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and 118 New York State Reporter

Harmless error in admission or exclusion, see "Appeal," § 12.

Objections for purpose of review, see "Appeal." Questions of fact for jury, see "Trial," § 6. Reception at trial, see "Criminal Law," § 3; "Trial," §§ 4, 8.

Review on appeal, see "Appeal," § 11. Verdict or findings contrary to evidence, see "New Trial," § 1.

As to particular facts or issues. See "Damages," § 4; "Death," § 1; "Gifts," § 1; "Payment," § 2; "Release," § 1. Assignment of mortgage, see "Mortgages," § 1. Authority of broker, see "Brokers," § 3. Conduct of jurors as affecting right to new trial, see "New Trial," § 2.

Good faith of purchaser of note, see "Bills and Notes," § 7.

Mistake in compromise agreement, see "Compro-
Imise and Settlement."

Right to share in decedent's estate, see "De-
scent and Distribution," § 2.
Undue influence, see "Wills," § 2.
In actions by or against particular classes of

parties.

See "Carriers," §§ 1, 2; "Guardian and Ward," § 2; "Husband and Wife," § 4; "Landlord and Tenant," §§ 4, 5; "Master and Servant," S$ 1, 6, 7; "Municipal Corporations," § 5; "Partnership," § 3; "Railroads," 3; "Sheriffs and Constables," § 2; "Street Railroads," § 2.

Insurance company, see "Insurance," § 9.

the court cannot take judicial notice that the street line and house line on a certain street are the same.-City of New York v. Childs (Sup.) 164.

The court will take judicial notice that methods of instruction have changed in the last 25 years, and that one who was competent to teach then would not necessarily be qualified now.-People v. Maxwell (Sup.) 947.

2. Relevancy, materiality, and competency in general.

which plaintiff claimed loss of boarders, conIn an action for damages by a nuisance, in

versations between these boarders and plaintiff held admissible as res gestæ.-Hoffman v.

Edison Electric Illuminating Co. (Sup.) 437.

Expressions of opinion by the superintendent of insurance as to the legal rights of parties, based upon an ex parte statement contained in a letter to him, are neither a judicial decision nor competent evidence in an action involving such rights.-Calandra v. Life Ass'n of America (Sup.) 498.

In an action for breach of a lessor's agreement to give possession, evidence of the rent paid by the lessee for other premises of a similar character is incompetent.-Rosenblum v. Riley (Sup.) 884.

In an action for personal injuries, evidence relating to other patients of the physician treating plaintiff and testifying for her, and as to what they did and as to what records he kept, held inadmissible.-Deutschmann v. Third Ave. R. Co. (Sup.) 887.

In particular civil actions or proceedings. See "Creditors' Suit"; "Interpleader," § 2; "Malicious Prosecution"; "Negligence," § 3; In an action against a street railway com"Reformation of Instruments," § 1; "Replev-pany for negligence, causing death, certain eviin," § 1; "Trover and Conversion"; "Work and Labor."

For breach of contract, see "Contracts," § 5; "Sales," § 7.

For breach of warranty, see "Sales," $7.
For broker's commission, see "Brokers," §§ 3, 4.
For damages caused by automobile, see "High-
ways," § 1.

For damages from nuisance, see "Nuisance," § 1.

For discharge from employment, see "Master and Servant," § 1.

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

For personal injuries, see "Carriers," § 2;
"Landlord and Tenant," § 4; "Master and
Servant," $6; "Municipal Corporations,"
5; "Railroads," § 3; "Street Railroads," § 2.
For price of goods sold, see "Sales," § 6.
For referee's fees, see "Reference," § 2.
For rent, see "Landlord and Tenant," § 5.
On insurance policy, see "Insurance," § 9.
On note, see "Bills and Notes," § 7.
To recover goods sold, see "Sales," § 6.
In criminal prosecutions.
See "Homicide," § 1; "Rape," § 1.
For offenses against game laws, see "Game."
§ 1. Judicial notice.

In an action to recover a penalty for encroaching on a street by construction of steps,

dence held inadmissible upon an issue as to whether or not defendant's car jumped the track.--Perras v. United Traction Co. (Sup.)

992.

§ 3. Best and secondary evidence.

Where, in an action for premiums advanced on insurance policies, defendant fails to produce the policies on notice, the person claiming to have delivered them may state their contents.Hess-Mott Co. v. Brown (Sup.) 168.

§ 4. Admissions.

Record held to show that plaintiff in the action at bar was the defendant in an action in another state in which garnishee process had issued against defendant at bar.-Gottlieb v. Alton Grain Co. (Sup.) 413.

