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tive covenants, held not burdened by an equita

EMINENT DOMAIN. ble ensement restraining the construction of buildings otherwise than in accordance with

Public improvements by municipalities, the restrictive covenants to which the other

"Municipal Corporations," $ 2. lots were subject.-Gebhard v. Addison (Sup.) 418.

§ 1. Nature, extent, and delegation of Covenants restricting grantee's right of build

power. ing ou adjoining property, for protection of 90 of the railroad law (Laws 1890, p. 1108,

Laws 1895, p. 791, c. 933, amending section grantor's residence, held abrogated by removal of dwelling, erection of other building, and abutting owner's property rights in the bed of

c. 565), held not to prohibit condemnation of an changed conditions of neighborhood.- Deeves v. Constable (Sup.) 592.

a street.-Schenectady Ry. Co. v. Peck (Sup.)


§ 2. Proceedings to take property and

assess compensation. $1. Right of action and defenses.

Commissioners of estimate and assessment in Laws 1883, p. 482, c. 283, § 9, giving the proceedings to acquire land for a street, and forest, fish, and game commission custody and under Laws 1895, p. 2051, c. 1006, § 14, to decontrol of the forest preserve, limits such com- termine the compensation of property owners mission to lands owned or acquired by the on the discontinuance of a street, held required state; and, while it may be in possession of to make separate reports.-In re City of New the forest preserve, it cannot be in possession | York (Sup.) 18. of land claimed by plaintiff in ejectment unless it is admitted that such lands are owned by

EMPLOYES. the state.-Raquette Falls Land Co. v. Middleton (Sup.) 1081,

See "Master and Servant." § 2. Pleading and evide.ce. Forest, fish, and game commission held not in

possession of any land, so as to render it liable
to suit in ejectment.--Raquette Falls Land Co. See "Ejectment."
v. Middleton (Sup.) 1081.


Particular subjects of equitable jurisdiction and Bringing an action against the personal representative of a co-payee in a draft, to recover See “Account"; "Creditors' Suit";. "Fraudu

equitable remedies. one's share of the proceeds, is not an election, lent Conveyances"; "Injunction"; "Interand abandonment of a prior action against the co-payee's indorsee for the same relief.--Allen

pleader”; “Partition," $ 1; “Receivers" ;

"Reformation of Instruments”; “Specific Perv. Corn Exch. Bank (Sup.) 1001.

forinance''; “Trusts." ELECTIONS.

ESTABLISHMENT. Local option elections, see “Intoxicating Liq. Of railroads, see “Railroads,” { 1

uors," $ 1. Mandamus to election officers, see "Mandamus," 8 2.

ESTATES. f 1. Ordering or calling election, and Decedents' estates, see “Descent and Distribu

notice. Under Laws 1896, p. 115, c. 183, $ 33, subd.

tion"; "Executors and Administrators.' 9, and section 9 (page 106), relating to call- | Estates for years, see “Landlord and Tenant.” ing special elections for a village, the president and trustees held the proper authorities to call

ESTOPPEL. a special election to choose a new trustee, aud not the village clerk.--In re Travis (Sup.) 534. By judgment, see "Judgment," $ 5. § 2. Registration of voters.

To deny authority of agent, see "Principal and Under primary election law, enrollment in to deny contract of infant, see "Infants,” 1.

Agent," $ 3. New York City held permanent for one year. To object to establishment of grade crossing, People v. Voorhis (Sup.) 848.

see “Railroads,” 1. ELECTRICITY.

EVIDENCE. Restraining interference with use of subway, see “Injunction," § 4.

See "Discovery"; "Depositions"; "Witnesses."

Adinissibility of contract made by corporate offiELEVATORS.

cer as determined by authority to execute, see

"Corporations," $ 4. See “Master and Servant," $ 6.

Considered on review, see “Appeal,” 8 7.

and 118 New York State Reporter Harmless error in admission or exclusion, see the court cannot take judicial notice that the "Appeal," § 12.

street line and house line on a certain street Objections for purpose of review, see "Appeal.” are the same.-City of New York Y. Childs Questions of fact for jury, see "Trial," $ 6. (Sup.) 164. Reception at trial, see "Criminal Law," $ 3;

The court will take judicial notice that meth“Trial," $$ 4, 8.

ods of instruction have changed in the last 25 Review on appeal, see “Appeal," § 11. Verdict or findings contrary to evidence, see

years, and that one who was competent to "New Trial," $ 1.

teach then would not necessarily be qualified

now.-People v. Maxwell (Sup.) 947. As to particular facts or issues. See “Damages." 84: “Denth." 81: “Gifts." 8 2. Relevancy, materiality, and com$ 1; "Payment,” $ 2; "Release," $ 1.

petency in general. Assignment of mortgage, see "Mortgages," $ 1.

