EVIDENCE-Continued.

PAGE.

Claim against a decedent's estate-failure to present it during his
lifetime-proof required in its support.
MAISENHELDER . CRISPELL..... 219

See EXECUTOR AND ADMINISTRATOR.
Claim for services rendered to one since deceased - what evidence
will be required to sustain it. ROCK v. ROCK.

See EXECUTOR AND ADMINISTRATOR,

157

Action by a principal to compel agents to account
as to payments made by the agents. MYER v. ABBETT....
See PRINCIPAL AND AGENT.

-

- burden of proof

537

Contract giving the exclusive right to sell an article in a certain terri-
tory-proof of its value. HERMAN v. PIERCE CO.

See CONTRACT.

EXECUTION

Receiver in supplementary proceedings - his appointment
is largely discretionary — not appointed where the judgment debtor originally
held a lease for life of real property, the title in fee to which was paid for
out of her husband's pension money and was acquired by her before the docket-
ing of the judgment - merger of the leasehold interest in the fee.] 1. In 1883
Helen M. Stafford, the owner of certain real property, conveyed such prop-
erty to her sister, taking back from her sister a lease thereof for her (Helen
M. Stafford's) life. In 1897 her sister reconveyed the premises to her by
warranty deed, the purchase price being paid by her husband, a pensioner.
out of his pension moneys. Thereafter, in 1904, a judgment was rendered
against Helen M. Stafford, upon which proceedings supplementary to
execution were instituted.

Held, that an order made in the supplementary proceedings refusing to
appoint a receiver of the property of Mrs. Stafford should be affirmed;

That the fee of the premises, having been purchased with pension moneys,
was, under section 1393 of the Code of Civil Procedure, exempt from levy
and sale under execution;

That the question whether the life lease was merged in the fee of the prem-
ises depended upon the intention of the parties at the time of the convey-
ance of the fee;

That whether a receiver in supplementary proceedings shall be appointed
rests largely in the discretion of the court to which the application is made,
and that, in support of an order refusing to appoint a receiver, it would be
fair to assume that satisfactory proof has been furnished, to the effect that
there had been a merger of the life estate in the fee, and that the purchase
price of the fee had been paid from pension moneys.

MATTER OF STAFFORD

2. On a motion to vacate an execution against the person the theory on which
the action was tried may be shown.] Upon a motion by the defendant in an action
to vacate an execution issued against his person, on the ground that the action
was not one in which such an execution could be properly issued, it is com-
petent for him to show the theory upon which the action was tried and
decided. BOOTH v. ENGLERT

....

Real property left in trust to pay over the income, and, on notice from
the cestui que trust that he desires it to engage in business, the principal is sub-
ject to the claims of his creditors -a judgment creditor, under whose judg
ment a receiver has been appointed, may maintain an action to charge the
real property - the receiver may also. ULLMAN v. CAMERON......

--

Leave to issue an execution against an administrator- what must be
shown on an application therefor the fact that an administrator treated

16

46

284

159

EXECUTION - Continued.

PAGE.

money as belonging to the estate is not conclusive- when an accounting
should be ordered no preference can be given. MATTER OF WARREN..... 582
See EXECUTOR AND ADMINISTRATOR.

When a receiver in supplementary proceedings based thereon is enti-
tled to an award for land upon which it is a lien, although the award is pay-
able ten years after the judgment is docketed.

VAN LOON v. CITY OF NEW YORK.
See JUDGMENT.

-

EXECUTOR AND ADMINISTRATOR Revocation of letters of admin-
istration granted to the county treasurer — one to whom a claim against the
decedent was assigned by a corporation after the issue of the letters cannot apply
therefor under section 2685 of the Code of Civil Procedure what defect in the
petition for letters by the county treasurer is not ground for their revocation.]
1. One Ciotto, an Italian, who had no relatives in the United States, but
had a mother residing in Italy, while employed by a corporation in the
county of St. Lawrence in the State of New York, was killed in consequence
of the alleged negligence of such corporation. The deceased, who died
intestate, was buried by the corporation at an expense of twenty-five dollars
or thirty dollars. Thereafter the treasurer of the county, for the avowed
purpose of bringing an action against the corporation to recover damages
for the decedent's death, obtained letters of administration upon the estate
pursuant to a petition in which he alleged that the deceased left no relatives
within the State of New York and that there were no creditors or other per-
sons who had a prior right to such letters.

After the commencement of the action to recover damages for the dece-
dent's death, a foreman in the employ of the corporation, claiming to be a
cre litor of the estate by virtue of an assignment from such corporation of its
claim for the funeral expenses of the deceased, which assignment was exe-
cuted subsequent to the issuing of the letters of administration to the county
treasurer, filel a petition under section 2685 of the Code of Civil Procedure
for the revocation of the letters of administration.

