4. A party introducing evidence as to facts not pleaded by his adversary
cannot object to their being considered.] A plaintiff who, upon the trial of an
action, introduces evidence establishing that he is not entitled to maintain
the action, will not, on an appeal from a judgment entered in his favor, be
permitted to urge that the defendant is not entitled to avail himself of such
defense because he neglected to plead it in his answer.

NATIONAL BROADWAY BANK v. SAMPSON.....

--

5. Facts appearing in the record on appeal in another case — when they
cannot be used in deciding a motion.] In deciding a motion made at Special
Term, the judge who presides thereat has no right to consider facts appear-
ing in the record presented to the Court of Appeals in an entirely different
litigation, where such record is not presented nor the facts set forth therein
established on the hearing of the motion.

ZELTNER. ZELTNER BREWING CO......

6. Testimony as to declarations of a decedent by a biased witness may be
disregarded.] Where upon the trial of an action the wife of the defendant,
who is evidently greatly biased in his favor, testifies to declarations made
by persons since deceased, the weight to be given to her testimony is for the
jury to determine, and they may, if they choose, reject it.

7.

VAN GAASBEEK v. STAPLES

The recording of an assignment of a mortgage is evidence of its
delivery.] The recording of an assignment of a mortgage is sufficient to
sustain a finding that the mortgage was delivered to the assignee. Id.

-

8.

A surrogate's decision that the decedent was a resident of his county
it cannot be attacked collaterally.] Where a surrogate, upon an applica-
tion to him for letters of administration, determines, upon a sufficient affi-
davit, that the decedent was a resident of the county at the time of his death,
the surrogate's jurisdiction to issue the letters cannot, in the absence of col-
lusien or fraud, be attacked in an action brought by the administratrix, on
the ground that the decedent was not a resident of the county. Id.

9. Village ordinance the record thereof, how put in evidence.] Quære,
whether the record of a village ordinance may be read in evidence from an
ordinance book into which it has been copied, unless such record is properly
certified and is accompanied by the requisite proof of publication and post-
SHAW v. N. Y. CENTRAL & H. R. R. R. Co......

ing.
10. A single objection, ruling and exception covers all like evidence.] A
single objection, ruling and exception upon a question of evidence is suf-
ficient, although not repeated, to cover all of the same class of evidence
introduced upon the trial. VOLLKOMMER v. CODY

11. - Exception to evidence going to the merits in an equity case.]
An exception to a ruling upon a question of evidence, which goes to the
merits of the case, cannot be disregarded, even though the action be one in
equity. Id.

12.
A party cannot impeach his own witness.] Upon the trial of a
judgment creditor's action, the plaintiff called certain of the defendants as
witnesses and offered in evidence their depositions taken in supplementary
proceedings. The court admitted the depositions as evidence of admissions
by the parties making them, but, in disposing of the case, treated the depo-
sitions as evidence competent to impeach the testimony given by the parties
making them after their depositions had been placed in evidence.

Held, that the depositions were not competent for the purpose for which
they were considered by the court. Id.

13. Presumption of payment — it arises when the Statute of Limitations
begins to run.] A presumption of payment only begins to arise when some
statute of limitations begins to run. ROSENSTOCK V. DESSAR...

14. Until the statute runs it is one of fact.] The presumption of pay.
ment, in all cases where the Statute of Limitations has not run, is one of
fact and not of law. Id.

15.

Payment must be pleaded.] Under all conditions, payment is an
affirmative defense which must be pleaded and proved. Id.

EVIDENCE - Continued.

PAGE.

16. Evidence as to the payment of a certificate of deposit which makes the
question one of fact.] What evidence given in an action brought December
27, 1898, against the members of a firm which failed in 1882 or 1884, to
recover upon a certificate of deposit issued by the firm to the plaintiff's
testator November 24, 1874, and which was found among the testator's
papers after his death in 1892, will support the finding of a jury that the
certificate had not been paid, and render it improper for the court to hold,
as matter of law, that the lapse of time since the issuing of the certificate
created a presumption of payment which the plaintiff had not succeeded in
rebutting, considered. Id.

Contract between an attorney and client- -proof required in support
thereof where the attorney is dead-testimony of the client as to his having
given a lien to any one upon the fund in dispute - testimony of another
attorney as to the value of services when it does not relate to professional
services on his part checks and notes given by the client to the attorney-
when presumed to be payments on account of services the face, not the
proceeds of discount of notes, so credited. BOYD. DAILY...

See ATTORNEY AND CLIENT.

Devise trust to pay rents to the testatrix's husband and daughter,
and, in case of their payment of a mortgage on the property, to allow them
to occupy it right of the trustee to testify, in an action to recover one-half
of the amount of the mortgage paid by the daughter, as to statements made
by the husband, then deceased, in reference to the payment of the mortgage.
FARRAR v. FARMERS' LOAN & TRUST Co.....

See WILL

Malicious prosecution —— arrest on a charge of stealing a commission
to take testimony -a letter of instruction to the commissioner that he
should not let the commission leave his possession is competent where the
testimony is conflicting as to whether the plaintiff grabbed, or was allowed
to take, the commission. PARR v. LODER...

