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(B) Subjects of Expert Testimony. $506 (N.Y.Sur.) An attending physician may not testify directly as to competency to make a will.-In re Schmidt's Will, 139 N. Y. S. 464. § 508 (N.Y.Sur.) The opinions of skilled witnesses are admissible, whenever the subject is one upon which competency to form an opinion can be acquired only by a course of special study or experience. In re Schmidt's Will, 139 N. Y. S. 464.

$510 (N.Y.Sur.) An attending physician may testify directly as to the fact of insanity.-In re Schmidt's Will, 139 N. Y. S. 464.

(F) Effect of Opinion Evidence.

§ 574 (N.Y.Sur.) The opinion of a physician as to the sanity of a testator drawn from a hypothetical statement of facts, no matter how correctly stated, cannot be accepted in preference to direct and positive testimony contradictory thereto.-In re Schmidt's Will, 139 N. Y. S. 464.

If a testator was proven to be rational on certain days, a medical diagnosis that from certain pathological symptoms he could not be rational on any day is in law rejected.-Id.

XIII. EVIDENCE AT FORMER TRIAL OR IN OTHER PROCEEDING.

§ 579 (N.Y.Sup.) Under Code Civ. Proc. § 830, testimony of one who saw an accident at a rail road crossing in which a brother and sister, both unmarried, were killed, given in an action by an administrator for the death of one of them, was admissible in an action by the same administrator in an action for the death of the other; the witness having died.-Cohen v. Long Island R. Co., 139 N. Y. S. 887.

XIV. WEIGHT AND SUFFICIENCY.

$590 (N.Y.Sup.) Although contrary to the ethics of the profession for an attorney voluntarily to place himself in a position where it is necessary for him to become a witness in order to establish his client's cause of action, such act ought not to deprive the client of his evidence.-Hyman v. Hyman, 139 N. Y. S. 65.

§ 598 (N.Y.Sur.) The weight of evidence is not determined by the number of witnesses.-In re Schmidt's Will, 139 N. Y. S. 464.

EXAMINATION.

See Discovery: Execution, §§ 372, 386; Witnesses, §§ 265, 277.

EXECUTION.

X. SUPPLEMENTARY PROCEEDINGS. $372 (N.Y.Sup.) An application for the ex amination of a judgment debtor, under Code Civ. Proc. § 2436, held auxiliary and not sup plementary to the execution, and was not barred by the expiration of 10 years from the date of the return of an execution on the judgment. where another execution has been issued and no return made.-R. F. Stevens Co. v. Maus, 139 N. Y. S. 1059.

§ 386 (N.Y.Sup.) An order cannot be granted in supplementary proceedings, under Code Civ. Proc. 2441, for the examination of a third person, who is possessed of no property of the judgment debtor, except a dower interest in real estate claimed to have been fraudulently assigned.-Steinmann v. Hosier, 139 N. Y. S. 863.

The receiver of a judgment debtor appointed in supplementary proceedings can alone reduce to possession real property in the hands of third persons, and the judgment creditor cannot have such third person examined.—Id.

Under Code Civ. Proc. § 2441, an order for examination of third party in supplementary proceedings cannot be issued while the third party is under subpoena as a witness in supplementary proceedings against the judgment debtor.-Id.

8410 (N.Y.Sup.) An order directing a sale have directed a sale of the debtor's right, title, of certain stock of a judgment debtor should and interest in the stock.-Hawes v. Hawes, 139 N. Y. S. 639.

XI. EXECUTION AGAINST THE

PERSON.

$450 (N.Y.Sup.) The failure to give notice to a judgment creditor of the application for the discharge, under Judiciary Law, § 775, of the and fined, and confined in jail until payment of judgment debtor, adjudged guilty of contempt the fine or discharge, does not render the order of discharge void for want of jurisdiction, but the order protects the sheriff acting thereunder.-Goldreyer v. Foley, 139 N. Y. Š. 190.