In an action for damages by a nuisance, in

which plaintiff claimed loss of boarders, conAuthority of broker, see "Brokers," $ 3. Conduct of jurors as affecting right to new tri

versations between these boarders and plain

tiff held admissible as res gestæ.-Hoffman v. al, see "New Trial," $ 2.

Edison Electric Illuminating Co. (Sup.) 437. Good faith of purchaser of note, see "Bills and Notes," $ 7.

Expressions of opinion by the superintendent Mistake in compromise agreement, see "Compro- of insurance as to the legal rights of parties, mise and Settlement."

based upon an ex parte statement contained in Right to share in decedent's estate, see "De- a letter to him, are neither a judicial decision scent and Distribution," $ 2.

nor competent evidence in an action involving Undue influence, see "Wills," $ 2.

such rights.-Calandra v. Life Ass'n of AmeriIn actions by or against particular classes of

ca (Sup.) 498. parties.

In an action for breach of a lessor's agreement See "Carriers," 1. 2; "Guardian and Ward,” to give possession, evidence of the rent paid by

$ 2; "Husband and Wife," § 4; “Landlord the lessee for other premises of a similar charand Tenant," $$ 4, 5; "Master and Servant," | acter is incompetent.--Rosenblum v. Riley (Sup.) 88 1, 6, 7; "Municipal Corporations," $ 5; 884, "Partnership," $ 3; "Railroads," $ 3; "Sher- In an action for personal injuries, evidence reiffs and Constables," $ 2; "Street Railroads," lating to other patients of the physician treating $ 2.

plaintiff and testifying for her, and as to what Insurance company, see "Insurance,” g 9. they did and as to what records he kept, held In particular civil actions or proceedings.

inadmissible.—Deutschmann v. Third Ave. R.

| Co. (Sup.) 887. See "Creditors' Suit"; "Interpleader," $ 2;

"Malicious Prosecution"; "Negligence,” & 3; In an action against a street railway com"Reformation of Instruments."*"$i: “Replev | pany for negligence, causing death, certain eviin," $ 1; "Trover and Conversion"; "Work

dence held inadmissible upon an issue as to and Labor."

whether or not defendant's car jumped the For breach of contract, see "Contracts," $ 5;

5. track.--Perras v. United Traction Co. (Sup.) "Sales," & 7.

992. For breach of warranty, see “Sales," § 7.

1 $ 3. Best and secondary evidence. For broker's commission, see "Brokers," $$ 3, 4. For damages caused by automobile, see "High

| Where, in an action for premiums advanced ways," $ 1.

on insurance policies, defendant fails to produce

no son «Nuisance » | the policies on notice, the person claiming to $ 1.

have delivered them may state their contents.For discharge from employment, see "Master

Hess-Mott Co. v. Brown (Sup.) 168. and Servant," $ 1.

§ 4. Admissions. For obstruction of water supply, see "Waters and Water Courses," & 1.

Record held to show that plaintiff in the acFor personal injuries, see "Carriers," & 2;

tion at bar was the defendant in an action in "Landlord and Tenant," $ 4; "Master and

another state in which garnishee process had Servant," & 6; "Municipal Corporations," 8

issued against defendant at bar.-Gottlieb v. 5; "Railroads." $ 3; "Street Railroads," '$ 2.

| Alton Grain Co. (Sup.) 413. For price of goods sold, see “Sales," $ 6.

In an action by a real estate agent for comFor referee's fees, see "Reference," $ 2.

missions, statements by defendant's husband For rent, see "Landlord and Tenant," $ 5. held incompetent, in the absence of any proof On insurance policy, see "Insurance," $ 9. that the husband was defendant's agent.-On note, see "Bills and Notes," $ 7.

Winans v. Demarest (Sup.) 504. To recover goods sold, see “Sales," $ 6.

Admission of administrator held admissible In criminal prosecutions.

against estate, though not conclusive.--Crouse See "Homicide," & 1; "Rape," 1.

v. Judson (Sup.) 755. For offenses against game laws, see "Game."

The statement of a motorman, after colliding $ 1. Judicial notice.

with a delivery wagon, held not admissible In an action to recover a penalty for eu- / against the railroad.-Rogers v. Interurban St. croaching on a street by construction of steps, I Ry. Co. (Sup.) 974.


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$ 5. Declarations.

