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and 121 New York State Reporter
DOMICILE.

live electric wire, an instruction held not

erroneous on the ground that it did not charge
Affecting liability for support of pauper, see

that deceased's negligence, in order to preclude
“Paupers," 1.

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

763.
DONATIONS.

In action for death because of plaintiff's in-
See "Gifts."

testate having come in contact with a live elec-

tric wire, a requested instruction on his duty
DOWER.

to apprehend danger held properly refused.-

Buckley V, Westchester Lighting Co. (Sup.)
Transfer tax on legacy in lieu of dower, see

763.
"Taxation," & 4.

EMINENT DOMAIN.
DURESS.

Public improvements by municipalities, see

"Municipal Corporations," 4.
In agreement by publisher of newspaper as to
compensation for publication of notices, see

$ 1. Nature, extent, and delegation of
"Newspapers."

power.
In requiring payment for city permit, see “Mu Legislature may authorize another to occupy
nicipal Corporations," § 5.

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
EARNINGS.

(Sup.) 612.
Loss of, as element of damages, see “Dam-

City held authorized to condemn lands oc-
ages," 8 3.

cupied by railroad tracks of railroad company

to the extent of laying a sewer under the
EASEMENTS.

tracks.-In re City of Gloversville (Sup.) 612

§ 2. Proceedings to take property and
See “Dedication”; “Highways."

assess compensation.

Under Laws 1897, p. 907, c. 115, owner of
§ 1. Creation, edstenoe, and termina- | property taken for the extension of Riverside
tion.

Drive held entitled, on confirmation of award.
An easement of right of way in land ac-

to interest from the date of the award to the
quired by grant cannot be lost by mere nonuser.

date of confirmation, not only on the amount
-Andrus v. National Sugar Refining Co. (Sup.)

awarded as the value of the property, but oa
671.

a sum awarded as interest.-ID re Dorsett
Adverse use, that will destroy a right of way (Sup.) 308.
in land acquired by grant, described.-Andrus
v. National Sugar Refining Co. (Sup.) 671.

EMPLOYES.
EJECTION.

See "Master and Servant.”
Of passenger, see "Carriers," $ 3.

ENTRY.
ELECTIONS.

Re-entry by landlord, see "Landlord and Ten-

ant," $ 6.
See "Judges," § 1.
Designation and compensation of newspapers EQUITABLE ASSIGNMENTS.

for publication of election notices, see "News-

papers.”.
Local option elections, see “Intoxicating Liq-|

See “Assignments," $ 1.
uors," $ 1.

EQUITABLE SET-OFF.
ELECTRICITY.

See “Set-Off and Counterclaim."
Electric light plant as nuisance, see “Nui-
sance," $ 1.

EQUITY.
In an action for tbe death of plaintiff's in-
testate, owing to his having come in contact

| Equitable assignments, see "Assignments." $ 1.
with a live electric wire, an instruction as to

| Equitable set-off, see “Set-Off and Counter-
the law in case deceased came in contact with

claim.
it because of preoccupation of mind held not particular subjects of equitable jurisdiction and
erroneous.-Buckley y. Westchester Lighting

equitable remedies.
Co. (Sup.) 763.

See "Injunction"; "Interpleader"; "Partition.**
In an action for the death of plaintiff's in- § 1; "Receivers": "Specific Performance";
testate because of his coming in contact with a Trusts."

ims.

§ 1. Jurisdiction, principles, and max-, Verdict or findings contrary to evidence, see

"New Trial," $ 2.
Conveyance of corporate stock held induced Waiver of objections to admission of, see
by fraud, so as to give equity jurisdiction to en "Trial," § 7.
force a rescission of the contract and redelivery
of the stock.-Slayback v. Raymond (Sup.) 931.

A8 to particular facts or £88Ues.
§ 2. Pleading.

See “Damages," $ 4; "Death," § 1; "Gifts,"
A defendant to a suit in equity, to avail

$ 2; "Judgment," $ 7; “Usury,' 8 1.
himself of the defense that an adequate rem-

Authority of agent, see “Principal and Agent,"
edy at law exists, must plead such defense.-

$ 2.
Rooney v. Bodkin (Sup.) 800.

Conversion of partnership real estate, see

"Partnership," $ 3.

Establishment of trust, see "Trusts," $ 1.
ESCAPE.