EXECUTORS AND ADMINISTRATORS. See Conversion; Courts, §§ 98, 188, 198, 202; Descent and Distribution; Evidence, § 579; Pleading, § 317; Trusts; Wills; Witnesses, §§ 139, 144.

II. APPOINTMENT, QUALIFICATION, AND TENURE.

§ 24 (N.Y.Sur.) Where a father, who was the sole next of kin of his deceased daughter, died after taking out letters of administration on her Proc. § 2669, to the public administrator, as estate, letters must be granted, under Code Civ. against the right of either intestate's brother, or a creditor, or the father's widow and adminis tratrix.-In re Hagan's Estate, 139 N. Y. S. 463.

III. ASSETS, APPRAISAL, AND IN-
VENTORY.

$51 (N.Y.Sup.) A cause of action for death is no part of the assets of the decedent's estate, nor are the damages.-Cohen v. Long Island R. Co., 139 N. Y. S. 887.

here de novo, England remained the principal place of administration; it not being permissible to have two principal places of administration.-In re Hollins, 139 N. Y. S. 713.

$523 (N.Y.Sur.) The American executors of an English subject leaving personalty in this country from which bequests were made prop

IV. COLLECTION AND MANAGEMENT erly deducted the succession tax required by the

OF ESTATE.

(A) In General.

laws of England, before paying over such bequests. In re Hollins, 139 N. Y. S. 713.

EXEMPTIONS.

$115 (N.Y.Sur.) On the settlement of an executor's account, the surrogate cannot decree See Taxation, § 200.

that the executor return to the estate the salary received by him as an officer of a corporation in which the estate held stock.-In re Brown, 139 N. Y. S. 459.

Such return cannot be compelled on the assumption that the corporation was the estate. -Id.

EXPERT TESTIMONY.

See Evidence, §§ 474-574.

EXTRA WORK.

An objection to the retention by the executor See Interest, § 19. of a dividend on stock in such corporation, while assenting to the repayment of the dividend in which the estate was interested, has no merit.

-Id.

VI. ALLOWANCE AND PAYMENT OF
CLAIMS.

(A) Liabilities of Estate.

§ 209 (N.Y.Sup.) Where an estate was not liable upon a guaranty agreement executed by the decedent, the administratrix could not, by acquiescence and recognition, create such liability.-Metropolitan Trust Co. of City of New York v. Truax, 139 N. Y. S. 181.

VII. DISTRIBUTION OF ESTATE.

FACTORIES.

See Constitutional Law, §§ 89, 238; Master and Servant, § 10.

FACTORS.

See Brokers; Principal and Agent.

FALSE IMPRISONMENT.

I. CIVIL LIABILITY.

(A) Acts Constituting False Imprisonment

and Liability Therefor.

§ 4 (N.Y.Sup.) In an action for false imprisonment, the sole question was whether the ar8311 (N.Y.Sur.) Proceeds of milk of dairy rest was lawful, and the mental attitude of defarms, received by an executor under contracts fendant in causing the arrest was unimportant. of the testator, represent earnings of the per--Reisler v. Interborough Rapid Transit Co., 139 sonal estate, and, when they are paid to the N. Y. S. 335. devisees of the farms, the executor's account will be surcharged therewith.-In re Ellis' Estate, 139 N. Y. S. 1011.

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(B) Actions.

$37 (N.Y.Sup.) Where, in an action for false imprisonment, the plaintiff and two witnesses testified that plaintiff did not commit the misdemeanor for which he was arrested, it was error to dismiss the complaint.-Reisler v. Interborough Rapid Transit Co., 139 N. Y. S. 335. FALSE SWEARING.

See Perjury.

FARES.

$507 (N.Y.Sup.) The fact of the death of one of the next of kin should be determined by the Surrogate's Court on a judicial settlement of the account of an administrator, and not necessarily in a separate proceeding for that purpose. -In re Benjamin, 139 N. Y. S. 1091. $509 (N.Y.Sur.) Proof that a claim against See Carriers, § 382. a decedent's estate had not been paid nor taken into consideration in a settlement held sufficient cause for vacating a decree discharging the heir and her sureties from liability on a bond to pay debts, under Code Civ. Proc. 2481, subd. 6, authorizing modification of surrogates' decrees. In re Henry's Estate, 139 N. Y. S. 690.

