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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 proceedings, 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.Ernest Ochs v. Pohly (Sup.) 1.

Scandalous matter in affidavit of executrix in

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

out.-In re Magoun (Sur.) 940. 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 (Sur.) 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. $ 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, 8

1902.01569 580.8 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 apv. Laeoy (Sup.) 930.

pellants from attacking the order.-In re Bod

kin's Estate (Sup.) 552. EXECUTORS AND ADMINISTRATORS.

Executors are not chargeable as such with a 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, see "Evidence," $ 4.

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

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

of tract for sale of testator's real estate, title to insane person, see "Insane Persons," 8 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. $ . 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, husCode 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 arzen of the United States, if a resident of the sticles 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 I (Sur.) 220.

329.

& 5. Allowance and payment of claims. 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 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

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

Surrogate's decree on accounting of executor amended by the amendment of 1895, held, that

held to improperly conclude contestant as to a surrogate has jurisdiction to determine a disputed claim against a decedent's estate on

partnership assets claimed to exist.-In re Irvid consent of the parties.-Olark v. Hyland's Es

(Sup.) 707. tate (Sup.) 640.

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

held necessary parties to an accounting by him.

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

tate, consisting largely of stocks and bonds,

within 50 days after appointment of adminigAttorney's lien on estate in surrogate's court held 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.

EXEMPTIONS. Administrator held not controlled, in sale of personalty for purpose of distribution, by direc

From taxation, see "Taxation," $ 5. tion of next of kin.-In re Thompson (Sur.) 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.

See "Carriers," $ 1. A complaint by a legatee against executors 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.)| A contract for the appointment of plaintiff as 88.

defendant's sales agent, which was indefinite Action against executrix by husband for ex

as to time, held subject to termination at depenses incurred in sepulture of his wife held to fendant's election.-Outerbridge v. Campbell arise ex lege, and hence not within jurisdiction (Sun) 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 ex

In particular actions or proceedings. ecutrix held to sufficiently state her qualification 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 persons 580, tit. 1, § 1, subd. 18, expressly authorizes

See "Officers," $ 1; "Sheriffs and Constables," that court to entertain an actign 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 1.8 2. to account by the surety on the deceased admin- Referee, see "Reference," $ 2.

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and 118 New York State Reporter FELLOW SERVANTS.

FORMS OF ACTION. See “Master and Servant," $ 2.

See "Ejectment”; “Replevin"; "Trespass," $

2; "Trover and Conversion."
FILING.

FRANCHISES.
Of certificate where persons conduct business
under assumed name, see "Partnership,” 8 1. Taxation of, see "Taxation,” $ 1.
FINAL JUDGMENT.

FRAUD.
Appealability, see "Appeal," § 1

See "Fraudulent Conveyances."

Against corporation, see "Corporations," $ 4. FINDINGS.

As affecting liability to arrest, see “Arrest," S

1. On reference, see "Reference," $ 3.

8 1. Deception constituting fraud, and Review on appeal, see "Appeal," § 11

liability therefor.

One who obtains money on a promise, made FIRE DEPARTMENT.

with fraudulent intent, to deliver certain goods

belonging to his stock, and then sells his enSee “Municipal Corporations,” $ 1.

tire stock to another, is liable for the fraud.

-Bernstein v. Lester (Sup.) 496. FIRES.

$ 2. Actions.

A purchaser at foreclosure of a second mortCaused by operation of railroad, see "Rail- | gage held not entitled to recover of the holder roads," $ 3.

of the first mortgage for fraudulent representa

tions as to the amount due thereon; the facts FISH.

estopping such holder to claim more on fore

closure than was represented as due.-Inderlied Ejectment proceedings by fish commission, see

v. Honeywell (Sup.) 333. "Ejectment," $ 2.

A complaint merely alleging false representaFLOWAGE.

tions held an insufficient pleading of fraud.

Inderlied v. Honeywell (Sup.) 333. See "Waters and Water Courses," $ 1.

Judgment for plaintiff cannot be sustained,

though the evidence shows fraud of defendant; FORCIBLE DEFILEMENT. the facts alleged by the complaint not consti

tuting fraud. -Inderlied v. Honeywell (Sup.) See "Rape.”

333. FORECLOSURE.

FRAUDS, STATUTE OF.

8 1. Promises to answer for debt, deOf lien, see "Mechanics' Liens," $ 2.

fault, or miscarriage of another.

An agreement between mortgagor and mortFOREIGN CORPORATIONS. gagee that the mortgagee should pay the sur

plus arising from a sale to an attaching creditor See "Corporations," $ 6.

held not void as an agreement to answer for Sufficiency of application for order for service the debt of another.-Scherzer v. Muirhead of process on, by publication, see “Process,"

(Sup.) 159. 1.