In an action by a real estate agent for commissions, statements by defendant's husband held incompetent, in the absence of any proof that the husband was defendant's agent.Winans v. Demarest (Sup.) 504.

Admission of administrator held admissible against estate, though not conclusive.-Crouse v. Judson (Sup.) 755.

The statement of a motorman, after colliding with a delivery wagon, held not admissible against the railroad.-Rogers v. Interurban St. Ry. Co. (Sup.) 974.

§ 5. Declarations.

A communication from a connecting carrier
to a shipper that goods were in good condition
when delivered by it to the delivering carrier
is not evidence against the latter as to the con-
dition of the goods.-Thyll v. New York & L.
B. R. Co. (Sup.) 175.

In an action on a contract, statements and
letters from defendant to plaintiff held inad-
missible to explain defendant's breach of the
contract, because admissions in its own favor.
-Grant v. Pratt & Lambert (Sup.) 983.

Declarations of the person, to whom a note
was given, that it was given as a mere mem-
oranda and was not to be negotiated, held not
admissible against his assignee.-Mitchell v.
Baldwin (Sup.) 1043.

§ 6. Hearsay.

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$ 9. Opinion evidence.

In an action for personal injuries, held prop-
er to refuse to strike certain evidence of a
physician as too uncertain.-Moritz v. Inter-
urban St. Ry. Co. (Sup.) 162.

An expert on the value of property cannot
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-
er and who knew nothing about them, except
as he came across them in his business, held
to call for hearsay.-White Mfg. Co. v. De
La Vergne Refrigerating Mach. Co. (Sup.) 192.
§ 7. Documentary evidence.

In action for negligence in dyeing skins, ques-
tions asked defendant as to his method held not
objectionable as being immaterial.-Steinberg v.
Schleshinger (Sup.) 522.

A witness, on being shown a writing purport-
ing to be signed by the treasurer of a corpora-
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
instrument.--Coney Island Automobile Race
Co. v. Boyton (Sup.) 347.

8. Parol or extrinsic evidence affect-
ing writings.

Extrinsic evidence held admissible to render
description of premises, in lease giving lessee
option to purchase, definite.- Heyward v. Will-
marth (Sup.) 75.

On the issue whether a foreign corporation
was doing business in the state during a speci-
fied period, the conclusion of an agent of the
corporation was not evidence.-M. S. Huey Co.
v. Rothfeld (Sup.) 883.

EXAMINATION.

Of adverse party before trial, see "Discovery,"
§ 1.
Of expert witnesses, see "Evidence," $9.
Of person accused of crime, see "Criminal
Law," § 1.

Of witnesses in general, see "Witnesses," 3.

EXCEPTIONS.

Evidence of what was said between the par-
ties to a note cannot be received to contradict Necessity for purpose of review, see "Appeal.”
its terms.-Oppenheimer v. Kruckman (Sup.)
129.

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

Where a written contract required plaintiff to
furnish defendant, free of cost, certain appli-
ances, parol evidence of an oral agreement
that the appliances should be paid for was inad-
missible.-Rooney v. Thomson (Sup.) 263.

The word "plant," in a written contract, held
not ambiguous, so as to render parol evidence
admissible to explain its meaning.-Rooney v.
Thomson (Sup.) 263.

Parol evidence held admissible to explain the
uncertainty in a written contract.-Rooney v.
Thomson (Sup.) 263.

The legal effect of a written lease under seal
cannot be destroyed by testimony of an oral
agreement.-Kaven v. Chrystie (Sup.) 470.

EXCESSIVE DAMAGES.

See "Damages," § 3.

EXCHANGE OF PROPERTY.

See "Brokers," § 2.

EXCISE.

Regulation of traffic in intoxicating liquors, see
"Intoxicating Liquors."

EXECUTION.

See "Attachment"; "Judicial Sales."

1. Nature and essentials in general.
Under Code Civ. Proc. § 779, and section 14,
subd. 3. held that, on failure of clients to com-
ply with order made on substitution of attor
ney, the attorney might have an execution.-
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 (Sup.) 574.

§ 2. Supplementary proceedings.

A receiver of a debtor, in supplementary proceedings, held not liable for conversion of a liquor tax certificate, which he received and surrendered under an order of the court, without notice of plaintiff's claim of title thereto.Ernest Ochs v. Pohly (Sup.) 1.

A judgment debtor held to reside in the city of New York, within Code Civ. Proc. § 2458, relating to supplementary proceedings.-In re Rose (Sup.) 276.