See MALICIOUS PROSECUTION.

may not, put it in issue

Character of one accused of crime-he may, but the prosecution
his cross-examination should be considered only
upon the question of his credibility-a charge that Character is always in
issue when a man is upon trial for a criminal offense," is erroneous.

PEOPLE v. SLAUSON.

See CRIME.

581

478

96

166

The absence of any delivery and of continued change of possession
of personal property may be shown under a denial of ownership thereof by
a creditor of the vendor of the property-evidence requiring that this ques-
tion of delivery be submitted to the jury. SCHIDLOWER v. MCCAFFERTY.. 493
See PLEADING.

Partition-action in ejectment against the purchaser thereat - the
judgment rolls in actions unsuccessfully brought to set aside the judgment
in partition are not competent-notice to the purchaser that the title was
defective. MULLER v. NAUMANN..

See PARTITION.

Cancellation of a liquor tax certificate what constitutes a use of
property as a hotel March 23, 1896- what evidence establishes a subsequent
abandonment of the use of the premises for hotel purposes.

MATTER OF BREWSTER (HILLMAN CERT.)...

See INTOXICATING LIQUOR.

Negligence the cost of an annuity, equal to the annual earnings of

a decedent, for his life as determined by the life tables, is not a proper
measure of damages in an action to recover for his death.

MIX v. HAMBURG-AMERICAN STEAMSHIP Co...
See NEGLIGENCE.

Life insurance policy -a waiver of a condition as to the time of pay-
ment of a premium must be pleaded — judicial notice taken of the days of
the week. RYER . PRUDENTIAL INSURANCE CO..

337

235

475

7

See INSURANCE.

EVIDENCE - Continued.

PAGE.

O Condemnation of land the Special Term cannot receive affidavits as
to value when affidavits may be read-the commissioners are not con-
trolled by technical rules. MATTER OF TOWN OF GUILFORD.

207

See EMINENT DOMAIN.

Action to recover on quantum meruit for services rendered by a rela-
tive while a member of the defendant's household - a promise to pay for
them must be clearly established. PLATT v. HOLLANDS..

See CONTRACT.

Competency, as evidence, of a letter written by one signing as super-
intendent of the railroad and having its name printed at the top.
WICKHAM v. Lehigh VALLEY R. R. Co...

Negligence-an answer of a physician that headaches "might be"

231

182

See NEGLIGENCE.

the result of injuries is not competent.

HUBA v. SCHENECTADY RAILWAY Co....

199

See NEGLIGENCE.

The rule that a writing cannot be varied by parol is not applicable to
criminal cases. PEOPLE v. WALKER.
See CRIME.

556

Negligence-proof that an injury was the proximate cause of
death. KOCH v. ZIMMERMANN...

370

See NEGLIGENCE.

Documents unlawfully seized by public officers may be put in evi-

dence on a criminal trial. PEOPLE v. ĀDAMS....

390

See CRIME.

- That land is used for charitable and benevolent purposes.
See TAX.

EXECUTOR AND ADMINISTRATOR- Death of an executor pending
his accounting — where an order is made on the application of an administrator
de bonis non that the executors of the deceased executor account, the original
proceeding will not be revived.] 1. During the pendency of a proceeding for
the settlement of an executor's account the executor died. An administrator
de bonis non of the testator's estate was then appointed, and on his applica-
tion, upon notice to all the parties interested in the estate, the surrogate made
an order directing the executors of the deceased executor to file a new
account. The question whether the former accounting could or should be
revived was not raised on the hearing of the motion.

Subsequently the executors of the deceased executor obtained, upon notice
to the interested parties, an order reviving the former accounting.
Held, that the latter order should be reversed;

That as the question whether the former accounting should be revived
could have been raised, litigated and determined upon the application to
require the filing of a new account, the order directing the filing of the
new account, if not strictly res adjudicata, should be treated as so far res
adjudicata that the court would not entertain the subsequent application
to revive the former proceeding for an accounting, instituted by the deceased
executor. MATTER OF TREDWELL......

.... 570

EXECUTOR AND ADMINISTRATOR- Continued.

PAGE.

2. Res adjudicata-principle of, how far applied in the case of an
order.] Semble, that, while the doctrine of res adjudicata does not apply
as strictly to orders as to judgments, orders which settle the rights of
the parties with respect to the subject-matter, and which decisively state
the course of procedure to be followed, are usually regarded as conclu-
sive, and will be disturbed only upon new facts or matters outside of the
scope of the issue presented and litigated or which might have been pre-
sented and litigated, and where it appears that some particular party has been
prejudiced. Id.

Testimony as to transactions with a decedent-how far the giving of
testimony by the executrix qualifies a claimant to testify in respect thereto —
her statement on cross-examination not considered. MOTZ v. Motz..

See EVIDENCE.

A creditor of a decedent's estate who has not presented his claim
within the time prescribed cannot recover costs or disbursements.
NICHOLS v. MOLOUGHNEY.