An agreement by tenants to save from loss

of rent a third person who releases their landFOREIGN JUDGMENTS.

lord from a lease, made in consideration of

their landlord's releasing them, is not within See "Judgment," $ 6.

the statute of frauds. - Smith v. Schneider

(Sup.) 238. FOREIGN WILLS.

An oral promise by a third person to com

plete the payment for goods purchased on the Probate or record, see “Wills,” $ 3.

installment plan, in consideration of the goods being transferred to him, held not within the statute of frauds.-Berg v. Spitz (Sup.) 532.

An oral promise to pay the debt for which For overcharges by carriers, see "Carriers," $ 2. a judgment debtor is imprisoned, in consideraOf bail, see “Bail," $ 1.

tion of his release, that he may return to the service of the promisor, is not within the stat. ute of frauds.-Berg v. Spitz (Sup.) 532.

A parol promise to pay the debt of another, See "Judgment,” 8 5.

I in consideration of the cancellation thereof so

FORFEITURES.

FORMER ADJUDICATION.

ing.

far as the original debtor is concerned, is not

GAMING. within the statute of frauds.---Berg v. Spitz (Sup.) 532.

8 1. Penalties and forfeitures. $ 2. Agreements not to be performed

Laws 1895, p. 377, c. 570, $ 17, held to enwithin one year.

able a loser in a wager with another on the reAn oral agreement of employment held con

sult of a race at a race course to recover the trary to the statute of frauds, as not to be per. Moulton y. Westchester Racing Ass'n (Sup.)

| money wagered and delivered to the latter.formed within one year.-Fanger v. Caspary S74 (Sup.) 410. $ 3. Real property and estates and in

GARNISHMENT. terests therein. That an agreement to devise land is oral does See “Attachment"; "Execution." not necessarily render it void, but it may be valid from the nature of the contract or on ac

GIFTS. court of part performance.-Conlon v. Mission of the Immaculate Virgin (Sup.) 49.

Reference to determine question of alleged gift, $ 4. Requisites and sufficiency of writ- see "Reference," $ 1.

Transfer taxes, see "Taxation," $ 5. Under Laws 1863, p. 802, c. 464, the written guaranty to be responsible for goods there

$ 1. Inter vivos. after sold by plaintiff to a third person need Evidence held sufficient to show a gift of cernot express the consideration.-Finkelstein v. tain shares of stock to a daughter. Crouse 7. Kessler (Sup.) 266.

Judson (Sup.) 755. $ 5. . Pleading, evidence, trial, and re-6 2. Causa mortis. view.

A gift of funds causa mortis held valid, Where the contract alleged was not within though the owner held them subject only to his the statute of frauds, but the contract proved check, when countersigned by a surety on his on trial violated the statute, the objection might bond as administrator. - Dickinson v. Hoes be raised without pleading it.-Fanger v. Cas (Sup.) 152. pary (Sup.) 410.

A gift causa mortis of money on deposit was

perfected by delivery by the donor to the donee FRAUDULENT CONVEYANCES.

of a receipt for the money executed by the de

positary.--Dickinson y. Hoes (Sup.) 152. $ 1. Transfers and transactions invalid.

A gift causa mortis of the residue of certain Bills of sale of personal property executed by funds left after the donee should pay for the a debtor held tainted with fraud.—Cafe Union burial of the donor was valid.-Dickinson v. v. Reordan (Sup.) 994.

Hoes (Sup.) 152. $ 2. Rights and liabilities of parties and purchasers.

GRAND JURY. Where creditors, recovered property fraudulently transferred to defendant by another, de- See "Indictment and Information." fendant was entitled to a return of the consideration which it paid for the property.Varnum v. Bolton Shoe Co. (Sup.) 967.

GRANTS. $ 3. Remedies of creditors and purchas- of public lands, see "Public Lands." The weight of the testimony offered on the

GUARANTY,
issue whether an assignment of a claim under
a fire policy was void by reason of the insolven- | See “Principal and Surety."
cy of the insured held for the jury.--Voss v.
Smith (Sup.) 471.

Of bill or note, see "Bills and Notes," $ 4.
Requirements of statute of frauds, see

"Frauds, Statute of," $ 1.
FUNERAL EXPENSES.

GUARDIAN AND WARD. Allowance of claim for, see "Executors and Administrators," $ 5.

Guardianship of insane persons, see "Insane

Persons," % 1.
GAME.

Suit by guardian ad litem in forma pauperis,

see "Costs," $ 3. Ejectment proceedings by game commission, see "Ejectment," $ 2.

