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and 121 New York State Reporter
1. Acts constituting conversion and a prior act of trustee.-In re Long Island Loai
liability therefor.

| & Trust Co. (Sup.) 65; Appeal of Sloan, Id.
After demand and refusal to pay, an action Trustee. relying on decree in accounting to
for conversion will lie against one who has re-
ceived money in a fiduciary capacity.-Jackson

estop beneficiary, has burden of showing that
v. Moore (Sup.) 1101.

the question involved was litigated.-In re Long
Island Loan & Trust Co. (Sup.) 63; Appeal of

Sloan, Id.

Testamentary trustee held not liable for re-

fusing to accept refund of dividends erroneouslr
Charitable trusts, see “Charities.”

paid out to life beneficiary as income.-Inr
Combinations to monopolize trade, see “Mo Elting (Sup.) 833; In re Curtiss' Will, Id.
nopolies," § 1.

The division of a testamentary trust estate
Creation by will, see “Wills," $ 4.

| into five separate trusts, disclosed in an ac-
Trust deeds, see "Chattel Mortgages"; "Mort-

counting by the trustee and passed upon and

approved by the surrogate over objection, be-
8 1. Creation, existence, and validity.

comes res judicata.-In re Elting (Sup.) 833;
Evidence in action to declare trust as to pro

In re Curtiss' Will, Id.
ceeds of sale of real property examined, and

Under Code Civ, Proc. 8 2813, surrogate's
held insufficient to show the existence of a trust decree approving final account of testamentary
relation arising out of contract.-Mackall v. trustee held to conclude parties thereto, and
Olcott (Sup.) 757.

also remainderman not in esse, as to alleged

devastavit; section 2481 being inapplicable.-
Evidence in action to declare trust as to pro-

In re Elting (Sup.) 833; In re Curtiss' Will,
ceeds of sale of real property examined, and
held insufficient to show the existence of a trust
ex maleficio by reason of confidential relations.

Certain conditional devisees in remainder of a
-Mackall v. Olcott (Sup.) 757.

trust fund held necessary parties to a suit by

the receiver of the first tenant in remainder to
Transferee of corporate stock held to hold the compel the trustee to file an interlocutory ac-
same as trustee to accomplish the specific pur-count.-Leonard v. Pierce (Sup.) 978.
pose for which the stock was conveyed, so as to
be liable to an accounting.-Slayback v. Ray-

A suit to compel a testamentary trustee to
mond (Sup.) 931.

ay account held maintainable against him in his

representative capacity only.- Leonard v. Pierce
Savings deposited in trust held to cover money | (Sup.) 978.
deposited after the death of the beneficiary.- |
In re Bulwinkel (Sur.) 250.

$ 5. Establishment and enforcement of

§ 2. Construction and operation.

Under Real Property Law (Laws 1896, p.
Under Personal Property Law, $ 3, title to 592, c. 547, $ 207), a trust of real property could
trust personalty held to vest in the cestui que not be proved by parol, as against an answer
trust, so as to be liable for his debts.-Ullman containing general denial.-Hill y. Warsawski
v. Cameron (Sup.) 148.

(Sup.) 551.
Trust created by will held to be in favor of
infant children of testator, not his widow.-
Brown v. Doherty (Sup.) 563.
8 3. Management and disposal of trust Taxation of turnpike company, see "Taxation,"

Entry in report of trustee to beneficiary held
not notice to beneficiary of sale of certain prop-

erty to the trust.-In re Long Island Loan &
Trust Co. (Sup.) 65; Appeal of Sloan, Id.

See "Corporations," $ 2.
The sale by a trustee of its own property to
the trust is void as against public policy.-In

re Long Island Loan & Trust Co. (Sup.) 65;
Appeal of Sloan, Id.

See “Trade Unions."
That power conferred on trustee is broad
does not discharge him from obligation of good

faith and accounting.-Spier v. Hyde (Sup.) 285.

Taxation of federal bonds, see "Taxation," $ 4.
$ 4. Accounting and compensation of

Refusal to open former decree in accounting

between trustee and beneficiary held not to

| Taxation of, see “Taxation," § 1.
estop beneficiary in a subsequent accounting
from questioning validity of prior act of trus-
tee.-In re Long Island Loan & Trust Co.

(Sup.) 65; Appeal of Sloan, Id.

