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265. Provisions of Laws 1905, p. 2027, c. Of trusts, see Trusts, &$ 354, 871.
724, as supplemented by Laws 1905, p. 2051, Of will, see Wills, $ 226.
c. 725, for allowances of expenses and disburse-
ments, held to satisfy the constitutional re-

ESTATES.
quirement of just compensation, so far as the
owner's necessary expenses are concerned.-In re Created by will, see Wills, $ 601.
Board of Water Supply of City of New York Decedents' estates, see Descent and Distribo-
(Sup.) 642.

tion; Executors and Administrators.
§ 265. In proceeding under Laws 1905, p.

Estates for years, see Landlord and Tenant.
2027, c. 724, held, that the court could allow

Particular estates.
as counsel fees 5 per cent of the amount of See Curtesy; Dower; Life Estates.
the award prescribed by Laws 1905, p. 2031,
c. 725, supplementary thereto, allowing counsel 8 10. Merger of estates in law and in equity
fees not exceeding the limits prescribed by Code defined.-Citizens' Permanent Savings & Loan
Civ. Proc. § 3253.-In re Board of Water Sup- Ass'n v. Rampe (Co. Ct.) 597.
ply of City of New York (Sup.) 642.
$ 265. Statutory costs, under Greater New

ESTOPPEL.
York Charter (Laws 1901, p. 222, c. 466) & 496,
held not allowable in a proceeding under Laws By judgment, see Judgment, $8 570-630, 707.
1905, p. 2027, c. 724, to condemn land for a
water supply; the latter act being complete in

III. EQUITABLE ESTOPPEL.
itself.-In re Board of Water Supply of City of To assert or deny particular facts, rights,
New York (Sup.) 642.

claims, or liabilities.

To assert discharge of surety, see Principal
: IV. REMEDIES OF OWNERS OF
PROPERTY.

and Surety, $ 129.

To avoid or forfeit insurance policy, see In-
$ 269. Under Laws 1895, p. 2037, c. 1006, 8 surance, $ 377.
5, the object of requiring the presentation of a To deny liability as surety, see Principal and
claim for damages for the discontinuance of Surety, $ 83.
streets, held to procure the institution of pro- To set up ultra vires act of insurance company,
ceedings to ascertain the damages.-In re Wal see Insurance, $ 36.
ton Ave. (Sup.) 471.

To maintain or oppose particular remedies or
EMPLOYÉS.

defenses.

Collection of municipal taxes, see Municipal
See Master and Servant.

Corporations, $ 978.
ENTRY.

(A) NATURE AND ESSENTIALS IN GEN-

ERAL,
Re-entry by landlord, see Landlord and Ten $ 58. A bank held not estopped by a cer
ant, 88 295-305.

tificate of deposit to deny that the depositor

had no funds in the bank.--Laza rus v. Caioa
ENTRY, WRIT OF.

Bank of Brooklyn (Sup.) 710.
See Ejectment.

(B) GROUNDS OF ESTOPPEL.

8 68. An attorney held estopped to claim a
EQUITABLE ESTOPPEL.

lien on funds in his hands for services in procur

ing the appointment of administratrix.- re
See Estoppel, 88 58-88.

Mahar (Sup.) 1068.
875.

An indorsee of stock held not estop
EQUITY.

ped to sue brokers for conversion of it.-hi.

mer v. Hutton (Sup.) 127.
Equitable estoppel, see Estoppel, $8 58–88.

88. A bill of costs held not to create an
Particular subjects of equitable jurisdiction and estoppel against the party taxing it, so as to
equitable remedies.

preclude him from disputing the amount of a
See Account; Cancellation of Instruments ; stenographer's claim for_fees for taking tes-

Fraudulent Conveyances; Injunction; Ne timony on a reference.--Eckstein v. Schleimer
Exeat; Nuisance, $8 23–37; Partition, $ 61; (Sup.) 7.
Quieting Title ; Receivers ; Reformation of In-

EVICTION.
struments; Specific Performance; Trusts.
To enforce liability of surety on bond to dis- Of tenant of demised premises, see Landlord
charge mechanic's lien, see Mechanics' Liens, and Tenant, 88 172–178.
$ 228.

