1186 265. Provisions of Laws 1905, p. 2027, c. $265. In proceeding under Laws 1905, p. $265. Statutory costs, under Greater New Of trusts, see Trusts, §§ 354, 371. ESTATES. Created by will, see Wills, § 601. See Curtesy; Dower; Life Estates. § 10. Merger of estates in law and in equity III. EQUITABLE ESTOPPEL. held not allowable in a proceeding under Laws By judgment, see Judgment, §§ 570-630, 707. IV. REMEDIES OF OWNERS OF § 269. Under Laws 1895, p. 2037, c. 1006, § EMPLOYÉS. See Master and Servant. Equitable estoppel, see Estoppel, §§ 58-88. See Account; Cancellation of Instruments; ESTABLISHMENT. Of boundaries, see Boundaries, $$ 33, 49. or deny particular facts, rights, To assert discharge of surety, see Principal To avoid or forfeit insurance policy, see In- To deny liability as surety, see Principal and To set up ultra vires act of insurance company. To maintain or oppose particular remedies or Collection of municipal taxes, see Municipal (A) NATURE AND ESSENTIALS IN GEN- ERAL. $ 58. A bank held not estopped by a cer (B) GROUNDS OF ESTOPPEL § 68. An attorney held estopped to claim a § 75. § 88. A bill of costs held not to create a EVICTION. and Tenant, §§ 172-178. Admissibility of evidence under pleading, see Topics, divisions, & section (§) NUMBERS in this Index, & Dec. & Amer. Digs. & Reporter Indexes agree Applicability of instructions to evidence, see Questions of fact for jury, see Trial, § 142. As to particular facts or issues. See Boundaries, §§ 33. 49; Damages, § 185; Agency, see Principal and Agent, § 23. Authority of agent, see Principal and Agent, 8 123. Authority of broker, see Brokers, § 8. Character of instrument as mortgage, see Mort- Common law marriage, see Marriage, § 50. Diligence of passenger in calling for baggage, Existence of heirs, see Descent and Distribution, Fraud in sale of realty, see Vendor and Pur- Negligence of master, see Master and Servant, Purchase in good faith, see Sales, § 244. Revocation of will, see Wills, § 290. Surrender and acceptance of lease, see Land- See Money Lent, § 7. In actions by or against particular classes of See Street Railroads, § 114. In particular civil actions or proceedings. For breach of contract, see Contracts, § 349. For compensation of broker, see Brokers, § 86. For conversion by broker, see Brokers, § 38. For injuries caused by snow and ice on sidewalk, For injuries caused by vicious dog, see Animals, For injuries from operation of street railroads, For injuries to passenger, see Carriers, § 318. For wages, see Master and Servant, § 80. On bill or note, see Bills and Notes, §§ 496, 523. III. BURDEN OF PROOF. As to particular facts or issues. Relation of master and servant, see Master and Condemnation proceedings, see For libel, see Libel and Slander, § 101. $ 90. "Burden of proof" defined.-Toube v. IV. RELEVANCY, MATERIALITY, AND (B) RES GESTÆ. § 123. A declaration by the motorman, a V. BEST AND SECONDARY EVIDENCE. $177. Books of account held not so volumi- nous as to necessitate the admission of abstracts § 179. Nonproduction by defendant on no- For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER part to prove his case, held not to authorize reception of plaintiff's summaries of the books, on his bare assertion that copies of entries he offered were correct abstracts.-Pfaelzer v. Gassner (Sup.) 15. VII. ADMISSIONS. (A) NATURE, FORM, AND INCIDENTS IN GENERAL. § 205. On an issue as to the profits of a business during a particular period, evidence of a statement of its net worth to a commercial agency held inadmissible as an admission.Pfaelzer v. Gassner (Sup.) 15. $215. A memorandum of a contract for the sale of land, made and retained by the grantor, and not signed by the purchaser, held not conclusive against the grantor, and not evidence as against his wife.-Friedman v. Ender (Sup.) 461. (C) BY GRANTORS, FORMER OWNERS, OR PRIVIES. § 236. In an action to recover a loan to a decedent, admissions of the latter held properly received as being relevant to an issue as to the ownership of the money received by him.-Russell v. Amlot (Sup.) 1080. § 317. In an action to recover a loan claimed to have been made to a decedent with money acquired from him by plaintiff shortly before by check, held, that testimony of a notary as to statements made to him when decedent instructed him to prepare the check were properly excluded as hearsay.-Russell v. Amlot (Sup.) 1080. admitted to show the effect of certain acids on § 318. A page from a scientific book on inks. an ink, held inadmissible as hearsay.-Brown v. Newell (Sup.) 965. X. DOCUMENTARY EVIDENCE. (C) PRIVATE WRITINGS AND PUBLICATIONS. § 354. Extracts from account books, made by a party, and summaries thereof, held to be in the nature of ex parte statements by him 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. § 243. In an action for negligence of an employé in dropping or throwing from a window a barrel which fell against a child standing in the street, held that an admission, if made by defendant's superintendent, that the workmen were allowed to throw barrels out to persons calling for them, was not defendant's admission.-Wallace v. John A. Casey Co. (Sup.) 394. § 243. Where plaintiff dealt with defendant's authorized agent in insuring the safe delivery of a watch which he was sending to another, the agent's statements as to the loss of the watch were improperly stricken in an action for the insurance money.-Schmerler v. Barasch (Sup.) 624. § 246. An admission by an attorney, though not made under circumstances that would make it evidence as against his client, held admissible to show that the attorney had knowledge of the fact admitted.