Courts 189 NEW YORK SUPPLEMENT have been denied, condition immaterial.-Teitler v. Ebenstein, 33. 190(9) (N.Y.Sup.) Order vacating judgment of Municipal Court reversed and judgment reinstated, in absence of showing of good cause for court's change of mind.-Wm. Kleeman & Co. v. United Gem Stores, 67. 190(9) (N.Y.Sup.) Judgment in Municipal Court including amount by inadvertence modified. Stillman v. Rees & Rees, 69. V. COURTS OF PROBATE JURISDICTION. 198 (N.Y.Sur) Surrogate has no jurisdiction, other than that conferred by the statute. -In re Pinckney's Estate, 49. 2004 (N.Y.Sur.) Surrogate has jurisdiction to order payment to beneficiary's wife of part of income of testamentary trust.-In re Yard's Estate, 190. Without prior resort to other courts, the surrogate can direct payment to wife of part of husband's income from trust.-Id. 2002 (N.Y.Sup.) Surrogate's Court held to have no power to enforce will after it was changed by codicil.-Rochester Trust & Safe Deposit Co. v. Brown, 678. VIII. CONCURRENT AND CONFLICTING JURISDICTION, AND COMITY. (A) Courts of Same State, and Transfer of Causes. CRIMINAL LAW. See Homicide; Indictment and Information; Larceny; Libel and Slander, 158; Receiving Stolen Goods. IV. JURISDICTION. 84(1) (N.Y.Sup.) Right of Supreme Court to order cause transferred from Court of General Sessions existed at common law and was not abrogated by Code.-People ex rel. Swann v. Court of General Sessions, 780. Right of Supreme Court to order transfer from Court of General Sessions cannot be abrogated by inference from statute.-Id. 101(2) (N.Y.Sup.) Supreme Court has no express statutory authority for ordering removal to it of case from Court of Sessions.People ex rel. Swann v. Court of General Ses sions, 780. 101(4) (N.Y.Sup.) Party aggrieved by removal of cause by order, instead of certiorari, may move to vacate.-People ex rel. Swann v. Court of General Sessions, 780. VIII. PRELIMINARY COMPLAINT, AFFI- 230 (N.Y.Sup.) Motion to have papers improperly taken returned to defendant proper fter hearing before magistrate.-People v. Manko, 357. X. EVIDENCE. 472(4) (N.Y.Sup.) Supreme Court has jurisdiction of action on claim against decedent's (J) Testimony of Accomplices and Codeestate.-Michaels v. Flach, 908. (B) State Courts and United States Courts. 489(4) (N.Y.Sup.) State court cannot compel an accounting depending on copyright.-De Mille Co. v. Casey, 275. COVENANTS. II. CONSTRUCTION AND OPERATION. 39 (N.Y.) Covenant against incumbrance held breached by easement granted by imperfect agreement, as to purchaser with notice.-City of New York v. New York & South Brooklyn Ferry & Steam Transp. Co., 231 N. Y. 18, 131 N. E. 554. Not restricted to incumbrances unknown to purchaser. Id. (C) Covenants as to Use of Real Property 51(2) (N.Y.Sup.) Restriction as to building line enforced, notwithstanding change in grantor's building line.-Casella v. Gallo, 531. IV. ACTIONS FOR BREACH. 119 (N.Y.) Evidence of payments to remove incumbrances made pending an action are admissible.-City of New York v. New York & South Brooklyn Ferry & Steam Transp. Co., 231 N. Y. 18, 131 N. E. 554. 127(1) (N.Y.) Purchaser may recover reasonable expenditures to remove incumbrances. -City of New York v. New York & South Brooklyn Ferry & Steam Transp. Co., 231 N. Y. 18, 131 N. E: 554. fendants. 507(1) (N.Y.Gen.Sess.) Police officers, neglecting to arrest disorderly woman on order of indicted police commissioner, held accomplices as matter of law.-People v. Porter, 664. Police officers held accomplices of police commissioner, indicted on charge of preventing officers from performing duty.-Id. Police officers, prevented by police commissioner from performing their duty by threats, held accomplices of commissioner.-Id. 507 (5) (N.Y.Sup.) Thief not accomplice of receiver of stolen goods.-People v. Kupperschmidt, 858. 511(1) (N.Y.) Rulings as to sufficiency of evidence corroborative of accomplice stated,People v. Dixon, 231 N. Y. 111, 131 N. E. 752. (M) Weight and Sufficiency. 561(3) (N.Y.) Evidence of good character, when believed by jury, may raise reasonable doubt.-People v. Trimarchi, 231 N. Y. 263, 131 N. E. 910. 562 (N.Y.) Facts and circumstances must be consistent with guilt and inconsistent with innocence.