Modification of contract, see “Contracts," § 3.
See "Rescue."

Payment of pledged note, see “Pledges."

In actions by or against particular classes of
ESTABLISHMENT

parties.

See "Attorney and Client," $ 1; “Carriers,” 8
Of highways, see "Highways," 8 1.

3; "Master and Servant," 88 1, 8, 9; "Prin-
Of trusts, see "Trusts," $ 5.

cipal and Agent," § 2;' "Vendor and Pur-
Of will, see "Wills," $ 3.

chaser," § 4.

Bailor and bailee, see “Bailment.”
ESTATES.

Trustees, see "Trusts," $ 4.
Created by deed, see “Deeds," $ 2.

In particular civil actions or proceedings.
Created by will, see "Wills," § 4.

See "Assumpsit, Action of”; “Fraud," 8 2;
Decedents' estates, see "Descent and Distribu-

"Libel and Slander," § 2.
tion"; "Executors and Administrators."
Estates for years, see "Landlord and Tenant."

Hor accounting by trustee, see “Trusts," $ 4.
Joint tenancy, see "Joint Tenancy."

For breach of contract, see “Contracts," 8 6;
Tenancy in common, see "Tenancy in Com-

"Sales," $ 5.

| For breach of contract to make bequest or
mon.
Trusts, see "Trusts," $ 2.

devise, see “Wills," $ 1.
For discharge from employment, see "Master

and Servant," § 1.
ESTOPPEL.

| For injuries caused by operation of street rail-

road, see "Street Railroads," § 1.
By judgment, see "Judgment," 88 4, 5.

For maintenance of nuisance, see “Nuisance,"
Oftenant to dispute title of landlord, see § 1.
"Landlord and Tenant," $ 2.

Fa personal injuries, see “Carriers," $ 3;
To avoid or forfeit insurance policy, see "In "Master and Servant," 88 8, 9; "Street Rail-
surance," $ 7.

roads,” g 1.
To deny authority of corporate officer, see "Cor For price of land, see “Vendor and Purchaser,"

porations," $ 3.
To deny liability on note, see "Bills and Notes," For services, see “Work and Labor."
§ 3.

For wrongful death caused by operation of
$ 1. By record.

| railroad, see “Railroads," $ 2.

For wrongful death caused by operation of
Plaintiff in partition held estopped by his

street railroad. see “Street Railroads." § 1.
pleadings to assert that he took the property

On bail bond, see "Bail," $ 1.
free from the lien of a judgment against his

On bill or note, see "Bills and Notes," 8 4.
grantor.-Le Boeuf v. Gray (Sup.) 597.

On insurance policy, see "Insurance," $ 12.

On liquor dealer's bond, see "Intoxicating Lig-
EVICTION.

uors," 8 2.

In criminal proseoutions.
Of tenant of demised premises, see "Landlord
and Tenant," $8 4, 5.

See "Criminal Law,” | 3; "Gaming,” 8 1; “Re-

ceiving Stolen Goods."
EVIDENCE.

8 1. Presumptions.

Where, in an action for conversion, defend-
See “Depositions"; "Discovery"; "Witness- ant was sworn, but did not testify, all presump-

tions must be taken most strongly against him.
Admissibility of evidence under pleading, see

-Anker v. Smith (Sup.) 479.
"Pleading," $ 7.

$ 2. Relevancy, materiality, and com-
Harmless error in rulings on evidence, soe “Ap-

petency in general.
peal,” & 5.

Evidence as to the condition of building six
Questions of fact for jury, see "Trial," $ 5. weeks before accident held not too remote to
Reception at trial, see "Trial," $ 3.

throw light on condition at time of accident.
Review on appeal, see "Appeal," $ 5.

-Nelson v. Young (Sup.) 69.

es."

and 121 New York State Reporter
Evidence, in action for false representation, I It is competent for a witness to testify as to
of similar false representation connected with whether 27 feet is an unusually long span, as
same transaction, held admissible to show in- such fact is not a matter of common knowl-
tent.--Ettlinger v. Weil (Sup.) 1049.

edge.- Nelson y. Young (Sup.) 69.
A party may not in one case elicit evidence A witness may give the union scale of wages
which is not material or useful to him therein, as a ground for his conclusion as to the proba-
merely for use in another case.--In re Shawmut ble wages of a person injured, although there
Min. Co. (Sup.) 1059; Appeal of Miller, Id. is no proof that such person was a union man.
3. Admissions.

