DOMICILE.

live electric wire, an instruction held not
erroneous on the ground that it did not charge

recovery, must have contributed to the accident.
-Buckley v. Westchester Lighting Co. (Sup.)
763.

In action for death because of plaintiff's in-
testate having come in contact with a live elec
tric wire, a requested instruction on his duty
to apprehend danger held properly refused.-
Buckley v. Westchester Lighting Co. (Sup.)
763.

EMINENT DOMAIN.

Public improvements by municipalities, see
"Municipal Corporations," § 4.

§ 1. Nature, extent, and delegation of
power.

Legislature may authorize another to occupy
property held for a public use, when such other
public use may be enjoyed without interfering
with a prior use. In re City of Gloversville
(Sup.) 612.

City held authorized to condemn lands oc-
cupied by railroad tracks of railroad company
to the extent of laying a sewer under the
tracks. In re City of Gloversville (Sup.) 612.
§ 2. Proceedings to take property and
assess compensation.

Under Laws 1897, p. 907, c. 665, owner of
property taken for the extension of Riverside
Drive held entitled, on confirmation of award.
to interest from the date of the award to the
date of confirmation, not only on the amount
awarded as the value of the property, but on
a sum awarded as interest.-In re Dorsett
(Sup.) 308.

Verdict or findings contrary to evidence, see
"New Trial," § 2.

Waiver of objections to admission of, see
"Trial," § 7.

As to particular facts or issues.
See "Damages," § 4: "Death," § 1; "Gifts,"
§ 2; "Judgment," § 7; "Usury," § 1.
Authority of agent, see "Principal and Agent,"
§ 2.

Conversion of partnership real estate,
"Partnership," § 3.

see

Establishment of trust, see "Trusts," § 1.
Modification of contract, see "Contracts," § 3.
Payment of pledged note, see "Pledges."

In actions by or against particular classes of
parties.

See "Attorney and Client," § 1; "Carriers," §
3; "Master and Servant," §§ 1, 8, 9; "Prin-
cipal and Agent," § 2; "Vendor and Pur-
chaser," § 4.

Bailor and bailee, see "Bailment."
Trustees, see "Trusts," § 4.

In particular civil actions or proceedings.
See "Assumpsit, Action of"; "Fraud," § 2;
"Libel and Slander," § 2.

For accounting by trustee, see "Trusts," § 4.
For breach of contract, see "Contracts," § 6;
"Sales," § 5.

For breach of contract to make bequest or

devise, see "Wills," § 1.

For discharge from employment, see "Master
and Servant," § 1.

For injuries caused by operation of street rail-
road, see "Street Railroads," § 1.

For maintenance of nuisance, see "Nuisance,"
$ 1.

For personal injuries, see "Carriers," § 3:
"Master and Servant," §§ 8, 9; "Street Rail-
roads," § 1.

For price of land, see “Vendor and Purchaser,"
8 4.

For services, see "Work and Labor."

For wrongful death caused by operation of
railroad, see "Railroads," § 2.

For wrongful death caused by operation of
street railroad, see "Street Railroads," § 1.
On bail bond, see "Bail," § 1.

On bill or note, see "Bills and Notes," § 4.
On insurance policy, see "Insurance," § 12.
On liquor dealer's bond, see "Intoxicating Liq-
uors," § 2.

In criminal prosecutions.

See "Criminal Law," § 3; "Gaming," § 1; "Re-
ceiving Stolen Goods."

1. Presumptions.

Admissibility of evidence under pleading, see
"Pleading," § 7.

Harmless error in rulings on evidence, see "Ap-
peal," § 5.

Questions of fact for jury, see "Trial," § 5.
Reception at trial, see "Trial," § 3.
Review on appeal, see "Appeal," § 5.

2. Relevancy, materiality, and com-
petency in general.

Evidence as to the condition of building six
weeks before accident held not too remote to
throw light on condition at time of accident.
-Nelson v. Young (Sup.) 69.

§ 3. Admissions.