Belg 1. Appointment, qualification, and

ers.

tenure of guardian. Evidence in qui tam action for penalty pro- Widow will be appointed guardian of her vided by Laws 1900, p. 22, c. 20, for the illegal minor children where no sufficient reasons to possession of quail, held insufficient to show the contrary are shown.-In re Burdick (Sur.) possession.-People v. Dunston (Sup.) 257.

932.

HARMLESS ERROR.

HEARSAY EVIDENCE.

and 118 New York State Reporter § 2. Actions.

HUSBAND AND WIFE An infant held not liable for necessaries furnished her under contract with her guardian

guardian See "Divorce." and on the guardian's credit.-Murphy v. Holmes (Sup.) 806.

Admissions as evidence, see "Evidence," $ 4.

Contract for resumption of marriage relatien Evidence held to make it a question for the as affected by public policy, see "Contracts ** jury whether a contract for necessaries for an $ 1. infant was made with her guardian and on his Husband as agent for wife in exchange of propcredit.-Murphy v. Holmes (Sup.) 806.

erty, see "Brokers," $ 2.

Liability of husband on promise without conHABEAS CORPUS.

sideration to pay debts of wife, see “Con

tracts," § 1. § 1. Jurisdiction, proceedings, and re. Rights of survivor, see "Executors and Adminlief.

istrators," 4. On appeal from order dismissing writ of ha- | Sufficiency of consideration for agreement to re beas corpus, relator having been held on a sume marriage relation, see “Contracts," $ 1 charge of violating Pen. Code, $ 72, appellate

§ 1. Mutual rights, duties, and liabili, court held limited to inquiry as to whether

ties. there was any evidence to show guilt-People V. Van De Carr (Sup.) 461.

A husband, living separate from his wife, he lia ble for medical services furnished the wi. -Button v. Weaver (Sup.) 388.

In the absence of express authority to wife

to use his credit, a husband can only be held In civil actions, see “Appeal,” | 12.

liable for debts incurred by her for jewelry, upon implication of agency arising from his duty to furnish necessaries.-McBride v. Adams

(Sup.) 1060. In civil actions, see "Evidence," $ 6.

Where a married couple take boarders into

their home, and the wife takes charge of the HEIRS.

house, the profits derived from such business

belong to the husband.-Briggs v. Devoe (Sup.) See “Descent and Distribution."

1063. HIGHWAYS.

§ 2. Conveyances, contracts, and other

transactions between husband See “Bridges"; "Municipal Corporations," $

8

and wife.

c 4, 5.

Contract for resumption of marriage relation,

I and vesting of dower interest on its breach be Accidents at railroad crossings, see "Railroads," husband, held not to contravene Domestic Rela$ 3.

tion Laws, Laws 1896, p. 220, c. 272, & 21.§ 1. Regulation and use for travel.

Sommer v. Sommer (Sup.) 444. • A chauffeur held not bound to chain an auto- Wife's failure to faithfully discharge marital mobile to a post before leaving it in the street obligations held defense to her suit to enforce while delivering goods therefrom.--Berman v. contract for resumption thereof, and vesting of Schultz (Sup.) 292.

dower interest in case of breach by husband.Willful act of boys in starting an automo

Sommer v. Sommer (Sup.) 444. bile left in a street, and not the negligence of Executrix of wife held entitled to recover onethe chauffeur, held the proximate cause of an third of rental value of premises, accruing be injury to plaintiff's wagon by collision with the tween wife's death and previous breach by hus. automobile.-Berman v. Schultz (Sup.) 292. band of contract for resumption of marriage re

In an action for injuries in a collision with lations and vesting of dower interest in case an automobile, a finding that if the chauffeur

of breach.-Sommer v. Sommer (Sup.) 444. had thrown off the current and applied the Contract for resumption of marriage relation, brake, as he testified, the damage could not and vesting of dower interest in case of breach have been inflicted, held unsupported by the evi- by husband, held not to give right of action to dence.-Berman v. Schultz (Sup.) 292.

wife against husband's co-tenant.--Sommer 1.

Sommer (Sup.) 444.
HOMICIDE.

§ 3. Disabilities and privileges of cor& 1. Evidence.

erture. Evidence examined, and held to sustain a con

Married woman held not personally liable for viction of manslaughter in the second degree.

medical services rendered at her request, in abPeople v. Sharkey (Sup.) 780.

sence of special contract making her so, notwithstanding Laws 1896, p. 220, c. 272.-Rich

ards v. Young (Sup.) 265. HOTELS.

$ 4. Actions. License to sell liquors, see "Intoxicating Liq-1° The affirmative on the question of the wife's uors," $ 2.

I agency to bind the busband by a purchase of

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