-People v. Trimarchi, 231 N. Y. 263, 131 N. E. 910. 656(4) (N.Y.) Judge's statement that he did not remember any testimony to certain fact in response to inquiry from juror held not erroneous. People v. Dixon, 231 N. Y. 111, 131 N. E. 752. 127(2) (N.Y.) Possession by another under (E) Arguments and Conduct of Counsel. easement is breach of covenant entitling pur-730(7) (N.Y.) Prosecuting attorney's erroneous statement of fact in argument to jury chaser to substantial damages.-City of New York v. New York & South Brooklyn Ferry & held not ground for reversal.-People v. Dixon, Steam Transp. Co., 231 N. Y. 18, 131 N. E. 554. | 231 N. Y. 111, 131 N. E. 752. (S) INDEX-DIGEST For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER eral. Deeds (F) Province of Court and Jury in Gen- | 40(1) (N.Y.Sup.) Plaintiff given exclusive 741(5) (N.Y.) Sufficiency of evidence cor- (G) Necessity, Requisites, and Sufficiency of Instructions. 776(5) (N.Y.) Requested instruction as to 782(9) (N.Y.) Requested instruction as to 822(16) (N.Y.) Charge given in lieu of re- 1192 (N.Y.Sup.) Questions presented CUSTOMS AND USAGES. on re- 40 (2) (N.Y.Sup.) Subcontractor, 177 (N.Y.Sup.) In action for breach of (C) Proceedings for Assessment. 17(4) (N.Y.Sup.) Conveyance in considera- (E) Validity. 70(4) (N.Y.Sup.) Withholding of informa- 70(6) (N.Y.Sup.) Conveyance to one in Relationship between Deeds 189 NEW YORK SUPPLEMENT V. ALIMONY, ALLOWANCES, AND DISPO- III. CONSTRUCTION AND OPERATION. (C) Estates and Interests Created. 136 (N.Y.Sup.) Conveyance 245(2) (N.Y.Sup.) Decree procured in Neto supposed spouses held to result in tenancy in common, vada after separation decree in New York enwife's former divorce being void.-Bell v. Lit-titled husband to modification of separation decree, relieving him from obligation to support. tle, 935. -Harris v. Harris, 215. IV. PLEADING AND EVIDENCE. 188 (N.Y.Sup.) Complaint held to state facts establishing fiduciary relationship. Kelly v. Kelly, S04. 190 (N.Y.Sup.) Grantee must rely on the consideration claimed in his answer and supported by his evidence.-Kelly v. Kelly, 804. 245(3) (N.Y.Sup.) Personal representatives could not take inconsistent position that judgment was final and also move to modify it. -Hunter v. Hunter, 831. Parties may consent to additional costs on motion to modify decree.-Id. By consent attorney's fees held taxable as 196(3) (N.Y.Sup.) Burden is on profiting costs on motion to modify divorce decree.-Id. party to show fairness of transaction with de-269 (7) (N.Y.Sup.) Husband not under obpendent weak-minded relative.-Kelly v. Kelly, ligation to pay alimony awarded wife on separation, where she violated decree.-Harris v. Harris, 215. 804. 210 (N.Y.Sup.) Evidence held not to show sufficient past support of grantor to support conveyance.-Kelly v. Kelly, 804. 211(3) (N.Y.Sup.) Evidence held to show that father fraudulently obtained deed from his daughters.-Collins v. McKenna, 433. 211(4) (N.Y.Sup.) Evidence held not to show fairness of conveyance by dependent sister.-Kelly v. Kelly, 804. Absence of grantee at time of execution does not disprove undue influence.-Id. Reading conveyance by weak-minded grantor does not establish fairness.-Id. Evidence held not to show weak-minded grantor fully understood transaction.-Id. to 211(5) (N.Y.Sup.) Evidence held not establish deed was secured by misrepresentation and threats.-Kelly v. Kelly, 804. DEPOSITIONS. 36 (N.Y.Sup.) General averment of good faith in affidavit for commission is not sufficient.-Pratt v. Lerman, 558. 69 (N.Y.Sup.) Failure of witness to read or subscribe necessitates rejection.-Anna McNally, Inc., v. Chapin, 441. 111(3) (N.Y.Sup.) Defendant's counsel not guilty of laches in failing to move to suppress incomplete deposition of plaintiff's witness.Anna McNally, Inc., v. Chapin, 441. DESCENT AND DISTRIBUTION. See Executors and Administrators; Wills. I. NATURE AND COURSE IN GENERAL. 19 (N.Y.Sup.) Widow, sued for admeasurement, could prove husband made will and its terms by common-law proof.-Cooley v. Cooley, 577. DISMISSAL AND NONSUIT. See Appeal, 805. (E) Dismissal, Trial or Hearing, and New Trial. 139 (N.Y.Sup.) Discontinuance will not be granted, where charges against wife published and not withdrawn, countercharges having been made.