Held, that the application was properly denied;

That the appointment of the county treasurer as administrator was valid,
there being at the time he was appointed no next of kin within the State
and no creditor except a corporation which was not entitled to take out
letters;

That, conceding that the foreman of the corporation was entitled to apply
for the revocation of the letters under section 2685 of the Code of Civil Pro-
cedure, the falsity of the statement in the petition for such letters, that there
were no creditors of the estate, did not, in view of the fact that the sole
creditor was incompetent to take letters, constitute sufficient ground for such
revocation;

That the objection that the petition upon which the letters of adminis-
tration were granted stated all the material facts on information and belief
and was, therefore, insufficient to confer jurisdiction on the surrogate to issue
the letters, was not available in the proceeding;

That even though the material facts did not sufficiently appear from the
petition upon which the letters were issued, inasmuch as they had been made
to appear upon the application for the revocation of the letters, the surro-
gate was justified in refusing to revoke them. MATTER OF CIOTTO........

2.

Leave to issue an execution against an administrator — what must be
shown on an application therefor.] On an application under sections 1825 and
1826 of the Code of Civil Procedure, for leave to issue execution upon a judg
ment rendered against an executor or administrator in his representative
capacity, the petitioner is required to show either that the executor or admin-
istrator has funds of the estate on hand applicable to the payment of the
judgment which he refuses to so apply, or that funds of the estate have
been misapplied which should have been devoted to the payment of the
judgment. MATTER OF WARREN......

3.

The fact that an administrator treated money as belonging to the
estate is not conclusive.] Where, on such an application, a question arises as
to whether moneys, received by an administrator with the will annexed from

572

143

582

EXECUTOR AND ADMINISTRATOR - Continued.

PAGE.

the United States upon a claim known as one of the "French Spoliation
Claims," constitutes an asset of the estate or a mere gratuity given by the
United States to the testator's next of kin, the fact that the administrator
with the will annexed treated a portion of such money as an asset of the
estate is not conclusive upon the question as to the character of such
money. Id.

4.- When an accounting should be ordered.] When, in such a case, the
question as to the character of such money should not be determined upon
affidavits, but upon an accounting had pursuant to subdivision 1 of section
2725 of the Code of Civil Procedure, considered. Id.

.5. No preference can be given.] No preference can be given to a judg-
ment creditor under section 1826 of the Code of Civil Procedure. Id.

6. Claim against a decedent's estate- failure to present it during his
lifetime-proof required in its support.] The fact that a claim, presented
against a decedent's estate for personal services, alleged to have been ren-
dered by the claimant to the deceased during his lifetime, was not presented
to the decedent in his lifetime, in itself casts suspicion on the validity of the
claim, and the court will not sanction its payment except upon satisfactory
proof of its validity. MAISENHELDER v. CRISPELL..

-

7. Claim for services rendered to one since deceased — what evidence will
be required to sustain it.] Where a claim for services, alleged to have been
rendered to a decedent during his lifetime, is presented for the first time
after the decedent's death, the court will require clear proof from disinter-
ested witnesses that the services were accepted with an intent on the part
of the decedent to pay therefor. ROCK v. ROCK..

8. Claims against decedents' estates — proof required in their support.]
Considerations of public policy require that claims against the estates of
deceased persons shall be established by very satisfactory evidence.

9.

LINDEN . THIERIOT..

When a verdict for the claimant is against the weight of evidence.]
When the verdict of a jury sustaining such a claim is against the weight
of evidence, considered. Id.

Decree admitting a will to probate and the issuance of letters testa-
mentary thereunder —it terminates the power of a temporary administrator.
MATTER OF CHOATE..

See SURROGATE.

Marketable title-specific performance will not be decreed where a
doubt exists whether a will gives to executors (the vendors) a power of sale.
SALISBURY v. RYON.

See SPECIFIC PERFORMANCE.

Collection by an administrator of rent belonging to an incompetent ·
the payment over thereof should not await an annual accounting.

219

157

405

356

445

596

Trial on Sunday, by a justice of the peace,

of an action for the crime of assault in the third degree -the justice is not
liable for the amount of a fine imposed upon and paid by the criminal.

KRAFT. DE VERNEUIL

See JUSTICE OF THE PEACE.

FALSE REPRESENTATION - Statements to commercial agencies to
obtain credit - a merchant who sells goods in reliance thereon may sue to recover
the goods and damages.] 1. Where a merchant, for the purpose of obtaining
credit through the medium of commercial agencies, makes to such commer-
cial agencies false representations concerning his financial condition, with

43

FALSE REPRESENTATION - Continued.

