself or his co-defendants. (Hughen agt. Woodward, ante, 127.)

52. Section 870 Examination of a party before trial- when not refused because it might tend to show the party guilty of a criminal offense. (See Davies agt. Fish, 35 Hun, 430.)

56. Section 1019-The sixty days in which a referee must make his report do not commence to run until the cause is submitted.

Where briefs are to be submitted, there is no submission of the cause until the time to hand in the briefs is passed.

The referee has power to enlarge the time for the submission of briefs.

Having his report ready and tendering it on payment of his fees, within the sixty days, is sufficient (See to same effect decision by gen eral term, first department, Little agt. Lynch, 1 How [N. S.], 95). (Morrison agt. Lawrence, ante, 72.)

57. Section 1166-If a trial proceeds, and a verdict be rendered without a jury being sworn. such a verdict is not irregular and void, when neither party asked that the oath should be administered.

That which the law requires to be done for the protection of a party, may be waived, and the failure to object is a waiver.

Nor can failure to object be excused by alleged ignorance. (Jen. kins agt. City of Hudson, ante, 244.)

58. Sections 1240, 1241, 1769, 1773, 3343 Business partnerships between husband and wife are not authorized.

Therefore a husband cannot claim under a business copartnership with his wife, the right to a dissolution of the same and the appointment of a receiver.

This is adverse to Zimmerman agt. Erhard and Dodge (59 How., 11); and Graff et al. agt. Kinney (1 How. [N. S.], 59); see, also, Fairlee agt. Bloomingdale (67 How., 292). (Jacquin agt. Jacquin, ante, 51.)

59. Section 1241, sub. 2- Contempt of court-when the failure of a defendant to comply with the directions of a final judgment cannot be treated as a contempt Code of Civil Procedure, secs. 1773, 1769; sec. 8, sub.3-“mandate," meaning of. (See Jacquin agt. Jacquin, 36 Hun, 378.)

60. Section 1256-Lien of a judgment effect of opening the judgment and allowing it to stand as a security for what may be thereafter recovered. (See Holmes agt. Bush, 35 Hun, 637.)

61. Section 1323 - Under the provision of this section of the Code of Civil Procedure authorizing an appellate court, on reversal of a final judgment, to "make or compel restitution of property or of a right lost by means of the erroneous judgment," such court cannot restore property taken and sold under another judgment, although the effect of the reversal is to decide that the property was taken from the party legally entitled to it; it may interfere in this summary manner only to restore property or rights lost by the judgment reversed. (Murray agt.

Berdell et al., 98 N.

Y., 480.)

63. Sections 1370, 450 — In an action wherein an attachment had been issued, upon the ground that defendant, a resident of the state, had departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, the execution directed the sheriff to collect the judgment out of the attached personal property, and if that was insufficient, out of the real estate attached: Held, that, so far as the real estate was concerned, the execution was void, and a sale under it conveyed no title; that the provision of the Code of Civil Procedure (sec. 1370, sub. 2) prescribing the form of execution in such case is peremptory, and the attached real estate could not be resorted to until the remedy against the debtor's personal property, both attached and unattached, had been exhausted.

It seems that where the attachment judgment and execution are regular, a bona fide purchaser on sale acquires a good title, although after a conveyance to him the defendant is allowed to come in and defend as authorized by the Code (sec. 445) and succeeds in his defense.

Under a void process, however, no title can be acquired, and a bona fide purchaser, as against the owner of the property, stands in no better position than one purchasing with full knowledge of the invalidity. (Place agt. Riley et al., 98 N. Y., 1.)

Procedure, secs. 723, 1489. (See
Walter agt. Isaacs, 36 Hun, 233.)

65. Sections 1390, 1391 Exempt property. (See Salsbury agt. Parsons, 36 Hun, 12.)

66. Section 1393- Deposit of pension in savings bank- exempt from execution. (See Stockwell agt. Nat. Bank of Malone, 36 Hun, 583.)

67. Section 1393- What property is exempt, as pay of a soldier. (See Burgett agt. Funcher, 35 Hun, 647.)

68. Section 1489-Execution against the person irregularities in the recital-when amenable-stipulation not to sue for false arrest power of the court to compel a party to make it - Code of Civil Procedure, secs. 723, 1372. (See Walter agt. Isaacs, 36 Hun, 233.)

69. Sections 1667, 1668- Costswhen the plaintiff is entitled to them, on the ground that the title to real property is put in issue by the pleadings-Code of Civil Procedure, sec. 3228, sub. 1. (See Crowell agt. Smith, 35 Hun, 182.)

1773; sec. 1241, sub. 2; sec. 8, sub. 3-mandate," meaning of. (See Jacquin agt. Jacquin, 36 Hun, 378.)

72. Section

1773 Contempt of court- - when the failure of a defendant to comply with the directions of a final judgment cannot be treated as a contempt Code of Civil Procedure, secs. 1773, 1769; sec. 1241, sub. 2; sec. 8, sub. 3" mandate," meaning of. (See Jacquin agt. Jacquin, 36 Hun, 378.)

73. Section 1776-In proceedings by a railroad corporation to acquire title to lands, the petition averred the due incorporation of the petitioner. A counter affidavit denied any knowledge or information sufli cient to form a belief as to the truth of said averment: Held, that considering this simply as an affidavit, it was not a denial of the averment; that treating it as an answer, there was no such denial as put the petitioner to proof of its incorporation, as under this section of the Code of Civil Procedure a corporation plaintiff is not required to prove its corporate existence unless the answer contains an affirmative allegation that plaintiff is not a corporation; that therefore, conceding the landowner might, without a formal denial, disprove the fact, the burden was upon it of proving the petitioner was not a corporation. (Matter of Petition of N. Y., L. and W. R. Co., 99 N. Y., 12.)

74. Section 1780-When one foreign corporation can sue another in this state. (See Duquesne Club agt. Penn Bank of Pittsburgh, 35 Hun, 390.)