EVIDENCE.
ESTABLISHMENT.

See Affidavits; Depositions; Discovery; Wit-
Ol boundaries, see Boundaries, $$ 33, 49.

Admissibility of evidence under pleading, see
of railroads, see Street Railroads, 88 28-38. Pleading, $ 376.

nesses.

of ,

Applicability of instructions to evidence, see On insurance policy, see Insurance, 88 648, 663.
Trial, $ 253.

Probate proceedings, see Wills, 88 290-303.
Questions of fact for jury, see Trial, & 142. Settlement of decedent's estate, see Executors
Reception at trial, see Trial, 88 55, 83.

and Administrators, $ 506.
Verdict or findings contrary to evidence, see To enforce vendor's lien, see Vendor and Pur-
New Trial, 88 66–72.

chaser, $281.
A8 to particular facts or issues.

In criminal prosecutions.
See Boundaries, $8 33. 49; Damages, § 185;

See Criminal Law, 88 369, 511.
Dedication, § 44; Domicile, & 8; Fraud, g 58; For abandonment of child, see Parent and Child,
Negligence, Š 134; Trespass, $ 46.

8 17.
Agency, see Principal and Agent, $ 23.

Review and procedure thereon in appellate
Assignment of lease, see Landlord and Tenant,

courts,
$ 8012.
Authority of agent, see Principal and Agent, s

See Appeal, 88 997, 1009.
123.

Harmless error in rulings on, see Appeal, 88
Authority of broker, see Brokers, $ 8.

1050, 1056.
Character of instrument as mortgage, see Mort- Review of rulings on as dependent on presenta-
gages, 8 38.

tion in lower court of grounds of review, see
Common law marriage, see Marriage, $ 50.

Appeal, $ 204.
Contract, see Contracts, 8 28.
Diligence of passenger in calling for baggage,

II. PRESUMPTIONS.
see Carriers, 8 408.
Existence of heirs, see Descent and Distribution, See Domicile, $ 8.

As to particular .facts or issues.
8 71.
Fraud in sale of realty, see Vendor and Pur- Boundary, see Boundaries, $ 33.
chaser, $ 44.

Existence of heirs, see Descent and Distribu-
Negligence of master, see Master and Servant, negligence of master, see Master and Servant,

.
§ 265.
Purchase in good faith, see Sales, § 244.

$ 265.
Relation of master and servant, see Master and Revocation of will, see Wills, 8 290.

Servant, $ 330.
Revocation of will, see Wills, $ 290.

In particular civil actions or proceedings.
Surrender and acceptance of lease, see Land- See Money Lent, $ 7.
lord and Tenant, § 231.

III. BURDEN OF PROOF..
In actions by or against particular classes of
persons.

As to particular facts or issues.
See Street Railroads, s 114.

Diligence of passenger in calling for baggage,

see Carriers, $ 408.
In particular civil actions or proceedings. Relation of master and servant, see Master and
See Fraud, $ 58; Injunction, $ 128 ; Libel and

Servant, $ 330.
Slander, 88 101-112; Money Lent, § 7 ; Money
Received," 18; Negligence, g 134; Trespass, Condemnation proceedings, see Eminent Do-

In particular civil actions or proceedings.
8 46; Trover and Conversion, $ 40.
Condemnation proceedings, see Eminent Do- For injuries to servant, see Master and Servant,

main, $ 200.
main, 88 200-205.

$265.
For breach of contract, see Contracts, $349. För libel, see Libel and Slander, $ 101.
For breach of covenant, see Covenants, 8 122.

On bill or note, see Bills and Notes, $ 496.
For compensation of attorney, see Attorney and
Client, 166.