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FELLOW SERVANTS.

XII. FOREIGN AND ANCILLARY AD- See Master and Servant, §§ 163-199, 287.

MINISTRATION.

$518 (N.Y.Sur.) Though executors were appointed in this country, where an English sub

FILING.

ject had securities, and the will was proved See Mechanics' Liens, § 115; Railroads.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

FINAL JUDGMENT.

See Appeal, § 78.

FIRE INSURANCE.

See Insurance.

FIRES.

FRAUDS, STATUTE OF.

VII. SALES OF GOODS.
(A) Contracts Within Statute.

$83 (N.Y.Sup.) The statute of frauds does not apply to a contract for a belt to be manufactured in a special manner, even though a third party is to manufacture the belt, where Morse v. Canaswacta Knitting Co., 139 N. Y. S. 634.

See Arson; Landlord and Tenant, §§ 200, 211. the vendor has to pay for such manufacture.

FIXTURES.

§ 27 (N.Y.Sup.) Where plumbing fixtures became, on installation, a part of the realty, because they could not be removed without substantial injury, they were subject to a prior recorded mortgage on the realty, notwithstanding an agreement that they should retain their character as personalty.-Croxson v. Flynn Plumbing & Heating Co., 139 N. Y. S. 1093.

Plumbing fixtures, removable without injury to the building, as between seller and buyer for installation in a building, are proper subjects of agreement that they should retain their character as personalty, and a chattel mortgage to secure the price gave the seller an interest therein, unaffected by notice of a prior recorded mortgage on the realty.-Id.

FOLLOWING TRUST PROPERTY. See Trusts, §§ 349, 358.

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VIII. REQUISITES AND SUFFICIENCY OF WRITING.

§ 118 (N.Y.Sup.) A note or memorandum of a sale, sufficient to satisfy the statute of frauds, need not be confined to a single paper, but may rest in letters, telegrams, bills, receipts, and other forms of signed writings.-Poel v. Brunswick-Balke-Collender Co., 139 N. Y. S. 602.

Certain writings with reference to a sale of rubber for future delivery held to constitute a sufficient_memorandum to satisfy the statute of frauds.-Id.

IX. OPERATION AND EFFECT OF STATUTE.

$125 (N.Y.Sup.) The statute of frauds does not declare an oral contract for the sale of goods to be invalid, but only requires that, to be valid, there must be a note or memorandum thereof. -Poel v. Brunswick-Balke-Collender Co., 139 N. Y. S. 602.

GARAGES.

See Landlord and Tenant, § 157.

GAS.

See Mines and Minerals, § 77.

87 (N.Y.Sup.) Gas franchise, granting the right to lay mains in streets in general terms, contemplates extension of the mains in new streets as opened and in old ones as extended. -Carroll v. Silver Creek Gas & Improvement Co., 139 N. Y. S. 161.

87 (N.Y.Sup.) Transportation Corporations Law, §§ 60, 61, constitute the franchise of the gas companies subject to its provisions, and the consent of municipal authorities to use of the streets merely makes the franchise operative in that municipality.-Northern Westchester Lighting Co. v. Village of Ossining, 139 N. Y. S. 373.

Consent of municipal authorities to use of streets by gas companies under Transportation Corporations Law, §§ 60, 61, gives the company the right to exercise within the municipality all the powers given by the statute during the whole term of its corporate existence.-Id.

GIFTS.

See Charities; Witnesses, §§ 150, 159.

I. INTER VIVOS.

money on deposit, as a gift, does not pass title § 30 (N.Y.Sup.) The delivery of an order for until the order is accepted or paid, and where it is necessary to present a bank book, as well

as the order, it must be shown that the book was delivered with the intent that title to it pass also.-Foley v. New York Savings Bank, 139 N. Y. S. 915.

$41 (N.Y.Sup.) Unless title has passed, the death of the donor of an order to pay money revokes it.-Foley v. New York Savings Bank, 139 N. Y. S. 915.