Where the brother of a purchaser of land was jointly interested in the same with the purchaser, his statements and declarations with reference thereto held admissible, as against the vendor in an action to enforce a contract to repurchase.-Maier v. Rebstock (Sup.) 85. The fact that an injury to plaintiff's vehicle was caused by the driver of defendant's wagon could not be shown by the declaration of such driver, made after the event.-Burns v. Borden's Condensed Milk Co. (Sup.) 883.

In action for servant's injuries, testimony as to conversation with defendant's superintendent after the accident held incompetent on the issue of notice to defendant of fellow servant's incompetency-White v. Lewiston & Y. F. Ry. Co. (Sup.) 901.

§ 4. Documentary evidence.

It was error to receive in evidence, over objection, records of the court, with no other evidence of identification than the word of counsel that they were the originals.-Levy v. Fidelity & Deposit Co. (Sup.) 487.

Entries by a party in his own favor in his cash book and ledger are not competent evidence against the party against whom they are made.-Brown v. Bronson (Sup.) 872.

In an action for work done and materials furnished. an account from plaintiff's books, made by his bookkeeper, shown to be correct, held admissible in evidence.-Hurley v. Macey (Sup.) 924.

§ 5. Parol or extrinsic evidence affect ing writings.

Where a contract was executed by an agent in his own name under seal, evidence that he was agent, and that he executed the contract for his principal, was incompetent.-Anderson v. Connor (Sup.) 449.

Evidence that chattel was transferred pursuant to and in consummation of oral agreement, contemporaneous with written one, held admissible in defense of title.-Hamblen v. German (Sup.) 642.

§ 6. Opinion evidence.

A physician held competent to testify as to the results of the dissection of a limb which he amputated, though he was not present at such dissection.-Steinacker v. Hills Bros. Co. (Sup.) 33.

Where, after the fall of a building in process of reconstruction, an official who examined the same testified as to its condition, for plaintiff, a question, on cross-examination, as to "what was your conclusion?" was properly excluded, as not a proper subject for expert testimony.-Nelson v. Young (Sup.) 69.

It is competent for a witness to testify as to whether 27 feet is an unusually long span, as such fact is not a matter of common knowl edge.-Nelson v. Young (Sup.) 69.

A witness may give the union scale of wages as a ground for his conclusion as to the probable wages of a person injured, although there is no proof that such person was a union man. -Nelson v. Young (Sup.) 69.

In an action on a contract by an alleged as signee, his testimony that the contract had been "sold" or "transferred" to him was inadmissible.-Mardowitz v. Goldberg (Sup.) 234.

In an action for materials furnished and labor performed in constructing wells, question, asked defendant, as to his ability to use them, held properly excluded as calling for a conclusion.-Dubois v. Williamson (Sup.) 645. 87. Weight and sufficiency.

A verdict held against the weight of the evidence.-Reilly v. Interurban St. Ry. Co. (Sup.) 423.

EXAMINATION.

Of adverse party before trial, see "Discovery," $ 1.

Of expert witnesses, see "Evidence," § 6.
Of witnesses by grand jury, see “Grand Jury."
Of witnesses in general, see "Witnesses," § 2.

EXCEPTIONS.

Necessity for purpose of review, see "Appeal," $3; "Criminal Law," § 6.

Taking exceptions at trial, see "Trial," § 3.

EXCHANGES.

Variance in pleading and proof in action to recover seat in exchange, see "Pleading," § 7.

EXCISE.

Regulation of traffic in intoxicating liquors, see "Intoxicating Liquors.'

EXECUTION.

See "Attachment.”

As protection to officer, see "Sheriffs and Constables," § 2. In divorce proceedings, see "Divorce," § 3.

8 1. Issuance, form, and requisites of writ.

An execution held invalid under Consolidation Act, Laws 1882, p. 356, c. 410, § 1330.Goldberg v. Markowitz (Sup.) 1045.

$ 2. Execution against the person

Code, § 780, held not to authorize less than 14 days' service of papers in proceedings for discharge of imprisoned debtor, under section 2205.-In re Quick (Sup.) 316.