PAGE.

knowledge of their falsity, if another merchant to whom such false repre-
sentations are communicated by the commercial agencies, in reliance thereon,
sells the first-mentioned merchant goods upon credit, and the vendee mer-
chant neglects to pay for the goods and refuses to return them, the vendor
merchant may maintain an action against him to recover possession of the
goods or to recover damages in lieu thereof. MILLS v. BRILL. . . .
389

2. I tent to defraud the merchant implied.] In such an action it is
not necessary for the vendor merchant to prove that the vendee merchant
intended to defraud the vendor merchant when he made the false represen-
tations concerning his financial condition, as such an intent on the part of
the vendee merchant will be inferred, as matter of law, from the fact that
he knew the representations to be false and made them for the purpose of
obtaining credit. Id.

3.

Proof that the merchant could have borrowed money is incompetent.]
Upon the trial of the action it is improper for the court to allow the vendee
merchant to show, by his own testimony and that of others, that, at the
time the goods in question were sold to him, various persons would, if he had
requested them to do so, have loaned him money. Id.

4. · Action to set a contract aside because of fraud.] One who has been
induced to enter into a contract, by false and fraudulent representations upon
which he has relied, may bring an action to establish the fraud and to be
released from the provisions of the contract whether or not the enforcement
of the contract is attempted or threatened.

5.

When such an action may be maintained against a foreign receiver.]
Such an action may be brought by a resident of the State of New York
against the foreign receiver of a foreign corporation, if the court acquires
jurisdiction of the receiver's person, notwithstanding that the contract was
not made in the State of New York, and although the contract relates to
lands in a foreign country. PRUYN v. MCCREARY.................

6. What will be treated as surplusage in the complaint.] An allegation
in the complaint that the sheriff, one of the defendants in the action, threatens
to enforce the contract which he claims to have acquired under an attach-
ment may be treated as surplusage. Id.

Complaint alleging fraud based upon false representations and a
breach of warranty - the former allegations may be disregarded as surplus-
age.
BOOTH v. ENGLERT..

-

the

FOREIGN COURT — Action in the State of New York against a resident of
the State of New Jersey to recover an assessment made by a Minnesota court upon
his stock in a Minnesota corporation to meet its corporate indebtedness ·
stockholder is not represented by the corporation in the proceedings resulting in
the assessment.

See CONVERSE v. STEWART.

FOREST, FISH AND GAME LAW. · Section 141 of the Forest, Fish and
Game Law, prohibi ing the possession of fish “from without the State" during
the close season, is constitutional.

302

284

478

See PEOPLE v. BOOTH & Co...

184

FRANCHISE TAX:

See TAX.

See ASSOCIATION.

FRATERNAL BENEFIT SOCIETY:

PAGE.

- when the relation of

-

FRAUD Undue influence in the making of a will.
physician and patient between the sole beneficiary and the testator does not
establish it.

See MATTER OF SMALL.

140

equity.

Action to set a contract aside because of fraud — what will be treated as
surplusage in the complaint.
See PRUYN . MCCREARY.
What fraud justifies a collateral attack on a judgment in a court of
See REICH v. COCHRAN. (Nos. 1 & 2).

-

302

542

See FALSE REPRESENTATION.

FRENCH SPOLIATION CLAIMS- Ownership of money received by an
administrator in payment of one of the "French Spoliation Claims". -how
determined.
See MATTER OF WARREN

GAME

......

Section 141 of the Forest, Fish and Game Law, prohibiting the pos
session of fish from without the State" during the close season, is constitutional.
See PEOPLE v. BOOTH & Co...

GENERAL GUARDIAN:

See GUARDIAN AND WARD.

GENERAL RULES OF PRACTICE - Rule 41.

See COURT.

GIFT Inter vivos - what must be shown to establish it.] 1. In order to con-
stitute a valid gift inter vivos it is necessary that there should be a delivery
by the donor of the subject of the gift with intent to at once vest title to
the thing given in the donee.

After the gift has been perfected by delivery, it is not necessary that the
donce retain possession of the property; it may be redelivered to the donor
as the agent of the donee for safekeeping. Where the donor is dead, and
the thing given was in his possession at the time of his death, the clearest
evidence is required that the gift was made. Where the persons stood in
a confidential relation at the time of the alleged gift, the burden is upon the
donee to establish the facts necessary to establish the gift.

2.

BOWRON v. DE SELDING......

....

Effect of stock paid for by the principal being issued in the agent's
name.] The fact that corporate stock, purchased by an agent with money
belonging to his principal, is issued in the name of the agent is of no impor-
tance in determining its ownership as the title to such stock passes in such
case directly to the principal. Id.

GRAND LARCENY - What evidence is sufficient to establish the offense of
grand larceny.

GUARDIAN AND WARD Surety on the bond of a general guardian
when his liability will be enforced although the guardian has not accounted.]
Where a person appointed general guardian of an infant by a Surrogate's
Court, after appropriating moneys of his ward to his own use, removes to
another State in which he dies insolvent, leaving no assets in the State of
New York which would furnish a basis for the issuance of letters of adminis-

582

184

500

505