Decree on trustee's accounting held not to A reservation in a sale of premises of the
estop beneficiary from questioning validity of right of the vendor to use part thereof for a


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imited time held not subject to any duty to 8 1. Construction and operation of con-
Jay for the use. -Becker v. Davis (Sup.) 422.


Option for reconveyance on repayment held

to survive time limit, where grantee receives
payments thereon.-Connolly v. Keenan (Sup.)

$ 1. Usurious contracts and transac-

Where a grantor, in a deed with an option
Whether a transaction was a sale or loan of | for payment and reconveyance, finally refuses
personal credit, or a cloak to cover a usurious to make further payments, claiming that his

an, is a question of fact.-Forgotson v. Raubit advances to the grantee have exceeded the con-
chek (Sup.) 503.

sideration of the deed, he must at once sur-

render and deed the property, or exercise his
Contract for purchase of property held not

option to purchase.-Connolly v. Keenan (Sup.)
tainted by usury.-Flagg v. Fisk (Sup.) 530.

In an action to reform a deed, held, that the

The measure of liability of a person under an
evidence showed an investment by the grantee,
rather than a loan to the grantor, so as to show

option contract for the purchase of a tract of

land held determined by the actual acreage of
usury.-Connolly v. Keenan (Sup.) 630.

the tract.-Warden v. Tesla (Sup.) 853.
Mere fact of payment of interest in excess of
legal rate held not to authorize an inference of $ 2. Modification or rescission of con-
a usurious agreement.-Bosworth v. Kinghorn

(Sup.) 983.

Where a purchaser of land, under a contract
Holder of usurious note held to have burden

by the vendor to repurchase in case the ven-

dee did not sell the same at a profit, parted
of proving that he was a bona fide purchaser.

with a portion of his interest in the land, he
-Simpson v. Hefter (City Ct. N. Y.) 243.

could only enforce the vendor's agreement to
A plea of usury in an action on a note held the extent of the loss sustained to such ven-
good.-Simpson v. Hefter (City Ct. N. Y.) 243. dee's interest.-Maier v. Rebstock (Sup.) 85.
Accommodation note held void because of

Whether a purchaser of land had used rea-
usury in discounting the same. Simpson v. sonable diligence

sopable diligence to resell the same, and wheth-
Hefter (City Ct. N. Y.) 243.

er the vendor had acquiesced in the purchaser's
Where a note is payable in the city of New delay in demanding reconveyance under a con-
York, it was governed as to interest by the tract, held for the jury.-Maier v. Rebstock
laws of New York, though no rate was fixed. (Sup.) 85.
Simpson v. Hefter (City Ct. N. Y.) 243.

A purchaser of real estate held entitled to a

reasonable time, after the expiration of the

time limited in a contract by the vendor to

repurchase, within which to elect to enforce
In office, see "Judges," § 1.

the same.-Maier v. Rebstock (Sup.) 85.

§ 3. Performance of contract.

Specific performance of contract to purchase

land denied, because of mistake as to the area
Effect of irregular vacation of attachment on of land contracted to be sold.--McIntyre v. Har-
liability on bond, see "Attachment," $ 4. rington (Sup.) 1028.
Vacating particular proceedings.

§ 4. Remedies of vendor.
See "Attachment," $ 3; "Judgment,” $$ 1, 3. In an action on an option contract for the pur-
Order in dispossession proceedings, see “Land- | chase of a tract of land, the exclusion of evi-
lord and Tenant," $ 6.

dence offered by defendant as to the number
of acres in the tract held error.- Warden v.

Tesla (Sup.) 853.
Between pleading and proof in civil action, see

"Pleading," $ 7.

§ 1. Change of venue or place of trial.

A party, by noticing a case for trial at a cer-

tain term, and by then appearing and secur-
See “Sales."

ing a continuance, waives his right to move
Liability for false representations as to in- for a change of venue.-Coleman V. Hayes
cumbrances, see “Fraud," 8 1.

(Sup.) 12.
Purchasers at tax sale, see "Taxation," $ 3. Change of place of trial to county of plain-
Reception of evidence in action on contract, tiff's residence held error.-Ferrin v. Huxley
see “Trial," $ 3.

(Sup.) 1005.
Requirements of statute of frauds, see "Frauds,

Statute of," $ 1.
Specific performance of contract, see "Specific

Usurious contracts of sale, see “Usury," 1. Setting aside, see “New Trial,” 2.


and 121 New York State Reporter VESTED REMAINDERS.