Written agreement to purchase a crop of to. A communication from a connecting carrier bacco held a complete contract which could not to a shipper that goods were in good condition be varied by parol.-Gray v. Meyer (Sup.) 613. when delivered by it to the delivering carrier

Parol evidence held inadmissible to vary the is not evidence against the latter as to the con

terms of a written lease.--Liebeskind v. Moore dition of the goods.- Thyll v. New York & L. Co. (Sup.) 850. B. R. Co. (Sup.) 175.

Contract for installment payment for partnerIn an action on a contract, statements, and ship effects held not variable by parol evidence letters from defendant to plaintiff held inad- of construction subsequently put on it by one missible to explaiu defendant's breach of the partner.-Kinney v. D. H. McBride & Co. (Sup.). contract, because admissions in its own favor. 338. -Grant v. Pratt & Lambert (Sup.) 983.

$ 9. Opinion evidence. Declarations of the person, to whom a note In an action for personal injuries, held propwas given, that it was given as a mere mem er to refuse to strike certain evidence of a oranda and was not to be negotiated, held not physician as too uncertain.-Moritz v. Interadmissible against his assignee.- Mitchell V. urban St. Ry. Co. (Sup.) 162. Baldwin (Sup.) 1043.

An expert on the value of property cannot § 6. Hearsay.

properly state what he offered for the property. The question when shrinkage cracks in cast

-Walker v. Farrell (Sup.) 182. ings appear, asked of one not a practical mold In action for negligence in dyeing skins, ques er and who knew nothing about them, except tions asked defendant as to his method held not as he came across them in his business, held objectionable as being immaterial.-Steinberg v. to call for hearsay.-White Mfg. Co. v. De Schleshinger (Sup.) 522. La Vergne Refrigerating Mach. Co. (Sup.) 192.

On the issue whether a foreign corporation § 7. Documentary evidence.

was doing business in the state during a speci

fied period, the conclusion of an agent of the A witness, on being shown a writing purport- | corporation was not evidence.-M. S. Huey Co. ing to be signed by the treasurer of a corpora

v. Rothfeld (Sup.) 883. tion, may state whether the signature was that of the treasurer, over objection that it was not shown that he was authorized to execute the

EXAMINATION. instrument.--Coney Island Automobile Race Co. v. Boyton (Sup.) 317.

Of adverse party before trial, see “Discovery,"

$ 1. $ 8. Parol or extrinsic evidence affect- of expert witnesses, see "Evidence," $ 9. ing writings.

Of person accused of crime, see "Criminal Extrinsic evidence held admissible to render Law," § 1. description of premises, in lease giving lessee of witnesses in general, see “Witnesses,” s 3. option to purchase, definite.- Heyward v. Willmarth (Sup.) 75.

EXCEPTIONS. Evidence of what was said between the parties to a note cannot be received to contradict Necessity for purpose of review, see "Appeal.” its terms.-Oppenheimer v. Kruckman (Sup.) 129. In an action for the price of goods ordered

EXCESSIVE DAMAGES. by written contract, parol evidence as to terms of the contract held inadmissible. - Hess v.

See “Damages," $ 3. Liebmann (Sup.) 178.

The terms of a written contract cannot be EXCHANGE OF PROPERTY. varied or contradicted by parol evidence.Rooney v. Thomson (Sup.) 263.

See “Brokers," $ 2. Where a written contract required plaintiff to furnish defendant, free of cost, certain appli

EXCISE. ances, parol evidence of an oral agreement that the appliances should be paid for was inad- Regulation of traffic in intoxicating liquors, see missible.-Rooney v. Thomson (Sup.) 263.

"Intoxicating Liquors." The word "plant," in a written contract, held not ambiguous, so as to render parol evidence

EXECUTION. admissible to explain its meaning.-Rooney v. Thomson (Sup.) 263.

See "Attachment"; "Judicial Sales." Parol evidence held admissible to explain the 1 1. Nature and essentials in general, uncertainty in a written contract.--Rooney v. Thomson (Sup.) 263.

Under Code Civ. Proc. $ 779, and section 14,

subd. 3. held that, on failure of clients to comThe legal effect of a written lease under seal ply with order made on substitution of attor. cannot be destroyed by testimony of an oral ney, the attorney might have an execution.-agreement.--Kaven v. Chrystie (Sup.) 470. Kane v. Rose (Sup.) 111.

and 118 New York State Reporter A third person, who sells mortgaged chat-grant letters of administration cannot be attels on execution against the mortgagor, after tacked collaterally.-Tanas v. Municipal Gas the mortgagor is in default, held liable to the Co. of City of Albany (Sup.) 1053. mortgagee for conversion.-Biehler v. Irwin

Revocation of letters of administration to (Sup.) 574.

creditor granted, and nonresident brother de$ 2. Supplementary proceedings.

cedent appointed administrator.-In re Tyers A receiver of a debtor, in supplementary pro

Estate (Sur.) 934. ceedings, held not liable for conversion of a

Continuous absence of executrix during the liquor tax certificate, which he received and

year after her appointment held not ground for surrendered under an order of the court, with

her removal.-In re Magoun (Sur.) 940. out notice of plaintiff's claim of title thereto.