See COSTS.

1

...

271

A surrogate's decision that the decedent was a resident of his county
- it cannot be attacked collaterally. VAN GAASBEEK v. STAPLES...
See EVIDENCE.

EXEMPTION - From taxation.

See TAX.

EXTRA ALLOWANCE:

See COSTS.

EXTRA WORK- Not covered by contract.

See CONTRACT.

FACTORY - Fires escapes on.

See MUNICIPAL CORPORATION.

FALSE IMPRISONMENT:

FEES

-

See MALICIOUS PROSECUTION.

Principal and agent—when an agent earns his commission although
the contract is not in writing and not, therefore, enforcible against the purchaser.
See VEEDER v. SEATON

FENCES-Advertisement on — the Legislature cannot authorize a municipal
ordinance prohibiting advertisements on fences.

See PEOPLE v. GREEN

FIRE DEPARTMENT - In cities.
See MUNICIPAL CORPORATION.

FIRE ESCAPE - On factories.
See MUNICIPAL CORPORATION.

FIRM:

See PARTNERSHIP.

-

FISHERIES, GAME AND FOREST LAW - Private park-what must
be done to create one- -porter of the Legislature over fishing in non-navigable
streams its right to make hunting and fishing in private parks a misdemeanor
and impose exemplary damages-effect of the stocking of such streams by the
State as regards the right of the public to fish therein consent of the owners
necessary.] 1. The State of New York, through the Legislature thereof, may
exercise the same power which, previous to the Revolution, could have been
exercised by the King of Great Britain alone or by him in conjunction with
Parliament, subject only to the restrictions which have been imposed by the
New York State Constitution and the United States Constitution.

The proprietors of the soil through which non-navigable streams flow
have, independent of statute, the exclusive right of fishing therein.

Section 212 of the Fisheries, Game and Forest Law (Laws of 1892, chap. 488,
as amd. by Laws of 1896, chap. 319) provides: "A person owning or having the

196

400

FISHERIES, GAME AND FOREST LAW - Continued.

PAGE.

exclusive right to shoot, hunt or fish on lands, or lands and water, desiring
to devote such lands or lands and water to the propagation or protection of
fish, birds or game shall publish in a newspaper, printed in the county within
which such land or lands and water are situate, a notice, once a week, for a
term not less than four weeks in the county where the lands so described are
situated, substantially describing the same and containing a clause declaring
that such land or lands and water will be used as a private park for the pur-
pose of propagating and protecting fish, birds and game. Provided, however,
that all waters heretofore stocked by the State or which may hereafter be
stocked by the State from any of the hatcheries, hatching stations, or by
fish furnished at the expense of the State, shall be and remain open to the
public to fish therein the same as though the private park law had never
existed. But nothing herein contained shall be construed as affecting any
rights now existing of persons owning lands or holding leases of private
grounds, waters or parks prior to the passage of this act."

Held, that the stocking by the State of streams and waters, the beds of
which and the adjacent lands are owned by an individual or corporation,
does not confer upon the public the right to fish therein as against one who
has complied with the statute in establishing a private park unless such
stocking was done with the consent of the owner or of one having a right
of fishery in the stream;

That, even if the stocking was done with the consent of such parties,
only the particular stream, lake or pond thus stocked, and not the streams to
which it may be tributary, is thus made public;

That the stocking of a stream by the State and the upper or lower
riparian owners does not have the effect of opening to the public that
part of the stream situated on lands of an owner who has not consented to
such dedication;

That, in order to constitute a private park within the meaning of the sec-
tion, it is not necessary to prove that fish and game are actually bred and
propagated therein; it is sufficient to show that they are afforded therein a
degree of protection which allows natural propagation;

That it was competent for the Legislature, by section 215 of the Fisheries,
Game and Forest Law, as revised by section 203 of the Forest, Fish and
Game Law, to make fishing and hunting upon private parks, in violation
of the statute, a misdemeanor, and to allow a recovery of exemplary damages
therefor. RoCKEFELLER V. LAMORA.......

2.

- Limitation on the right of the State to confer special fishing privileges
in public waters.] Semble, that although the State of New York has power
to regulate the right of fishing in the public waters of the State, a grant by
it to any individual or association of the exclusive right to fish in any of
such waters would be in the nature of an exclusive privilege or fran-
chise and would, therefore, be prohibited by section 18 of article 3 of the
Constitution. Id.

FLOODING OF LAND By a change in the course of surface water.

See RIPARIAN OWNER.

FOOD - Pleading—action to recover a penalty, for selling impure milk,
under the Agricultural Law - when a single cause of action only is alleged,
authorizing the recovery of but one penalty. PEOPLE v. BUELL....

See PLEADING.

FORECLOSURE - Of lien.

See LIEN.

Of mortgage.

See MORTGAGE.

FOREIGN LAW:

-

See CONFLICT OF LAW.

FOREIGN STATUTE:

See CONFLICT OF LAW.

FRANCHISE TAX:

See TAX.

254

141