II. CAUSA MORTIS.

§ 82 (N.Y.Sup.) A gift causa mortis of a bank deposit is not established by the testimony of a third person that she witnessed the transaction between decedent and the donee, but did not notice the bank book which was delivered by the decedent to the donee, and did not know whether it was the one sued on.-Elliott v. Bank for Savings, 139 N. Y. S. 939.

GOOD FAITH.

not put the New York bankers in funds, to have thereby performed his obligation to the bankers, so that he owed them nothing upon his guaranty.-Sexton v. Fensterer, 139 N. Y. S. 811.

IV. REMEDIES OF CREDITORS.

$87 (N.Y.Sup.) Plaintiff, who furnished goods to T. Co., a corporation, under a contract of guaranty which used the name T. & Co., instead of T. Co., held entitled to recover, though there was a partnership by the name contained in the guaranty.-J. P. Duffy Co. v. Todebush, 139 N. Y. S. 112.

GUARDIAN AND WARD.

II. APPOINTMENT, QUALIFICATION, AND TENURE OF GUARDIAN.

§ 8 (N.Y.Sur.) A surrogate's power to appoint

See Bills and Notes, § 371; Vendor and Pur- guardians of infants is not incidental to a court chaser, §§ 230–242.

GOOD WILL.

See Corporations, § 312.

87 (N.Y.Sup.) Evidence held to show that defendants were induced to make a note through the fraudulent representations of the plaintiff that a certain restaurant for which the note was given would pay the owner $200 a month profit.-Butler v. Alter, 139 N. Y. S. 882. GRAND JURY.

See Indictment and Information.

GUARANTY.

See Executors and Administrators, § 209; Indemnity; Principal and Surety.

of probate, but is derived from statute, originally Laws 1802. c. 110 (3 Webster, p. 158; 1 Rev. Laws 1813, p. 454, § 30), and since then often re-enacted.-In re Lamb's Estate, 139 N. Y. S. 685.

The power conferred upon the surrogate by Rev. St. 1830 (2 Rev. St. [1st Ed.] pt. 2, c. 8, tit. 3, § 6 [now Code Civ. Proc. § 2821]), providing that the surrogate shall have the same power to allow and appoint guardians as the chancellors possessed, ought not to be taken away by mere implications of an inconsiderate or partial character.-Id.

$10 (N.Y.Sur.) While the surrogate may appoint a guardian other than the parent, it should do so only on a showing that such appointment is for the child's best interest.-In re Lamb's Estate, 139 N. Y. S. 685.

III. CUSTODY AND CARE OF WARD'S PERSON AND ESTATE.

I. REQUISITES AND VALIDITY. $ 29 (N.Y.Sur.) Maternal aunts who had car§ 16 (N.Y.Sup.) Where the form of a guaran- ed for infant since the death of the mother held ty contemplated subsequent deliveries in reli- entitled to letters of guardianship subject to a ance thereon, the deliveries themselves are suf- provision requiring that the child be brought ficient consideration.-J. P. Duffy Co. v. Tode-up in the father's religious faith.-In re Lamb's bush, 139 N. Y. S. 112.

III. DISCHARGE OF GUARANTOR. $53 (N.Y.Sup.) Where the note given for a loan guaranteed varied materially from the stipulations of the guaranty agreement, the guarantors were not bound unless there was a subsequent ratification.-Metropolitan Trust Co. of City of New York v. Truax, 139 N. Y. S. 181.

Estate, 139 N. Y. S. 685.

$30 (N.Y.Sur.) On application by maternal aunts for letters of guardianship, the father was entitled to have his request that the child be brought up in his religious faith complied with, though he had neglected the child and forfeited his right to any other consideration in the matter of the application.-In re Lamb's Estate, 139 N. Y. S. 685.

HABEAS CORPUS.

Where it appeared that a loan was made some time after the execution of the guaranty agreement upon terms differing materially there- See Criminal Law, § 231. from, the presumption was that the guarantors did not consent to the variance.--Id.