See "Descent and Distribution"; "Wills."
Right of action to recover funds of partnership
of which decedent was member, see "Partner-
ship," § 4.

Taxation of property of decedent's estate, see
"Taxation," § 1.

Testamentary trustees, see "Trusts."

Testimony as to transactions with decedents,
see "Witnesses," § 1.

1. Administration in general.
The claim of an administrator, resident in
Rhode Island, against the estate which he was
administering in New York, the validity of
which is in process of determination at the
time of his death, constitutes assets, giving the
Surrogate's court jurisdiction to appoint an ad-
ministrator of his estate. In re Flynn (Sup.)

18.

tenure.

2. Appointment, qualification, and
Nonresident alien held not entitled, under
Code Civ. Proc. §§ 2660-2662, to secure ap-
pointment of his resident attorney as admin-
istrator.-In re Ferrigan's Estate (Sup.) 16.

Reversal of surrogate's decree admitting will
to probate, with a direction of jury trial, held
to warrant appointment of temporary adminis-
trator, under Code Civ. Proc. § 2670, notwith-
standing section 2582.-In re Hopkins' Will
(Sup.) 793.

§ 3. Assets, appraisal, and inventory.
An executrix of an estate need not account
for the realty.-In re Gill (Sur.) 252..

§ 4. Collection and management of es-
tate.

An executor's account held properly surchar-
ged with an account paid by him for legal ser-
vices to an attorney representing adverse par-
ties. In re Northup's Will (Sup.) 318; In re
Long Island Loan & Trust Co., Id.

An executor's account held properly surchar-
ged for negligent failure to collect claims.-In re
Northup's Will (Sup.) 318; In re Long Island
Loan & Trust Co., Id.

Deed by one only of two acting executors
held void.--Brown v. Doherty (Sup.) 563.

A deed by the widow of a deceased partner,
his surviving children, and executors to the
surviving partner, held not an exercise of a
power of sale created by the deceased partner's
will.-Huber v. Case (Sup.) 663.

An executor held not liable for the default of
his coexecutors.-In re Johnson (Sur.) 733.
§ 5. Allowance and payment of claims.
Code Civ. Proc. § 2719, held to empower sur-
rogate to permit compromise and settlement of
claim against estate. In re Gilman's Estate
(Sup.) 128.

Power of surrogate to permit compromise and
settlement of claim against decedent's estate
held properly exercised.-In re Gilman's Estate
(Sup.) 128.

Husband held entitled to recover against es-
tate of deceased wife amount paid in connec-

Code Civ. Proc. § 2718, held not to authorize
a reference of claims for funeral expenses
against a decedent's estate.-Genet v. Willock
(Sup.) 938.

A nephew, having permitted his impecunious
uncle to reside on certain real estate which the

nephew controlled, held not entitled to recover
for use and occupation thereof against his un-
cle's estate.-Genet v. Willock (Sup.) 938.

Executrix held not protected by Code Civ.
Proc. § 2718, as against claim not presented
within six months from publication of notice.
-In re Gill (Sur.) 252.

Executrix must prove claim against the es-
tate in the same manner as any other credit-
or.-In re Gill (Sur.) 252.

§ 6. Distribution of estate.

In distributing estates under Code Civ. Proc.
§ 2743, only those having legal titles will be
recognized. In re Lattan's Estate (Sur.) 246.
§ 7. Sales and conveyances under order
of court.

Where the personal property is insufficient to
pay the debts, a creditor has his remedy under
the statute by the sale of decedent's real es-
tate.-In re Gill (Sur.) 252.
88. Actions.

A complaint held to be on an implied contract
to pay money belonging to plaintiff, barred by
the six-year statute.-Constantine v. Constan-
tine (Sup.) 139.

Under Code Civ. Proc. § 448, the administra-
tor of a deceased partner held entitled to make
the surviving partner a defendant, for the rea-
son that he refused to bring the action.-Secor
v. Tradesmen's Nat. Bank (Sup.) 181.