-Nelson v. Young (Sup.) 69.
Where the brother of a purchaser of land. In an action on a contract by an alleged as-
was jointly interested in the same with the signee, his testimony that the contract had
purchaser, his statements and declarations with been "sold" or "transferred" to him was in-
reference thereto held admissible, as against admissible.-Mardowitz v. Goldberg (Sup.) 234.
the vendor in an action to enforce a contract In an action for materials furnished and la-
to repurchase.-Maier v. Rebstock (Sup.) 85. bor performed in constructing wells, question,

The fact that an injury to plaintiff's vehicle asked defendant, as to his ability to use then,
was caused by the driver of defendant's wagon I held properly excluded as calling for a conelu-
could not be shown by the declaration of such sion.-Dubois v. Williamson (Sup.) 615.
driver made after the event.-Burns V. Bor- 18 7. Weight and sufficiency.
den's Condensed Milk Co. (Sup.) 883.

A verdict held against the weight of the eri-
In action for servant's injuries, testimony as dence.-Reilly v. Interurban St. Ry. Co. (Sup.)
to conversation with defendant's superintendent | 123.
after the accident held incompetent on the issue
of notice to defendant of fellow servant's in-

EXAMINATION.
competency:- White y. Lewiston & Y. F. Ry.
Co. (Sup.) 901.

Of adverse party before trial, see “Discovery,"

$ 1.
§ 4. Documentary evidence.
It was error to receive in evidence, over ob-

of expert witnesses, see "Evidence," $ 6.
jection, records of the court, with no other evi-

Of witnesses by grand jury, see "Grand Jury.**
dence of identification than the word of counsel | Or witnesses in general, see Witnesses, 2
that they were the originals.-Levy v. Fidelity
& Deposit Co. (Sup.) 487.

EXCEPTIONS.
Entries by a party in his own favor in his
cash book and ledger are not competent evi- | Necessity for purpose of review, see "Appeal,**

against the party against whom they are $ 3; "Criminal Law," $ 6.
made.-Brown v. Bronson (Sup.) 872.

Taking exceptions at trial, see "Trial," $ 3.
In an action for work done and materials fur-
nished. an account from plaintiff's books, made
by his bookkeeper, shown to be correct, held ad-

EXCHANGES.
missible in evidence.-Hurley V. Macey (Sup.)
924.

Variance in pleading and proof in action to re
8 5. Parol or extrinsic evidence affectel cover seat in exchange, see “Pleading," $ 7.

ing writings.
Where a contract was executed by an agent
in his own name under seal, evidence that he

EXCISE.
was agent and that he executed the contract
for his principal, was incompetent.--Anderson regulation of trame intoxicating nguono, se

Regulation of traffic in intoxicating liquors, see
v. Connor (Sup.) 449.

"Intoxicating Liquors.'
Evidence that chattel was transferred pur-
suant to and in consummation of oral agree-

EXECUTION.
ment, contemporaneous with written one, held
admissible in defense of title.-Hamblen v. Ger- | See "Attachment."
man (Sup.) 642.

As protection to officer, see "Sheriffs and Con-
8 6. Opinion evidence.

stables," $ 2.
A physician held competent to testify as to In divorce proceedings, see "Divorce," $ 3.
the results of the dissection of a limb which
he amputated, though he was not present at

f 1. Issuance, form, and requisites of
such dissection. --Steinacker y. Hills Bros. Co.

writ.
(Sup.) 33.

An execution held invalid under Consolids

tion Act, Laws 1882, p. 356, c. 410, $ 1399.-
Where, after the fall of a building in process

Goldberg v. Markowitz (Sup.) 1045.
of reconstruction, an official who examined
the same testified as to its condition, for plain-

$ 2. Execution against the person.
tiff, a question, on cross-examination, as to Code, $ 780, held not to authorize less than
"what was your conclusion?" was properly ex- | 14 days' service of papers in proceedings for
cluded, as not a proper subject for expert tes- discharge of imprisoned debtor, under sectica
timony.--Nelson v. Young (Sup.) 69.

2205.-In re Quick (Sup.) 316.