Under Code Civ. Proc. § 2458, subd. 2, an affidavit for an order for examination of judgment debtor in supplementary proceedings must state his residence at the commencement of proceedings.-Lawyers' Title Ins. Co. v. Stanton (Sup.) 468.

Under Code Civ. Proc. § 2454, supplementary proceedings will be dismissed on motion of the judgment debtor, where there is nothing to collect under the judgment.-Cobb v. Edson (Sup.) 916.

Evidence reviewed, and held, that city court had jurisdiction to adjudge debtor in supplemental proceedings in contempt.-People v. McCarthy (Sup.) 1062.

Time for examining third person in supplementary proceedings held barred after 10 years. -Peck v. Disken (City Ct. N. Y.) 1094.

§ 3. Execution against the person. Female domestic servant held within Municipal Court Act, Laws 1902, p. 1569, c. 580, § 274, authorizing execution against the person in actions for wages by laborers, etc.-Greenberg v. Laeov (Sup.) 930.

EXECUTORS AND ADMINISTRATORS.

See "Descent and Distribution"; "Wills." Admissions by administrator as evidence, see "Evidence," § 4.

Necessity of making executor party to proceed ings for accounting by committee on death of insane person, see "Insane Persons," § 1. Reference to determine question of alleged gift in hands of administrator, see "Reference," § 1.

Testamentary trustees, see "Trusts."

§ 1. Administration in general.

A sole distributee of an estate against which no debts exist may appropriate it without administration.-Dickinson v. Hoes (Sup.) 152. § 2. Appointment, qualification, and

tenure.

Code Civ. Proc. § 2661, held to permit the appointment as administrator of one not a citizen of the United States, if a resident of the state.-Tanas v. Municipal Gas Co. of City of Albany (Sup.) 1053.

Revocation of letters of administration to creditor granted, and nonresident brother decedent appointed administrator.-In re Tyers' Estate (Sur.) 934.

Continuous absence of executrix during the year after her appointment held not ground for her removal.-In re Magoun (Sur.) 940.

Scandalous matter in affidavit of executrix in resistance to petition for her removal stricken out.-In re Magoun (Sur.) 940.

Appointment of administrator held properly denied to one improvident, within meaning of Code Civ. Proc. § 2661.-In re Ferguson (Sur.) 1102.

Application for appointment as administrator with will annexed by a beneficiary of a trust created under the will denied.-In re Ferguson (Sur.) 1102.

§ 3. Collection and management of estate. An administrator held not chargeable with a fund received solely by the other administrator. -In re Provost's Estate (Sup.) 29.

A condition, attached to an order adjourning the hearing of an application for instructions to executors held not error.-In re Bodkin's Estate (Sup.) 552.

The addition of a clause to an order, after its amendment, that "the order so amended remain in full force and effect," held immaterial. -In re Bodkin's Estate (Sup.) 552.

A recital that an order for instructions to executors was made after hearing attorney for petitioner, and that appellant's attorney was present and did not oppose, held to preclude appellants from attacking the order.-In re Bodkin's Estate (Sup.) 552.

Executors are not chargeable as such with a sum paid by a prospective contract purchaser of real estate for examination of the title thereto. -Carideo v. Austin (Sup.) 777.

Executors held liable as such for money paid to them by prospective purchasers under contract for sale of testator's real estate, title to which failed.-Carideo v. Austin (Sup.) 777.

A surviving executor held chargeable with any misappropriation of the investments belonging to the estate by the executor in possession. -In re Hunt (Sup.) 790.

Executor will not be allowed expense of fruitless suits.-In re Stanton (Sur.) 46.

Executor, mingling funds of estate with his own, charged 4 per cent. interest, with annual rests. In re Stanton (Sur.) 46.

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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 (Sur.) 220.

§ 5.

Allowance and payment of claims. Jistrator's bond.-In re Provost's Estate (Sup.) The Surrogate Court held to have power, 29. under Code Civ. Proc. § 2472, subd. 4, to direct payment of a sum by an administrator, where execution from the Supreme Court against him had been returned nulla bona (sections 1825, 2552, 2555).-In re Mahoney's Estate (Sup.)

329.

In a suit by a surety on a deceased administrator's bond for an accounting by the surviving administrator, held, that surety would not be 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.