Scandalous matter in affidavit of executrix in Ernest Ochs v. Pobly (Sup.) 1.

resistance to petition for her removal stricken A judgment debtor held to reside in the city of

out.-In re Magoun (Sur.) 910. New York, within Code Civ. Proc. $ 2458, relating to supplementary proceedings.-In re

Appointment of administrator held properly Rose (Sup.) 276.

denied to one improvident, within meaning of

Code Civ. Proc. $ 2661.-In re Ferguson (Šur.) Under Code Civ, 'Proc. $ 2458, subd, 2, an

1102. affidavit for an order for examination of judgment debtor in supplementary proceedings must

Application for appointment as administrator state his residence at the commencement of

with will annexed by a beneficiary of a trust proceedings.-Lawyers' Title Ins. Co. v. Stan

created under the will denied.-In re Ferguson ton (Sup.) 468.

(Sur.) 1102 Under Code Civ. Proc. $ 2454, supplementary 8 3. Collection and management of esproceedings will be dismissed on motion of the

tate. judgment debtor, where there is nothing to col An administrator held not chargeable with a lect under the judgment.--Cobb v. Edson (Sup.) fund received solely by the other administrator. 916.

-In re Provost's Estate (Sup.) 29. Evidence reviewed, and held, that city court A condition, attached to an order adjourning had jurisdiction to adjudge debtor in supple the hearing of an application for instructions mental proceedings in contempt.-People v. Mc- to executors held not error.-In re Bodkin's EsCarthy (Sup.) 1062.

tate (Sup.) 552. Time for examining third person in supple . The addition of a clause to an order, after mentary proceedings held barred after 10 years. its amendment, that "the order so amended re-Peck v. Disken (City Ct. N. Y.) 1094.

main in full force and effect," held immaterial,

-In re Bodkin's Estate (Sup.) 552. 8 3. Execution against the person.

Female domestic servant held within Munic- A recital that an order for instructions to ipal Court Act, Laws 1902, p. 1569, c. 580, $

executors was made after hearing attorney for 274, authorizing execution against the person in

petitioner, and that appellant's attorney was actions for wages by laborers, etc.-Greenberg

present and did not oppose, held to preclude ap4. Laeov (Sup.) 930.

pellants from attacking the order.-In re Bodkin's Estate (Sup.) 552.

Executors are not chargeable as such with a EXECUTORS AND ADMINISTRATORS.

sum paid by a prospective contract purchaser of

real estate for examination of the title thereto. See "Descent and Distribution"; "Wills."

-Carideo v. Austin (Sup.) 777. Admissions by administrator as evidence, seen "Evidence," $ 4.

Executors held liable as such for money paid Necessity of making executor party to proceed

ed. to them by prospective purchasers under conings for accounting by committee on death of

ftract for sale of testator's real estate, title to insane person, see "Insane Persons," $ 1.

which failed.-Carideo v. Austin (Sup.) 777. Reference to determine question of alleged gift! A surviving executor held chargeable with in hands of administrator, see "Reference," 8 any misappropriation of the investments belong

ing to the estate by the executor in possession. Testamentary trustees, see “Trusts."

-In re Hunt (Sup.) 790. $1. Administration in general.

| Executor will not be allowed expense of fruitA sole distributee of an estate against which less suits.-In re Stanton (Sur.) 46. no debts exist may appropriate it without ad Executor, mingling funds of estate with his ministration.--Dickinson v. Hoes (Sup.) 152. own, charged 4 per cent. interest, with annual $ 2. Appointment, qualification, and

rests.--In re Stanton (Sur.) 46. tenure.

$ 4. Allowances to surviving wife, hus. Code Civ. Proc. & 2661, held to permit the ap

band, or children. pointment as administrator of one not a citi- Money allowance made to widow, where ar zen of the United States, if a resident of the ticles exempt from inventory are nonexistent. state.- Tanas v. Municipal Gas Co. of City of --In re Hulse (Sur.) 220. Albany (Sup.) 1053.