$ 90._“Burden of proof" defined.-Toube v.
For compensation of broker, see Brokers, $ 86. | Rubin-Blankfort Co. (Sup.) 673.
For compensation of physician, see Physicians
and Surgeons, $ 24.

IV. RELEVANCY, MATERIALITY, AND
For conversion by broker, see Brokers, § 38.

COMPETENCY IN GENERAL.
For failure to return bailment, see. Bailment, $
31.

(B) RES GESTÆ.
For injuries caused by snow and ice on sidewalk, $ 123.

A declaration by the motorman, a
see Municipal Corporations, & 818.

few seconds after the collision of his car with
For injuries caused by vicious dog, see Animals, a wagon, that "he bothered me all across the
$ 74.

bridge, held not admissible as res gestæ. -
For injuries from operation of street railroads, Brauer v. New York City Interborough Ry. Co.
see Street Railroads, $ 114.

(Sup.) 59.
For injuries to passenger, see Carriers, $ 318.
For injuries to servant, see Master and Servant, V. BEST AND SECONDARY EVIDENCE,

88 265-279.
For wages, see Master and Servant, $ 80.

§ 177. Books of account held not so volumi.
For wrongful discharge of servant, see Master thereof.-Pfaelzer v. Gassner (Sup.) 15.

nous as to necessitate the admission of abstracts
and Servant, 8 40.
On bill or note, see Bills and Notes, 88 496, 523. $ 179. Nonproduction by defendant on no-
On foreign judgment, see Judgment, $ 818. tice of his books, on which plaintiff relied in

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER

part to prove his case, held not to authorize

VIII. DECLARATIONS. reception of plaintiff's summaries of the books, on his bare assertion that copies of entries he' (A) NATURE, FORM, AND INCIDENTS IN offered were correct abstracts.-Pfaelzer v. Gass

GENERAL ner (Sup.) 15.

$ 271. Letters written by plaintiff, in the

nature of self-serving declarations, held inadVII. ADMISSIONS.

missible.—Walleston y. Fahnestock (Sup.) 143. (A) NATURE, FORM, AND INCIDENTS IN

IX. HEARSAY.
GENERAL.

$ 317. In an action to recover a loan claimed § 205. On an issue as to the profits of a

to have been made to a decedent with money acbusiness during a particular period, evidence of quired from him by plaintiff shortly before by a statement of its net worth to a commercial check, held, that testimony of a notary as to agency held inadmissible as an admission statements made to him when decedent instructe Pfaelzer v. Gassner (Sup.) 15.

ed him to prepare the check were properly er

cluded as hearsay.-Russell V. Amlot (Sup.) 8 215. A memorandum of a contract for the 1080. sale of land, made and retained by the grantor, and not signed by the purchaser, held not conclu- admitted to show the effect of certain acids on

§ 318. A page from a scientific book on inks, sive against the grantor, and not evidence as against his wife.-Friedman v. Ender (Sup.) Newell

' (Sup.) 965.

an ink, held inadmissible as hearsay.-Brown v. 161. (C) BY GRANTORS,' FORMER OWNERS, X. DOCUMENTARY EVIDENCE. OR PRIVIES.

(C) PRIVATE WRITINGS AND PUBLICA. $ 236. In an action to recover a loan to a

TIONS. decedent, admissions of the latter held properly § 354. Extracts from account books. made received as being relevant to an issue as to the by a party, and summaries thereof, held to ve ownership of the money received by him.-Rus- in the nature of ex parte statements by him sell v. Amlot (Sup.) 1080.

not binding on his employer, and obnoxious to

the rule against the presumption of the truth (D) BY AGENTS OR OTHER REPRE- of self-serving declarations, and forbidding a SENTATIVES.

man to be a witness for himself.-Pfaeizer v.