EXECUTORS AND ADMINISTRATORS. I tion with her burial.-Pache v. Oppenheim

(Sup.) 704.
See “Descent and Distribution”; “Wills."

Code Civ. Proc. $ 2718, held not to authorize
Right of action to recover funds of partnership a reference of claims for funeral expenses

of which decedent was member, see “Partner | against a decedent's estate.-Genet v. Willock
ship," $ 4.

| (Sup.) 938.
Taxation of property of decedent's estate, see

A nephew, having permitted his impecunious
"Taxation," 1.

uncle to reside on certain real estate which the
Testamentary trustees, see “Trusts."

nephew controlled, held not entitled to recover
Testimony as to transactions with decedents,

for use and occupation thereof against his un-
see "Witnesses," $ 1.

cle's estate.-Genet v. Willock (Sup.) 938.
& 1. Administration in general.

Executrix held not protected by Code Civ.
The claim of an administrator, resident in Proc. $ 2718, as against claim not presented
Rhode Island, against the estate which he was within six months from publication of notice.
administering in New York, the validity of -In re Gill (Sur.) 252.
which is in process of determination at the

Executrix must prove claim against the es-
time of his death, constitutes assets, giving the
surrogate's court jurisdiction to appoint an ad-

tate in the same manner as any other credit-
ministrator of his estate.-In re Flynn (Sup.)

or.-In re Gill (Sur.) 252.
18.

§ 6. Distribution of estate.
§ 2. Appointment, qualification, and In distributing estates under Code Civ. Proc.
tenure..

$ 2743, only those having legal titles will be
Nonresident alien held not entitled, under | recognized.-In re Lattan's Estate (Sur.) 246.
Code Civ. Proc. 88 2660–2662, to secure ap- $ 7. Sales and conveyances under order
pointment of his resident attorney as admin-

court.
istrator.-In re Ferrigan's Estate (Sup.) 16.

Where the personal property is insufficient to
Reversal of surrogate's decree admitting will pay the debts, a creditor has his remedy under
to probate, with a direction of jury trial, held the statute by the sale of decedent's real es-
to warrant appointment of temporary adminis- | tate.--In re Gill (Sur.) 252.
trator, under Code Civ. Proc. § 2670, notwith-
standing section 2582.-In re Hopkins' Will

Hill 18 8. Actions.
(Sup.) 793.

A complaint held to be on an implied contract

to pay money belonging to plaintiff, barred by
$ 3. Assets, appraisal, and inventory. the six-year statute.-Constantine v. Constan-

An executrix of an estate need not account | tine (Sup.) 139.
for the realty.-In re Gill (Sur.) 252.

| Under Code Civ. Proc. $ 448, the administra-
§ 4. Collection, and management of es- tor of a deceased partner held entitled to make
tate.

the surviving partner a defendant, for the rea-
An executor's account held properly surchar son that he refused to bring the action.-Secor
ged with an account paid by him for legal ser- v. Tradesmen's Nat. Bank (Sup.) 181.
vices to an attorney representing adverse par-

Where there is no defect in the appointment
ties.--In re Northup's Will (Sup.) 318; In re

of an administrator, he has capacity to sue.-
Long Island Loan & Trust Co., Id.

Secor v. Tradesmen's Nat. Bank (Sup.) 181.
An executor's account held properly surchar-

The administrator of a deceased partner held
ged for negligent failure to collect claims.-In re

pot entitled to maintain an action to recover
Northup's Will (Sup.) 318; In re Long Island

u firm assets in the possession of third persons.
Loan & Trust Co., Id.

-Secor v. Tradesmen's Nat. Bank (Sup.) 181.
Deed by one only of two acting executors
held void. --Brown v. Doherty (Sup.) 563.