A widow, administratrix of her husband, held The appointment of an administrator of a de- not to have waived her allowance.-In re Hulse cedent by a surrogate having jurisdiction to l(Sur.) 220.


$ 5. Allowance and payment of claims. I istrator's bond.-In re Provost's Estate (Sup.)

The Surrogate Court neid to have power, 29. under Code Civ. Proc. $ 2472, subd. 4, to direct In a suit

In a suit by a surety on a deceased administrapayment of a sum by an administrator, where

tor's bond for an accounting by the surviving execution from the Supreme Court against him

administrator, held, that surety would not be had been returned nulla bona (sections 1825, 2552, 2555).-In re Mahoney's Estate (Sup.)

bound by survivor's assertion of facts relative

to a certain fund which had come into the hands 329.

of the estate.-In re Provost's Estate (Sup.) 29. Under Code Civ. Proc. 88 1822, 2743, as

Surrogate's decree on accounting of executor amended by the amendment of 1895, held, that a surrogate has jurisdiction to determine a dis

held to improperly conclude contestant as to puted claim against a decedent's estate on is,

partnership assets claimed to exist.-In re Irvid

(Sup.) 707. consent of the parties.-Clark v. Hyland's Estate (Sup.) 640.

All the sureties on an admivistrator's bond A husband who has necessarily paid for his

held necessary parties to an accounting by him. wife's sepulture is entitled to reimbursement

--In re Sill's Estate (Sur.) 213. out of her estate.-Pache v. Oppenheim (Sup.) Decrease in market value of decedent's es926.

tate, consisting largely of stocks and bonds, Attorney's lien on estate in surrogate's court

within 50 days after appointment of adminisheld not lost by transfer of estate to a coexecu

trator, held not chargeable to the administra

tor.-In re Thompson (Sur.) 1111. tor.-In re Crough's Estate (Sur.) 936. $ 6. Distribution of estate. Administrator held not controlled, in sale of

EXEMPTIONS. personalty for purpose of distribution, by direction of next of kin.--In re Thompson (Sur.)

S|From taxation, see "Taxation," $ 5. 1111.

EXPERT TESTIMONY. $ 7. Sales and conveyances under order of court.

In civil actions, see "Evidence," $ 9. A complaint to compel executors to sell, stating no cause of action, is not saved from dismissal by an answer asking for construction of

EXPRESS COMPANIES. the will.-Levett v. Polhemus (Sup.) 1049. A complaint by a legatee against executors

See “Carriers," 1. held not to present a case for a court of equity, the surrogate having jurisdiction on an ac

EXPULSION. counting.-Levett v. Polhemus (Sup.) 1049. Distribution of assets of estate in kind or

Of member of corporation, see "Corporations," dered to avoid loss to next of kin.-In re Thompson (Sur.) 1111.

EXTORTION. $ 8. Actions.

The allegations of the complaint in an action See "Threats.” to recover for services rendered decedent held not to show an election to accept as a perform

FACTORS. ance a deposit of certain bonds in payment | See “Brokers." thereof.-Cooper v. Brooklyn Trust Co. (Sup.) 88.

A contract for the appointment of plaintiff as Action against executrix by husband for ex-las to time, held subject to termination at de

defendant's sales agent, which was indefinite penses incurred in sepulture of his wife held to fendant's election.Outerbridge y. Campbell arise ex lege, and hence not within jurisdiction

(Sup.) 537. of Municipal Court, under Laws 1902, pp. 14871489, c. 380, tit. 1, § 1, subds. 1-19.-Pache v. Oppenheim (Sup.) 926.

FALSE IMPRISONMENT. Code Civ. Proc. $ 1824, expressly dispenses See “Malicious Prosecution.” with the necessity of pleading assets in actions against executors.--Pache v. Oppenheim (Sup.) 926.

FEES. Allegations in pleading in action against executrix held to sufficiently state her qualification

In particular actions or proceedings. and capacity.--Pache v. Oppenheim (Sup.) 926. See “Divorce," $ 2.

Municipal Court Act, Laws 1902, p. 1489, c. of particular classes of officers or other persona 580, tit. 1, § 1, subd. 18, expressly authorizes

See "Officers," $ 1; "Sheriffs and Constables," that court to entertain an action against an ex

$ 1. ecutor.-Pache v. Oppenheim (Sup.) 926.

Attorney, see "Attorney and Client," & 4. $ 9. Accounting and settlement.

Attorneys in divorce proceedings, see "Divorce," A surviving administrator may be compelled 8 2. to account by the surety on the deceased admin- Referee, see "Reference," $ 2.

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