Gassner (Sup.) 15. § 243. In an action for negligence of an employé in dropping or throwing from a window XI. PAROL OR EXTRINSIC EVIDENCE a barrel which fell against a child standing in

AFFECTING WRITINGS. the street, held that an admission, if made by de- (A) CONTRADICTING, VARYING, OR ADDfendant's superintendent, that the workmen were

ING TO TERMS OF WRITTEN allowed to throw barrels out to persons calling

INSTRUMENT. for them, was not defendant's admission.-Wallace y. John A. Casey Co. (Sup.) 394.

8 419. The consideration stated in a derd $ 243. Where plaintiff dealt with defendant's conclusive as between the parties, and the

and the acknowledgment of its receipt is dis authorized agent in insuring the safe delivery true consideration, and the amount, if any. of a watch which he was sending to another, actually paid, may always be shown; the dead the agent's statements as to the loss of the itself being merely presumptive evidence.-Friedwatch were improperly stricken in an action for

man v. Ender (Sup.) 461. the insurance money.-Schmerler V. Barasch (Sup.) 624.

(B) INVALIDATING WRITTEN INSTRC$ 246. An admission by an attorney, though

MENT. not made under circumstances that would make § 431. A seal attached to an instrument will it evidence as against his client, held admissi- not prevent the court from receiving evidence ble to show that the attorney had knowledge to show that no contract was in fact entered of the fact admitted.-Beinert v. William M. into.--Israelson v. Wollenberg (Sup.) 626. Tivoli & Co. (Sup.) 4.

8 434. Oral fraudulent representations, made $ 248. A memorandum of a contract for the by a party to a written contract, held inadmis. sale of land, made and retained by the grantor, sible to vary a contract containing provisions and not signed by the purchaser, held not con negativing the claim that the representations clusive against the grantor, and not evidence as were relied on, or containing other representaagainst his wife.--Friedman v. Ender (Sup.) tions on the same subject.–Kreshover v. Berg 461.

er (Sup.) 20. (E) PROOF AND EFFECT.

§ 434. Parol misrepresentations of a vendor $ 265. A memorandum of a contract for the tract for the sale and purchase of real estate.

held inadmissible, as varying the written consale of land, made and retained by the grantor, and not signed by the purchaser, held not -Kreshover v. Berger (Sup.) 20. conclusive against the grantor, and not evi § 434. A written contract, stipulating that dence as against his wife.-Friedman v. Ender no verbal agreements affecting the validity there (Sup.) 461.

of will be recognized, may be impeached by parol

proof that it was procured by fraud. ---Scars- | Of person accused of crime, see Criminal Law, dale Pub. Co.-The Colonial Press V. Carter 216. (Sup.) 731.

Of witnesses in general, see Witnesses, $269

304. (C) SEPARATE OR SUBSEQUENT ORAL AGREEMENT.

EXCEPTIONS. § 442. An oral agreement by a landlord to make repairs as an inducement to the execution of a lease held admissible in an action for rent In deeds, see Deeds, & 140. due under the written lease.-Ernest Tribelhorn Taking exceptions at trial, see Trial, $ 83. v. Hanavan (Sup.) 632.

To pleading, see Pleading, $8 198–218.
XII. OPINION EVIDENCE.

EXCHANGES. (C) COMPETENCY OF EXPERTS. § 536. One who had made a special study Seat in stock exchange as asset of estate of deof, and had compiled, deciphered, and publish ceased member, see Executors and Adminised, ancient town records, was competent to trators, 38. testify as an expert as to allotments made of marsh lands in 1654 and subsequently.-Shin

EXCISE. necock Hills & Peconic Bay Realty Co. v. Aldrich (Sup.) 532.

Regulation of traffic in intoxicating liquors, see XIV. WEIGHT AND SUFFICIENCY.

Intoxicating Liquors.
A8 to particular facts or issues.
See Dedication, $ 44; Fraud, $ 58; Negligence,

EXECUTION.
$ 134.
Agency, see Principal and Agent, & 23.