Under Greater New York Charter, $ 1364,

subd. 1, Laws 1897, p. 485, c. 378, Municipal
A deed by the widow of a deceased partner, Court held to have jurisdiction of action by
his surviving children, and executors to the

husband against executor of deceased wife's
surviving partner, held not an exercise of a

ate to recover amount paid for her burial
power of sale created by the deceased partner's

expenses.-Pache v. Oppenheim (Sup.) 704.
will.-Huber v. Case (Sup.) 663.
An executor held not liable for the default of

Under Code Civ. Proc. $ 3246, executors held

personally chargeable with costs of action by
his coexecutors.--In re Johnson (Sur.) 733.

devisee to enforce her rights in property with
$ 5. Allowance and payment of claims. which they wrongfully intermeddled.-Rooney

Code Civ. Proc. $ 2719, held to empower sur- | v. Bodkin (Sup.) 800.
rogate to permit compromise and settlement of Suit by devisee against executors to obtain
claim against estate.-In re Gilman's Estatel determination of her rights under will held
(Sup.) 128.

cognizable in equity, whether executors were
Power of surrogate to permit compromise and acting as testamentary trustees, or were usurp-
settlement of claim against decedent's estate ing functions as such.-Rooney v. Bodkin (Sup.)
held properly exercised.-In re Gilman's Estate
(Sup.) 128.

Holder of notes, on securing judgment against
Husband held entitled to recover against es- | the administrators, held not entitled to costs;
tate of deceased wife amount paid in connec- | the administrators being justified, under the cir-

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and 121 New York State Reporter
cumstances, in obtaining the judgment of the FIDUCIARY RELATIONS.
court on the enforceability of the notes.-Bos-
worth v. Kinghorn (Sup.) 983.

Effect of misappropriation while acting in 6-
$ 9. Accounting and settlement.

duciary relation on discharge in bankruptey,
Charging to the executor personally all the

see "Bankruptcy," $ 3.
costs and expenses of proceedings resulting in
the surcharging of his account for negligent

FINAL JUDGMENT.
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.

Appealability, see “Appeal," $ 1.
Legacies of property, bequeathed to be divid.
ed among certain persons, held liable for their

FINDINGS.
proportionate share of executor's commissions.
-In re Fisher (Sup.) 567.

On reference, see "Reference," $ 2.

Review on appeal, see "Appeal," $ 5
EXEMPLARY DAMAGES.

FIRE INSURANCE.
See “Libel and Slander," $ 2.

See "Insurance."
EXEMPTIONS.

FIXTURES.
I rom taxation in general, see "Taxation," $ 1.
From transfer tax, see "Taxation," $ 4.

A heating apparatus, installed in a building
by a contractor purchasing the apparatus under

a contract of conditional sale, held a part of the
EXPERT TESTIMONY.

realty.–Jermyn v. Hunter (Sup.) 546.
In civil actions, see "Evidence," $ 6.

FLOWAGE.
FACTORS.

See "Waters and Water Courses," $ 2.
See “Brokers."
Where, in an action for conversion of proper-

FORECLOSURE.
ty, defendant did not claim that the property lo
unaccounted for had been sold as directed, it

Of corporate mortgage, see “Mortgages," $ 3.
will be presumed that he had concealed it, to 1

Of lien, see "Mechanics' Liens," $ 2.
appropriate it to his owu use.-Anker v. Smith

mith Of mortgage, see "Chattel Mortgages," $ 1;
(Sup.) 479.

"Mortgages,” & 4.

Scope and extent of review, see "Appeal," $ 3.
Where plaintiff delivered property to defend-
ant for sale, defendant's refusal to redeliver to
plaintiff the goods unsold on demand amounted FOREIGN CORPORATIONS.
to conversion.-Anker v. Smith (Sup.) 479.

See “Corporations," $ 7.
FALSE PRETENSES.

Dismissal of attachment against, see "Attach-

ment," $ 3.
Arrest of judgment, see "Criminal Law," $ 5. Insurance companies, see "Insurance," $ 1.
Former jeopardy, see "Criminal Law," § 2. Taxation, see "Taxation," $ 1.
Necessity of objections to indictment for pur-
pose of review, see "Criminal Law," 8 6.

FORFEITURES.
FALSE SWEARING.

Of insurance, see “Insurance," $ 6.
See "Perjury.”
FEES.

FORGERY.
Or attorney, see "Attorney and Client," § 2. Liability of broker selling bonds on forged 10-
Of sheriffs or constables, see "Sberiffs and thority, see “Brokers," $ 3.
Constables," $ 1.
FEE SIMPLE.

FORMER ADJUDICATION.

See "Judgment," $$ 4, 5.
Creation by will, see “Wills,” g 4.
FELLOW SERVANTS.

FORMER JEOPARDY.
See "Master and Servant,” $ 5.

| Bar to prosecution, see “Criminal Law," 1 2.

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