-Beinert v. William M. Tivoli & Co. (Sup.) 4. $248. A memorandum of a contract for the sale of land, made and retained by the grantor, and not signed by the purchaser, held not conclusive against the grantor, and not evidence as against his wife.-Friedman v. Ender (Sup.) 461. (E) PROOF AND EFFECT. $265. A memorandum of a contract for the sale of land, made and retained by the grantor, and not signed by the purchaser, held not conclusive against the grantor, and not evidence as against his wife.-Friedman v. Ender (Sup.) 461. man to be a witness for himself.-Pfaeizer v. Gassner (Sup.) 15. XI. PAROL OR EXTRINSIC EVIDENCE AFFECTING WRITINGS. (A) CONTRADICTING, VARYING, OR ADD ING TO TERMS OF WRITTEN § 419. The consideration stated in a deed and the acknowledgment of its receipt is not conclusive as between the parties, and the true consideration, and the amount, if any, actually paid, may always be shown; the deed itself being merely presumptive evidence.-Friedman v. Ender (Sup.) 461. (B) INVALIDATING WRITTEN INSTRU MENT. 431. A seal attached to an instrument will not prevent the court from receiving evidence to show that no contract was in fact entered into.-Israelson v. Wollenberg (Sup.) 626. § 434. Oral fraudulent representations, made by a party to a written contract, held inadmissible to vary a contract containing provisions negativing the claim that the representations were relied on, or containing other representations on the same subject.-Kreshover v. Berger (Sup.) 20. § 434. Parol misrepresentations of a vendor held inadmissible, as varying the written conKreshover v. Berger (Sup.) 20. tract for the sale and purchase of real estate. § 434. A written contract, stipulating that no verbal agreements affecting the validity there, 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 (Sup.) 731. (C) SEPARATE OR SUBSEQUENT ORAL AGREEMENT. § 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 due under the written lease.-Ernest Tribelhorn v. Hanavan (Sup.) 632. XII. OPINION EVIDENCE. (C) COMPETENCY OF EXPERTS. 536. One who had made a special study of, and had compiled, deciphered, and published, ancient town records, was competent to testify as an expert as to allotments made of marsh lands in 1654 and subsequently.-Shinnecock Hills & Peconic Bay Realty Co. v. Aldrich (Sup.) 532. XIV. WEIGHT AND SUFFICIENCY. Agency, see Principal and Agent, § 23. Assignment of lease, see Landlord and Tenant, § 802. Authority of agent, see Principal and Agent, § 123. Authority of broker, see Brokers, § 8. Character of instrument as mortgage, see Mort- Common-law marriage, see Marriage, § 50. Fraud in sale of realty, see Vendor and Pur- Surrender of and acceptance of lease, see Landlord and Tenant, § 231. In particular civil actions or proceedings. For breach of covenant, see Covenants, § 122. For injuries from operation of street railroad, For injuries to passenger, see Carriers, § 318. For libel, see Libel and Slander, § 112. § 594. Verdict for defendant held unauthorized, where plaintiff makes out a case sufficient to warrant refusal to dismiss and defendant offers no evidence.-Lefkowitz v. City of New York (Sup.) 683. EXAMINATION. Of adverse party before trial, see Discovery, 88 36-612. § 216. Of witnesses in general, see Witnesses, § 269304. EXCEPTIONS. In deeds, see Deeds, § 140. Taking exceptions at trial, see Trial, 83. EXCHANGES. Seat in stock exchange as asset of estate of deceased member, see Executors and Administrators, § 38. EXCISE. Regulation of traffic in intoxicating liquors, see EXECUTION. See Attachment. VII. SALE. (E) PROCEEDS. $ 326. Rule for distribution of proceeds of execution sale on levy of second execution S. Wotkyns & Co. v. Dempsey-Gabriels Brick against the same property determined.-Tom Co. (Co. Ct.) 265. X. SUPPLEMENTARY PROCEEDINGS. Against foreign corporation, see Corporations, § 676. § 370. Under Code Civ. Proc. § 2454, the failure to enter an order dismissing a supplementary proceeding held a valid objection to a subsequent order for defendant's examination. -Tobias v. Walton (City Ct.) 587. § 409. Where B., holding title to the land of the judgment debtor as mortgagee, sold the same to debtor's receiver in supplementary proceedings innocent purchasers for value, the was only entitled to recover from B. the difference between his advances and interest and the purchase price.-Maples v. O'Brien (Sup.) 175. § 409. A conveyance by a judgment debtor of certain real estate in which he held an equitable interest to his receiver in supplementary proceedings held effective to convey such interest.-Maples v. O'Brien (Sup.) 175. 409. A receiver in supplementary proceedings takes only the right of possession of the debtor's realty, and not the title thereto.-Maples v. O'Brien (Sup.) 175. 8 417. Where an order in supplementary proceedings had been altered, without being sign For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER ed, by another justice, and served after the § 418. Under Code Civ. Proc. 2269, subds. more cogent than will suffice to maintain a suit (C) DISPUTED CLAIMS. § 250. Though the Surrogate's Court has no 250. Where, in answer to claim of cred- See Descent and Distribution; Wills. (A) IN GENERAL. § 87. On motion to authorize compromise of § 111. Where the judgment in an action by VII. DISTRIBUTION OF ESTATE. § 303. Where there is no evidence of the ex- § 315. Under Code Civ. Proc. § 2481. held, X. ACTIONS. Suspension of statute during infancy of claim- § 437. Code Civ. Proc. §§ 1822, 2718, consid § 456. Where the cause of action sued on by § 456. Where plaintiff, suing as administra- VI. ALLOWANCE AND PAYMENT OF Expiration of term of surrogate after decision, CLAIMS. (A) LIABILITIES OF ESTATE. powers of successor, see Judges, § 32. 473. Where to examine a testamentary § 473. Surrogate's Court held without juris- (B) PRESENTATION AND ALLOWANCE. |