See Attachment.
Assignment of lease, see Landlord and Tenant, | Exemptions, see Exemptions.

8 8012
Authority of agent, see Principal and Agent,
123.

VII. SALE.
Authority of broker, see Brokers, g 8.
Character of instrument as mortgage, see Mort-

(E) PROCEEDS. gages, § 38.

$ 326. Rule for distribution of proceeds of Common-law marriage, see Marriage, 8 50.

execution sale on levy of second execution Contract, see Contracts, $ 28. Fraud in sale of realty, see Vendor and Purs. Wotkyns & Co. v. Dempsey-Gabriels Brick

against the same property determined.-Tom chaser, § 44.

Co. (Co. Ct.) 265. Surrender of and acceptance of lease, see Landlord and Tenant, § 231.

X. SUPPLEMENTARY PROCEEDINGS. In particular civil actions or proceedings. See Injunction, & 128; Money Received, $ 18. Against foreign corporation, see Corporations, Condemnation proceedings, see Eminent Do

§ 676. main, $ 205. For breach of covenant, see Covenants, 8 122. $ 370. Under Code Civ. Proc. § 2454, the For compensation of broker, see Brokers, $ 86. failure to enter an order dismissing a suppleFor conversion by broker, see Brokers, 8 38. mentary proceeding held a valid objection to For injuries caused by vicious dog, see Animals, a subsequent order for defendant's examination. $ 74.

-Tobias v. Walton (City Ot.) 587. For injuries from operation of street railroad, $ 409. Where B., holding title to the land see Street Railroads, 8 114.

of the judgment debtor as mortgagee, sold the For injuries to passenger, see Carriers, $ 318.

to innocent purchasers for value, the For injuries to servant, see Master and Servant, debtor's receiver in supplementary proceedings $8 278, 279.

was only entitled to recover from B. the differFor libel, see Libel and Slander, $ 112.

ence between his advances and interest and the For wages, see Master and Servant, g 80.

purchase price.---Maples v. O'Brien (Sup.) 175. On bill or note, see Bills and Notes, $ 523. On insurance policy, see Insurance, g 665.

$ 409. A conveyance by a judgment debtor

of certain real estate in which he held an eq8 594. Verdict for defendant held unauthoriz- uitable interest to his receiver in supplementary ed, where plaintiff makes out a case sufficient proceedings held effective to convey such into warrant refusal to dismiss and defendant terest.-Maples v. O'Brien (Sup.) 175. offers no evidence.-Lefkowitz v. City of New York (Sup.) 683.

$ 409. A receiver in supplementary proceed

ings takes only the right of possession of the EXAMINATION.

debtor's realty, and not the title thereto.-Ma

ples v. O'Brien (Sup.) 175. Of adverse party before trial, see Discovery, 88 8 417. Where an order in supplementary pro36-6112.

ceedings had been altered, without being sign

same

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (8) NUMBER

ed, by another justice, and served after the more cogent than will suffice to maintain a guit
original time for appearance, heid, that defend against the living.-Russell y. Amlot (Sup.) 1050.
ant was not guilty of contempt in not obeying
it.-Vogel v. Nimark (Sup.). 825.

(C) DISPUTED CLAIMS.
§ 418. Under Code Civ. Proc. $ 2269, subds. $. 250. Though the Surrogate's Court has no
1, 2, and section 2273, the court, in proceed- jurisdiction to adjudicate the merits of claims
ings against a judgment debtor for refusal to presented against a decedent's estate, it has au-
appear in supplementary proceedings, was not thority to determine whether they have been
compelled to issue a commitment.--Sonn v. Ken- properly presented, allowed, or rejected.-In re
ny (Sup.) 613.

Scheetz's Estate (Sur.) 428.