$74 (N.Y.Sup.) Defendant, who guaranteed

fore each of his drafts became due, upon which

HARMLESS ERROR.

to put New York bankers in funds 15 days be- See Appeal. §§ 1033-1060; Criminal Law, §§

they guaranteed a foreign correspondent against

loss on payment of such drafts, held, upon tak

ing up drafts accepted by the correspondent be

1169-1173.

HEARING.

fore they became due, and as to which he had See Constitutional Law, § 305.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

I. MUTUAL RIGHTS, DUTIES, AND
LIABILITIES.

HEARSAY.

HEIRS.

See Evidence, § 314.

See Descent and Distribution.

HIGHWAYS.

See Boundaries. § 20; Dedication; Eminent
Domain, 119: Gas; Licenses: Municipal
Corporations, §§ 658-706, 796, 806; Negli-
gence; Street Railroads, §§ 22, 25.

I. ESTABLISHMENT, ALTERATION,

AND DISCONTINUANCE.

(A) Establishment by Prescription, User, or Recognition.

§3 (N.Y.Sup.) Where a married woman is wrongfully abandoned by, or for good and sufficient reason leaves, her husband, she may ac quire a separate domicile for the purpose of enforcing her rights.-Wacker v. Wacker, 139 N. Y. S. 78.

of property of tenants by the entirety is in $14 (N.Y.Sup.) The fee in the street in front both, subject to the public easement, and the consent of the husband to a private party to put pipes therein is not binding on the wife.— Wightman v. Cottrell, 139 N. Y. S. 564.

VIII. SEPARATION AND SEPARATE

MAINTENANCE.

$300 (N.Y.Sup.) The Appellate Division, affirming a judgment dismissing the complaint of a wife for separation, has no power to make provision therein to compel the husband to support her.-Edwards v. Edwards, 139 N. Y. S. 1069.

IMPEACHMENT.

86 (N.Y.Sup.) Under Highway Law, § 209, declaring that land used by the public as a highway for 20 years or more shall be a public highway, held, that a road across defendant's land had become a highway by public user.-Village of Wellsville v. Hallock, 139 N. Y. S. 961. $7 (N.Y.Sup.) Permitted use of land public highway for 20 years, with maintenance See Witnesses, §§ 321, 390. by public authorities, creates a highway; but, unless it is taken charge of and maintained, a mere public use for 20 years, with consent of the owner, will not make it a highway.-Village of Wellsville v. Hallock, 139 N. Y. S. 961.

as a

IMPLIED CONTRACTS.

See Work and Labor.

IMPRISONMENT.

§17 (N.Y.Sup.) Where there was evidence of such user by the public as would have justified a record of a road as a highway by the public authorities, their failure to enter such record See Arrest; False Imprisonment. did not change the statutory mandate that the road should be a public highway.-Village of Wellsville v. Hallock, 139 N. Y. S. 961.

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IMPROVEMENTS.

See Landlord and Tenant, §§ 152-157, 200, 211: Mechanics' Liens; Municipal Corporations, § 277, 354.

INDEMNITY.

See Guaranty; Principal and Surety.

$11 (N.Y.Sup.) Where a contractor to grade an avenue employed one to carry earth from another street, where the contractor was excavating, for use in grading the avenue, the employé could recover for work in grading the avenue, and one agreeing to indemnify the city against claims was liable to the city, paying a judgment obtained by the employé.-City of New York v. Mechanics' & Traders' Bank of City of New York, 139 N. Y. S. 92.

INDICTMENT AND INFORMATION.
See Criminal Law, § 1024; Highways, § 186;
Nuisance, § 91; Sunday.

III. FORMAL REQUISITES OF IN-
DICTMENT.

$21 (N.Y.Co.Ct.) The inadvertent striking from the printed form of the indictment of the words "at the borough of Brooklyn, in the city of New York, in the county of Kings," does not render it demurrable, where it bears the caption, "County Court of the County of Kings."-People v. Kings County Iron Foundry, 139 N. Y. S. 447.

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