Where there is no defect in the appointment
of an administrator, he has capacity to sue.-
Secor v. Tradesmen's Nat. Bank (Sup.) 181.

The administrator of a deceased partner held
not entitled to maintain an action to recover
firm assets in the possession of third persons.
-Secor v. Tradesmen's Nat. Bank (Sup.) 181.

Under Greater New York Charter, § 1364,
Court held to have jurisdiction of action by
subd. 1, Laws 1897, p. 485, c. 378, Municipal
husband against executor of deceased wife's
estate to recover amount paid for her burial
expenses.-Pache v. Oppenheim (Sup.) 704.

Under Code Civ. Proc. § 3246, executors held
personally chargeable with costs of action by
devisee to enforce her rights in property with
which they wrongfully intermeddled.-Rooney
v. Bodkin (Sup.) 800.

Suit by devisee against executors to obtain
determination of her rights under will held
cognizable in equity, whether executors were
acting as testamentary trustees, or were usurp
ing functions as such.-Rooney v. Bodkin (Sup.)
800.

Holder of notes, on securing judgment against
the administrators, held not entitled to costs;
the administrators being justified, under the cir-

cumstances, in obtaining the judgment of_the| court on the enforceability of the notes.-Bosworth v. Kinghorn (Sup.) 983.

§ 9. Accounting and settlement.

Charging to the executor personally all the costs and expenses of proceedings resulting in the surcharging of his account for negligent failure to collect claims held in the discretion of_the_surrogate.-In re Northup's Will (Sup.) 318; In re Long Island Loan & Trust Co., Id. Legacies of property, bequeathed to be divid ed among certain persons, held liable for their proportionate share of executor's commissions. -In re Fisher (Sup.) 567.

Where, in an action for conversion of property, defendant did not claim that the property unaccounted for had been sold as directed, it will be presumed that he had concealed it, to appropriate it to his own use.-Anker v. Smith (Sup.) 479.

Where plaintiff delivered property to defendant for sale, defendant's refusal to redeliver to plaintiff the goods unsold on demand amounted to conversion.-Anker v. Smith (Sup.) 479.

FALSE PRETENSES.

Arrest of judgment, see "Criminal Law," § 5. Former jeopardy, see "Criminal Law," § 2. Necessity of objections to indictment for purpose of review, see "Criminal Law," § 6.

FALSE SWEARING.

See "Perjury."

FEES.

Of attorney, see "Attorney and Client," § 2. Of sheriffs or constables, see "Sheriffs and Constables," § 1.

FEE SIMPLE.

Creation by will, see "Wills," § 4.

FELLOW SERVANTS. See "Master and Servant," § 5.

FIDUCIARY RELATIONS.

Effect of misappropriation while acting in fiduciary relation on discharge in bankruptcy. see "Bankruptcy," § 3.

FINAL JUDGMENT.

Appealability, see “Appeal,” § 1.

FINDINGS.

On reference, see "Reference," § 2. Review on appeal, see "Appeal," § 5.

FIRE INSURANCE.

See "Insurance."

FIXTURES.

A heating apparatus, installed in a building by a contractor purchasing the apparatus under a contract of conditional sale, held a part of the realty. Jermyn v. Hunter (Sup.) 546.

FLOWAGE.

See "Waters and Water Courses," § 2.

FORECLOSURE.

of corporate mortgage, see "Mortgages," § 3. Of lien, see "Mechanics' Liens." § 2. Of mortgage, see "Chattel Mortgages," § 1; "Mortgages," § 4. Scope and extent of review, see "Appeal," § 5.

FOREIGN CORPORATIONS.

See "Corporations," § 7.

Dismissal of attachment against, see "Attachment," § 3.

Insurance companies, see "Insurance," § 1.
Taxation, see "Taxation," § 1.

FORFEITURES.

Of insurance, see "Insurance," § 6.

FORGERY.

Liability of broker selling bonds on forged authority, see "Brokers," § 3.

FORMER ADJUDICATION.

See "Judgment," §§ 4, 5.

FORMER JEOPARDY.

Bar to prosecution, see "Criminal Law," | 2