WHARVES. Creation, see “Wills,” $ 4.

Municipal ownership and regulation, see “Mu

nicipal Corporations," $ 6. VICE PRINCIPALS.

Owner of wharf in New York may collect

charges for its occupation by merchandise for See “Master and Servant,” $ 5.

less than 24 hours, notwithstanding Greater New York Charter, Laws 1901, p. 372, c. 466.

§ 862.-International Hide & Skin Co. v. New VILLAGES.

York Dock Co. (Sup.) 886.
See "Municipal Corporations," $ 8.


See “Descent and Distribution"; "Executors

and Administrators." See "Master and Servant,” s 2

Charitable bequests and devises, see “Chari

ties." WAIVER.

Construction and execution of trusts, see

"Trusts." See “Estoppel.”

Designation of beneficiary of insurance by will

see "Insurance," 13. Of objections to particular acts or proceedings. Equitable conversion of devised partnershi; See "Pleading," $ 8; “Trial," $ 7.

real estate, see “Partnership," $ 3.

Gift of legacy, see “Gifts," $ 1. Breach of contract, see "Sales," $ 2.

Legacy and succession taxes, see "Taxation," Of rights or remedies.

& 4. Amendment of certiorari to review tax assess-8 1. Contracts to devise or bequeath. ment, see "Taxation," $ 2.

Evidence in an action to partition land held Forfeiture of insurance, see "Insurance," $ 7. | insufficient to support a finding of a parol

agreement, partly performed, of deceased to WARRANT.

will his property to one of defendants.-Pattat

v. Pattat (Sup.) 140. For dispossession of tenant, see "Landlord and

§ 2. Requisites and validity. Tenant," $ 6.

Evidence held sufficient to admit a holo

graphic will to probate.-In re Palmer's Will WARRANTY.

(Sur.) 249. By insured, see “Insurance," $$ 5, 6.

8 3. Probate, establishment, and annul.

ment. In leases, see "Landlord and Tenant,” g 1. On sale of goods, see “Sales," $$ 3, 5.

A beneficiary under a destroyed will held not entitled to contest a later will, in case the destruction was purposely done by testatrix while she had testamentary capacity.-In re Rayner's

Will (Sup.) 23. § 1. Conveyances and contracts.

A surrogate's order denying probate of a will A grantee in a deed held to have taken there- I held sufficiently doubtful to require a trial by under as an appurtenance of the premises the jury, as authorized by Code Civ. Proc. $ 2588. right of taking water from adjoining land.-Ma

-In re Rayner's Will (Sup.) 23. son v. Thwing (Sup.) 991.

Where probate of a will is denied, the execA purchaser of lands held not a bona fide pur- lutor named therein is entitled to appeal, under cha ser as to the waters of a spring on the lands. 1 Code Civ. Proc. 88 1294, 2568.--In re Rayner's -Mason v. Thwing (Sup.) 991.

| Will (Sup.) 23. A reservation in a deed held to have rendered

Where a surrogate's decree denying probate the right of taking water from the premises of a will is not entirely satisfactory, it will be conveyed an appurtenance to other premises of reversed, and the issues of fact directed to be the grautor.-Mason v. Thwing (Sup.) 991.

tried by a jury.-In re Shannon's Will (Sup.) § 2. Artificial ponds, reservoirs, and

656. channels, dams, and flowage. 8 4. Construction. One's easement of flooding lands held not af-| A bequest by an attorney held not to include fected by his periodical letting the water out, claims for legal services.-In re Northup's Will to suit his own pleasure only.-Hall v. State (Sup.) 318; In re Long Island Loan & Trust (Sup.) 338.

Co., Id.

A will construed, and held, that the children

of a deceased daughter of the testator took all Private rights of way, see "Easements."

of her share under the will, and not as next of Public ways, see “Highways"; "Municipal kin, subject to the interest of her husband.Corporations," 6.

Lewisohn v. Henry (Sup.) 325.


- Where a will is not punctuated with accura- | under Coda Civ. Proc. $ 834.–Becker v. Metro-
cy, or even systematically, the punctuation aids politan Life Ins. Co. (Sup.) 980.
its construction but little, and must otherwise

An attorney held exempt from testifying as
be disregarded, if it conflicts with the testa-

to whom he represented in a certain purchase ;
mentary scheme as gleaned from its provisions,

this involving the disclosure of confidential com-
or prevents ascribing to its words their ordi-

munications.-In re Shawmut Min, Co. (Sup.)
nary meaning.-Lewisohn v. Henry (Sup.) 325.