-Keene v. Keene, 284. Bar against wife seeking to enforce separation decree by contempt proceedings removed on voluntary return to state.-Id. 269 (10) (N.Y.Sup.) Showing that payment cannot be enforced by sequestration not sufficient for contempt proceeding.-Haas v. Haas, 494. VI. CUSTODY AND SUPPORT OF 294 (N.Y.Sup.) Judgment for maintenance of children not authorized, where action for separation is dismissed on the merits.-Haas v. Haas, 494. DOWER. I. NATURE AND REQUISITES. 6 (N.Y.Sup.) Dower rights do not arise under a marriage contracted after obtaining void foreign divorce.-Bell v. Little, 935. 7 (N.Y.Sup.) Wife may sue to establish dower in property conveyed before marriage and not possessed during marriage.-Melenky v. Melen, 798. II. INCHOATE INTEREST. (A) Rights and Remedies of Wife. 35 (N.Y.Sup.) Wife can sue to establish inchoate right during husband's life.-Melenky v. Melen, 798. Wife may sue to establish her inchoate right, and need not depend on husband's suing.-Id. (B) Bar, Release, or Forfeiture. 46(2) (N.Y.Co.Ct.) Foreclosure bars wife's claim to dower.-Albany County Savings Bank v. Bartow, 659. III. RIGHTS AND REMEDIES OF WIDOW. 78 (N.Y.Sup.) Widow, sued for admeasurement, can claim ownership by devise, though she has waived separate defenses.-Cooley v. Cooley, 577, DRAMSHOPS. See Intoxicating Liquors. DUE PROCESS OF LAW. See Constitutional Law, ~317. EASEMENTS. I. CREATION, EXISTENCE, AND TERMINATION. (N.Y.Sup.) Reservation creates incorpoActing on oral stipulation extending time to real right.-Casella v. Gallo, 531. under answer will not be permitted to prejudice de-17(4) (N.Y.Sup.) Purchaser fendant on plaintiff's motion to discontinue. has easement to use of street shown.-Shapiro -Id. v. Albany Chemical Co., 736. map INDEX-DIGEST For cases in Dec. Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER Evidence II. EXTENT OF RIGHT, USE, AND OB- I. JURISDICTION, PRINCIPLES, AND STRUCTION. 38 (N.Y.Sup.) Owner of servient estate can use land in any way consistent with easement. -Casella v. Gallo, 531. 44(2) (N.Y.Sup.) Reservation of way for vehicles and animals does not require way for vehicles larger than those then in use.-Casella v. Gallo, 531. ELECTION OF REMEDIES. 3(1) (N.Y.Sup.) Doctrine applicable only when remedies proceed on irreconcilable claims of right.-Genovese v. Horn, 719. ELECTRICITY. (N.Y.Sup.) City had right to maintain action in behalf of consumers of electricity. City of New York v. Brooklyn Edison Co., 312. Owner of all of stock of power company bound by order of Public Service Commission. -Id. Power company held estopped to make any change in rates until new schedule was duly promulgated.-Id. Attempted revision of schedule of rates held wholly unauthorized.—Id. · Complaint by city to restrain charging of illegal rates held to state cause of action.-Id. 15(1) (N.Y.) Bather going upon encroaching springboard not trespasser as respected liability for death from falling electric wires.Hynes v. New York Cent. R. Co., 231 N. Y. 229, 131 N. E. 898. 116 (N.Y.Sup.) Claim for loss of crops and for value of land appropriated held not a duplication of damages.-Dufel v. State, 759. (C) Measure and Amount. 124 (N.Y.Sup.) Measure of damages for appropriation of land for construction of dam stated.-Dufel v. State, 759. III. PROCEEDINGS TO TAKE PROPERTY Evidence of speculative and fanciful elements incompetent.-Id. 205 (N.Y.Sup.) Function of court in passing on evidence of value. In re Inwood Hill Park, in Borough of Manhattan, 642. 262(2) (N.Y.Sup.) Party cannot complain of finding of value in accordance with testimony of its own experts.-In re Inwood Hill Park, in Borough of Manhattan, 642. 262(5) (N.Y.Sup.) Incompetent evidence must have influenced decision to cause reversal. In re Inwood Hill Park, in Borough of Manhattan, 642. EQUAL PROTECTION OF THE LAWS. See Constitutional Law, 213-245. EQUITY. (A) Nature, MAXIMS. Ex Grounds, Subjects, and tent of Jurisdiction in General. 15 (N.Y.Sup.) Mere right to terminate contract does not authorize suit in equity for cancellation.-De Mille Co. v. Casey, 275. 36 (N.Y.Sup.) Having jurisdiction of parties, will restrain interference with trust estate outside its jurisdiction.