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and 121 New York State Reporter
| & Trust Co. (Sup.) 65; Appeal of Sloan, Id.
estop beneficiary, has burden of showing that
the question involved was litigated.-In re Long
Testamentary trustee held not liable for re-
fusing to accept refund of dividends erroneouslr
paid out to life beneficiary as income.-Inr
The division of a testamentary trust estate
| into five separate trusts, disclosed in an ac-
counting by the trustee and passed upon and
approved by the surrogate over objection, be-
comes res judicata.-In re Elting (Sup.) 833;
In re Curtiss' Will, Id.
Under Code Civ, Proc. 8 2813, surrogate's
also remainderman not in esse, as to alleged
devastavit; section 2481 being inapplicable.-
In re Elting (Sup.) 833; In re Curtiss' Will,
Certain conditional devisees in remainder of a
trust fund held necessary parties to a suit by
the receiver of the first tenant in remainder to
A suit to compel a testamentary trustee to
ay account held maintainable against him in his
representative capacity only.- Leonard v. Pierce
$ 5. Establishment and enforcement of
Under Real Property Law (Laws 1896, p.
See "Corporations," $ 2.
See “Trade Unions."
Taxation of federal bonds, see "Taxation," $ 4.
| Taxation of, see “Taxation," § 1.
USE AND OCCUPATION.
Decree on trustee's accounting held not to A reservation in a sale of premises of the
TURNPIKES AND TOLL ROADS.
imited time held not subject to any duty to 8 1. Construction and operation of con-
Option for reconveyance on repayment held
to survive time limit, where grantee receives
Where a grantor, in a deed with an option
an, is a question of fact.-Forgotson v. Raubit advances to the grantee have exceeded the con-
sideration of the deed, he must at once sur-
render and deed the property, or exercise his
option to purchase.-Connolly v. Keenan (Sup.)
The measure of liability of a person under an
option contract for the purchase of a tract of
land held determined by the actual acreage of
the tract.-Warden v. Tesla (Sup.) 853.
Where a purchaser of land, under a contract
by the vendor to repurchase in case the ven-
dee did not sell the same at a profit, parted
with a portion of his interest in the land, he
could only enforce the vendor's agreement to
Whether a purchaser of land had used rea-
sopable diligence to resell the same, and wheth-
er the vendor had acquiesced in the purchaser's
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
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
§ 4. Remedies of vendor.
dence offered by defendant as to the number
Tesla (Sup.) 853.
§ 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-
ing a continuance, waives his right to move
Statute of," $ 1.
VENDOR AND PURCHASER.
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 “Descent and Distribution"; "Executors
and Administrators." See "Master and Servant,” s 2
Charitable bequests and devises, see “Chari
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.
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.
WATERS AND WATER COURSES.
- Where a will is not punctuated with accura- | under Coda Civ. Proc. $ 834.–Becker v. Metro-
An attorney held exempt from testifying as
to whom he represented in a certain purchase ;
this involving the disclosure of confidential com-
munications.-In re Shawmut Min, Co. (Sup.)
1059; Appeal of Miller, Id.
| Certain witnesses held not incompetent to tes-
tify on the accounting by an executor, under
Code Civ. Proc. $ 829, as interested in the
event.-In re Sproule's Estate (Sur.) 432.
and, if such evidence came in in the answer,
the remedy was to strike.-Nelson v. Young
cross-examination as to defendant's duties as
contractor held not objectionable, in view of
witness' testimony on direct examination.-
Nelson v. Young (Sup.) 69.
Where a witness refuses to answer a pertinent
question on cross-examination, his testimony in
chief should be stricken out.-Gallagher v. Gal-
lagher (Sup.) 343.
Where a witness was cross-examined as to
part of his testimony at a coroner's inquest, the
counsel for the opposite party was entitled to
introduce the balance of the witness' statement
on such subject.-Sextou v. Onward Const. Co.
§ 3. Credibility, impeachment, contra-
diction, and corroboration.
In a criminal prosecution, it was error for the
court to permit the witness for the people,
called in rebuttal, to characterize the testimony
of defendant's witnesses as untrue.-People v.
| Buckley (Sup.) 191.
1 In action for injuries, exclusion of evidence
as to how much physician had been paid to
testify for plaintiff held error.-Brown v. In-
bi | terurban St. Ry. Co. (Sup.) 461.
WORK AND LABOR.
Documentary evidence, see "Evidence," $ 4.
Liens for work and materials, see "Mechanics'
Opinion evidence, see "Evidence,” g 6.
to a judgment under the evidence.-Mulligan v.
Tobin (Sup.) 406.
See "Execution”; “Habeas Corpus”; “Injunc-
tion”; “Mandamus"; "Quo Warranto"; "Re-
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