1059; Appeal of Miller, Id.
A bequest in a will of a fund "to be equally

| Certain witnesses held not incompetent to tes-
divided between the Indian missions and the
domestic missions of the United States of

tify on the accounting by an executor, under
America," does not entitle the “Domestic &

Code Civ. Proc. $ 829, as interested in the
Foreign Missionary Society of the Protestant

event.-In re Sproule's Estate (Sur.) 432.
Episcopal Church in the United States of Amer- / 8 2. Examination.
ica" to claim the bequest.-Bowman v. Domes- Question held not objectionable as calling for
tic & Foreign Missionary Soc. of Protestant the condition of the building after the accident;
Episcopal Church (Sup.) 621.

and, if such evidence came in in the answer,
Will held to vest in testator's niece and her to

the remedy was to strike.-Nelson v. Young
heirs, subject to its provisions, title to prop-

(Sup.) 69.
erty immediately on testator's death.-Rooney In action for servant's injuries, question on
*v. Bodkin (Sup.) 800.

cross-examination as to defendant's duties as
r A will construed, and held, that testator's

contractor held not objectionable, in view of
widow took an absolute estate, rather than a

witness' testimony on direct examination.-
life estate.-Oakes v. Massey (Sup.) 1118.

Nelson v. Young (Sup.) 69.
Amount necessary to be set aside, under will,

Where a witness refuses to answer a pertinent
to meet anriuities provided for in the will, de-

question on cross-examination, his testimony in
termined.-In re Sproule's Estate (Sur.) 432.

chief should be stricken out.-Gallagher v. Gal-

lagher (Sup.) 343.
§ 5. Rights and liabilities of devisees

Where a witness was cross-examined as to
and legatees.

part of his testimony at a coroner's inquest, the
Legacy held a general one, and executor was

counsel for the opposite party was entitled to
entitled to commissions for making sale and

introduce the balance of the witness' statement
dividing the property bequeathed thereby.-In re

on such subject.-Sextou v. Onward Const. Co.
Fisher (Sup.) 567.

(Sup.) 550.
Under a will, a deed by testator's executors,

§ 3. Credibility, impeachment, contra-
his widow, and then living heirs held insufficient

diction, and corroboration.
to convey a fee, as against future rights of the

In a criminal prosecution, it was error for the
issue of testator's children, in whom interests

court to permit the witness for the people,
might vest at the death of the widow, after the

called in rebuttal, to characterize the testimony
death of their parent during the widow's life-

of defendant's witnesses as untrue.-People v.
time.-Huber v. Case (Sup.) 663.

| Buckley (Sup.) 191.
Executors held, under provisions of will, not

1 In action for injuries, exclusion of evidence
entitled to hold certain property devised to tes-

as to how much physician had been paid to
tator's niece, and liable to account for rents

testify for plaintiff held error.-Brown v. In-
when they did so hold it.-Rooney V. Bodkin

bi | terurban St. Ry. Co. (Sup.) 461.
(Sup.) 800.
Legacy made to adopted child held not sub-

ject to abatement.-In re Brown (Sur.) 247.

Documentary evidence, see "Evidence," $ 4.

Liens for work and materials, see "Mechanics'

See “Depositious"; "Evidence."

Opinion evidence, see "Evidence,” g 6.
Examination by grand jury, see "Grand Jury.” In an action for services, plaintiff held entitled
Experts, see "Ěvidence," $ 6.

to a judgment under the evidence.-Mulligan v.
Opinions, see "Evidence," $ 6.

Tobin (Sup.) 406.
Perjury, see “Perjury.”
Review of questions dependent on credibility,

see “Appeal," $ 5.
Testimony of accomplices, see "Criminal Law,"

Particular writs.
$ 3.

See "Execution”; “Habeas Corpus”; “Injunc-
§ 1. Competency.

tion”; “Mandamus"; "Quo Warranto"; "Re-
Witness held incompetent as to transactions plevin."
with a partner, since deceased, as against a Of inquiry, see "Damages," $ 4.
surviving partner.-Connolly v. Keevan (Sup.)

Physician held incompetent to testify as to in-
formation obtained in a professional capacity, | Estates for years, see "Landlord and Tenant."

87 N.Y.S.-77


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