$ 250. Where, in answer to claim of cred.
EXECUTORS AND ADMINISTRATORS. itor based on judgment against decedent, the

administrator sets up discharge in bankruptcy,
See Descent and Distribution; Wills.

the Surrogate's Court is without jurisdiction,

under Code Civ. Proc. $ 2722, and must dis.
Testamentary trustees, see Trusts.

miss the petition.-In re Peterson's Estate

(Sur.) 286.
II. APPOINTMENT, QUALIFICATION,
AND TENURE.

VII. DISTRIBUTION OF ESTATE.
8 31. The right of a temporary administrator

$ 303. Where there is no evidence of the ex-
to collect assets terminates on the appointment | istence of a beneficiary, her share will be paid in.
of an executor on the probate of the will.-In re

to the treasury of the state under Code Cis. Proc.
Grant (Sup.) 767.

8 2747.-In re Beaver's Estate (Sur.) 424.
§ 32. Motion to dismiss petition to revoke

§ 315. Under Code Civ. Proc. $ 2481. hold.
letters testamentary will not be dismissed on the that a consent decree cannot be reopened by a
ground that one petitioner was an infant.-In surrogate because of an error of one of the par.
re Denyse (Sur.) 1127.

ties as to the law governing distribution.-In

re Schlosser (Sur.) 794.
ILI. ASSETS, APPRAISAL, AND IN-

X. ACTIONS.
VENTORY.

Suspension of statute during infancy of claim-
§ 38. A seat in a stock exchange held a prop-

ant, see Limitation of Actions, § 72.
erty right after the death of the member, not § 437. Code Civ. Proc. 88 1822, 2718, consid-
withstanding rules of the exchange.-In re ered, and held, that there was not such an ab-
Grant (Sup.) 1152.

solute rejection of a claim against a decedent's

estate as to bring it under the operation of seen
IV. COLLECTION AND MANAGEMENT tion 1822, so as to be barred after six morts,
OF ESTATE.

if no action was commenced within that time.

-In re Scheetz's Estate (Sur.) 428.
(A) IN GENERAL.

$ 456. Where the cause of action sued on by
$ 87. On motion to authorize compromise of plaintiff's intestate, she was, on being deteated,

an administratrix accrued after the death of
claim of administratrix for wrongful death of liable for costs individually.-Lakin v. Sutton
ber decedent, evidence as to the expediency of (Sup.) 820.
the proposed settlement held necessary.-In re
Stanley (Sur.) 1126.

$ 456. Where plaintiff, suing as administra.
$ 111.. Where the judgment in an action by trix, was liable individually for costs, an onder
the surviving partners of a firm of which de declaring her liability, though proper, was not
cedent was a member made the costs payable

necessary.-Lakin v. Sutton (Sup.) 820.
out of the partnership assets left in the hands XI. ACCOUNTING AND SETTLEMENT.
of the surviving partners, held, that the pay.
ment by decedent's executors of a part of the (B) PROCEEDINGS FOR ACCOUNTING.
costs would be disallowed on a judicial settle-Act requiring administrator's sureties to be
ment of their accounts.-In re Harris (Sur.)
270.

made parties as impairing obligation of con-

tract, see Constitutional Law, $ 172.
VI. ALLOWANCE AND PAYMENT OF Expiration of term of surrogate after decision,
CLAIMS.

powers of successor, see Judges, $ 32.

§ 473. Where to examine a testamentary
(A) LIABILITIES OF ESTATE.

trustee's dealings, to determine whether he is
Equitable estoppel of attorney to claim lien on entitled to commissions, would conclude the

funds in his hands for services to administra- parties in any action in which questions cos-
trix, see Estoppel, 8 68.

nizable in equity would be presented. the par-

ties will be left to the equity court.-In re Me
(B) PRESENTATION AND ALLOWANCE. Inerney (Sur.) 1039.

§ 221. An action for money loaned a dece $ 473. Surrogate's Court held without juris-
dent must be maintained by convincing evidence, I diction to require an executor to account for

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