-Smyrna Theatre Co. v. Missir, 4. Where equity has jurisdiction of parties, a decree relating to lands outside of the jurisdiction is binding.-Id. 39(1) (N.Y.Sup.) Will give full relief in case over which jurisdiction is acquired.-De Mille Co. v. Casey, 275. to 39 (2) (N.Y.Sup.) Equity court held have jurisdiction to determine title to stock certificate misappropriated by executrix.-Bailie v. Sheldon, 749. (C) Principles and Maxims of Equity. 66 (N.Y.Sup.) He who seeks equity must do equity.-Collins v. McKenna, 433. IV. RELEVANCY, MATERIALITY, AND COMPETENCY IN GENERAL. (A) Facts in Issue and Relevant to Issues. 110 (N.Y.Sup.) In action by buyer to recover payments made on car sold, admission of evidence indicating that seller had committed misdemeanor held inadmissible.--Gilmore See Cancellation of Instruments; Injunction; v. Butts, 712. Spe-113(10) (N.Y.Sup.) Cost of improvements admissible in determining market value of lease Evidence 189 NEW YORK SUPPLEMENT (F) Effect of Opinion Evidence. as basis for fixing mortgage tax.-People ex rel. Gorham Mfg. Co. v. State Tax Commis-571 (7) (N.Y.Sup.) Opinions of experts sion, 241. VII. ADMISSIONS. (A) Nature, Form, and Incidents in General. competent, but inconclusive, evidence of value of mortgaged leases, in determining mortgage tax. People ex rel. Gorham Mfg. Co. v. State Tax Commission, 241. XIV. WEIGHT AND SUFFICIENCY. 215(3) (N.Y.Sup.) Letter from defendant to retailer, informing of device to prevent explosions of lime cans, competent to show defendant was packer of exploded can.-Hallen-589 (N.Y.Sup.) Plaintiff's evidence should beck v. S. Wander & Sons Chemical Co., 334. be accepted, where defendant merely denied memory of agreement.-Tiedemann v. Tiedemann, 931. (B) By Parties or Others Event. Interested in 595 (N.Y.) Burden of proof not met where there are two inferences, one consistent, the other inconsistent, with liability.-Ford v. Me 222(1) (N.Y.Sup.) Admissions admissible as primary evidence.-Mindlin v. Dorfman, 265. Adoo, 231 N. Y. 155, 131 N. E. 874. contra EXCHANGE OF PROPERTY. 13(5) (N.Y.Sup.) Measure of damages for breach of contract to deliver.-Schwartz v. Goldman, 165. Purchaser, on seller's breach, entitled to recover value of property advanced on account of contract.-Id. EXECUTION. X. SUPPLEMENTARY PROCEEDINGS. 359 (N.Y.Sup.) Garnishee law constitutional.-Smith v. Endicott-Johnson Corporation, 673. 4202 [New, vol. 10 Key-No. Series] (N.Y.Sup.) In action for failure to garnishee execution, employer can raise issue of employment.-Smith v. Endicott-Johnson Corporation, 673. Employer, which retained garnishee execution claim benefit of defense of no employment.-Id. while judgment debtor in its employ, cannot becoming due after service of order.—Id. Garnishee execution became lien on wages Order and execution not invalid because requiring collection of 10 per cent., irrespective of allowance when wages found below statutory minimum.-Id. EXECUTORS AND ADMINISTRATORS. II. APPOINTMENT, QUALIFICATION, AND TENURE. 400 (3) (N.Y.Sup.) Conversations dicting subsequent written contract of sale inadmissible.--Sidney Blumenthal & Co. v. Zim-17(2) (N.Y.Sur.) Guardian of sole next of merman, 209. kin held entitled to appointment as administrator.-In re McGuire's Estate, 62. "General guardian" defined; 419(1) (N.Y.Sup.) Statement of consideration of contract may be contradicted by parol.Siegel v. Schwarzchild, 556. (C) Separate or Subsequent Oral Agree -Id. "guardian.” Guardian of estate held entitled to preference of appointment as administrator of infant's deceased mother, as against guardian of per- · son.-Id. 20 (4) (N.Y.Sup.) Citation not necessary, where all children of decedent join in petition. In re Rowe, 395. ~~26 (1) (N.Y.Sur.) Nonresident executor must give bond, though not required by will.In re Dexter's Estate, 366. III. ASSETS, APPRAISALS, AND INVEN- held not qualified to state value of claimant's 45 (N.Y.Sup.) Estate held liable for funds services.--Smith v. Burhyte, 728. deposited to its credit as having been misappropriated by trustee from another estate of which he was executor.-Whiting v. Hudson Trust Co., 745. 484 (N.Y.Sup.) Yards of cloth may be shown by weight.-Friedman-Wallach Co. v. Rosenau Bros., 102. |