Surrogate's decree on accounting of executor held to improperly conclude contestant as to partnership assets claimed to exist. In re Irvin

Under Code Civ. Proc. §§ 1822, 2743, as amended by the amendment of 1895, held, that a surrogate has jurisdiction to determine a disputed claim against a decedent's estate consent of the parties.-Clark v. Hyland's Es-(Sup.) 707. tate (Sup.) 640.

on

A husband who has necessarily paid for his wife's sepulture is entitled to reimbursement out of her estate.-Pache v. Oppenheim (Sup.) 926.

All the sureties on an administrator's bond held necessary parties to an accounting by him. -In re Sill's Estate (Sur.) 213.

Decrease in market value of decedent's estate, consisting largely of stocks and bonds, within 50 days after appointment of adminisAttorney's lien on estate in surrogate's court trator, held not chargeable to the administraheld not lost by transfer of estate to a coexecutor.-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 direc- From taxation, see "Taxation," § 5.
tion of next of kin.-In re Thompson (Sur.)
1111.

§ 7. Sales and conveyances under order
of court.

A complaint to compel executors to sell, stating no cause of action, is not saved from dismissal by an answer asking for construction of the will.-Levett v. Polhemus (Sup.) 1049.

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A complaint by a legatee against executors held not to present a case for a court of equity, the surrogate having jurisdiction on counting.-Levett v. Polhemus (Sup.) 1049. Distribution of assets of estate in kind ordered to avoid loss to next of kin.-In re Thompson (Sur.) 1111.

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Action against executrix by husband for expenses incurred in sepulture of his wife held to arise ex lege, and hence not within jurisdiction of Municipal Court, under Laws 1902, pp. 14871489, c. 580, tit. 1, § 1, subds. 1-19.-Pache v. Oppenheim (Sup.) 926.

EXPERT TESTIMONY.

In civil actions, see "Evidence," § 9.
EXPRESS COMPANIES.

See "Carriers," § 1.

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

Allegations in pleading in action against executrix held to sufficiently state her qualification and capacity.-Pache v. Oppenheim (Sup.) 926. Municipal Court Act, Laws 1902, p. 1489, c. 580, tit. 1, § 1, subd. 18, expressly authorizes that court to entertain an action against an executor.-Pache v. Oppenheim (Sup.) 926.

9. Accounting and settlement.

FEES.

In particular actions or proceedings.
See "Divorce," § 2.

Of particular classes of officers or other persons.
See "Officers," § 1; "Sheriffs and Constables,"
§ 1.

Attorney, see "Attorney and Client," § 4. Attorneys in divorce proceedings, see "Divorce," § 2.

A surviving administrator may be compelled to account by the surety on the deceased admin- | Referee, see "Reference," § 2.

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A purchaser at foreclosure of a second mort

Caused by operation of railroad, see "Rail-gage held not entitled to recover of the holder roads," § 3.

FISH.

Ejectment proceedings by fish commission, see "Ejectment," § 2.

FLOWAGE.

See "Waters and Water Courses," § 1.

FORCIBLE DEFILEMENT.

See "Rape."

FORECLOSURE.

Of lien, see "Mechanics' Liens," § 2.

FOREIGN CORPORATIONS.

See "Corporations," § 6.

Sufficiency of application for order for service of process on, by publication, see "Process," 1.

FOREIGN JUDGMENTS.

See "Judgment," § 6.

FOREIGN WILLS.

Probate or record, see "Wills," § 3.

FORFEITURES.

of the first mortgage for fraudulent representations as to the amount due thereon; the facts estopping such holder to claim more on foreclosure than was represented as due.-Inderlied v. Honeywell (Sup.) 333.

A complaint merely alleging false representations held an insufficient pleading of fraud.Inderlied v. Honeywell (Sup.) 333.

Judgment for plaintiff cannot be sustained, though the evidence shows fraud of defendant: the facts alleged by the complaint not constituting fraud.-Inderlied v. Honeywell (Sup.) 333.

FRAUDS, STATUTE OF.

§ 1. Promises to answer for debt, default, or miscarriage of another. An agreement between mortgagor and mortgagee that the mortgagee should pay the surplus arising from a sale to an attaching creditor held not void as an agreement to answer for the debt of another.-Scherzer v. Muirhead (Sup.) 159.

An agreement by tenants to save from loss of rent a third person who releases their landlord from a lease, made in consideration of their landlord's releasing them, is not within the statute of frauds. - Smith v. Schneider (Sup.) 238.

An oral promise by a third person to complete the payment for goods purchased on the 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.

FORMER ADJUDICATION.

See "Judgment," § 5.

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

A parol promise to pay the debt of another, in consideration of the cancellation thereof so

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