Telegraphs and Telephones
For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
II. REGULATION AND OPERATION. knowledge in petition for certiorari not enti-
tled to relief.-Id.
652 [New, vol. 16 Key-No. Series]
(N.Y.Sup.) Public Service Commissions
Law applies only to transportation of persons
and property.-City of Syracuse v. New York
State Rys., 763.
SUPPLEMENTARY PROCEEDINGS.
See Execution, 359-4202.
SURETYSHIP.
See Principal and Surety.
See Abatement and Revival, 54.
III. LIABILITY OF PERSONS AND PROP-
(A) Private Persons and Property in Gen-
1052 (N.Y.Sup.) Act taxing transfer of
stock from trustees of voting trust to owners
held not to violate "obligation of a contract."-
Chicago Great Western R. Co. v. State, 457.
(B) Corporations and Corporate Stock
and Property.
140 (N.Y.Sup.) Amendment to Tax Law
held applicable to life insurance companies.-
People ex rel. New York Life Ins. Co. v. Walsh,
600.
Life insurance company entitled to deduct de-
ferred dividends and refunds in computing tax.
-Id.
V. LEVY AND ASSESSMENT.
(C) Mode of Assessment in General.
348 (N.Y.Sup.) Tax commission, in fixing
mortgage tax, must determine actual or mar-
ket value of mortgaged leases.-People ex rel.
Gorham Mfg. Co. v. State Tax Commission,
241.
Weight of expert opinions as to value of
mortgaged leases for tax commission in fixing
mortgage tax.-Id.
No error in fixing value of mortgaged leases
at cost of improvements less depreciation,
though expert opinions differed.-Id.
348 (N.Y.Sup.) As respects valuation iri-
descent dreams no substitute for value of land.
-People ex rel. Empire Mortgage Co. v. Can-
tor, 646.
(A) Title and Rights of Purchaser at Tax,
732 (N.Y.Sup.) As respects pre-existing
easements, tax sales invest purchaser only
with title of owner of property sold.-Poetzsch
v. Mayer, 695.
XIII. LEGACY, INHERITANCE, AND
TRANSFER TAXES.
867(1) (N.Y.) Nonresident must have cap-
ital invested in state and do business in state
to render transfer taxable.-In re Green's Es-
tate, 231 N. Y. 237, 131 N. E. 900.
Whether corporation subjected to license tax
held to be considered in determining whether
organizer doing business within transfer tax
law. Id.
Person, organizing corporation to buy and
sell securities and transferring securities to it
on credit, held not "doing business."-Id.
Person organizing corporation to take over
mortgages held not "doing business."-Id.
Deposit of money in savings bank or trust
company not "doing business."-Id.
8762 (N.Y.Sup.) Affidavits on motion for
exemption from transfer tax are in the nature
of testimony.-In re Scully's Estate, 239.
Unverified petition for exemption from
transfer tax. stating matters on information
and belief, of no probative value.-Id.
878(2) (N.Y.Sup.) Exercise by resident of
power under nonresident's will held not taxable.
-In re Canda's Estate, 917.
900 (5) (N.Y.) Proceeding not remitted to
surrogate on reversal of order of the Appel-
late Division and affirmance of that of the
surrogate. In re Green's Estate, 231 N. Y.
237, 131 N. E. 900.
TELEGRAPHS AND TELEPHONES.
II. REGULATION AND OPERATION.
~33(1) (N.Y.Sup.) Power of Public Service
Commission to fix rates.-City of New York
v. New York Telephone Co., 701.
Public Service Commission authorized to ab-
rogate order fixing rates.-Id.
Public Service Commission may consent to
increase in rates.-Id.
54(1) (N.Y.City Ct.) Gross negligence not
subject to limited liability.-Freschen v. West-
ern Union Telegraph Co., 649.
Failure to transmit message, held gross neg-
3632 [New, vol. 18 Key-No. Series]
(N.Y.Sup.) No deduction from income|ligence.-Id.
allowed for loss on horse race gambling.-Peo-54 (4) (N.Y.City Ct.) Limitation of time for
ple ex rel. Konigswald v. Wendell, 550.
483 (N.Y.) Complaint concerning assess-
ment held sufficient where notice of assessment
rendered more particular complaint impossi-
ble. People ex rel. Long Island R. Co. v. State
Board of Tax Com'rs, 231 N. Y. 221, 131 N.
E. 896.
Company not setting out facts within its
knowledge in complaint not entitled to relief.
-Id.
493(7) (N.Y.) Petition for certiorari con-
cerning assessment held sufficient where notice
of assessment rendered more particular peti-
tion impossible.-People ex rel. Long Island R.
Co. v. State Board of Tax Com'rs, 231 N. Y.
221, 131 N. E. 896.
Company not setting out facts within its
189 N.Y.S.-70
presentation of claim not exemption from lia-
bility for gross negligence.--Freschen v. West-
ern Union Telegraph Co., 649.
54(7) (N.Y.Sup.) Party transmitting
money not bound by limitation of liability.-
Sturner v. Western Union Telegraph Co., 537.
54(7) (N.Y.City Ct.) Limitation of liability
binding on sender and addressee.-Freschen v.
Western Union Telegraph Co., 649.
Limitation of liability held not binding.-Id.
70(1) (N.Y.City Ct.) Measure of damages
for failure to transmit offer to purchase stated.
--Freschen v. Western Union Telegraph Co.,
649.
73(1) (N.Y.Sup.) Contract for transmis-
sion of money jury question.-Sturner v. West-
ern Union Telegraph Co., 537.
73(1) (N.Y.City Ct.) Acceptance of_offer
in message question of fact.-Freschen v. West-
ern Union Telegraph Co., 649.
V. ARGUMENTS AND CONDUCT OF
COUNSEL.
See Fraud, 25-31; Libel and Slander,
4-124; Malicious Prosecution, 42-69; Mu-110 (N.Y.Sup.) Counsel could not create
nicipal Corporations, 747-844; Negligence,
3-136; Trover and Conversion.
5 (N.Y.Sup.) Plaintiff must prove damages.
-Miller v. Baer, 149.
10 (N.Y.Sup.) Organizations engaged in
strikes responsible for all lawlessness avoidable
by reasonable discipline of members.-United
Traction Co. v. Droogan, 39.
prejudice against party by asking questions as
to wholly irrelevant matters.-Friedman-Wal-
lach Co. v. Rosenau Bros., 102.
127 (N.Y.Sup.) Reference by attorney to
insurance in personal injury case reversible er-
ror.-Leon v. Blaustein, 78.
VII. INSTRUCTIONS TO JURY.
(D) Applicability to Pleadings and Evi-
dence.
12 (N.Y.Sup.) One who induces another to
break contract with third person is liable to 248 (N.Y.Sup.) Instruction should apply
third person for damages sustained.-Gonzales legal principles to the facts. In re Gilbert,
v. Kentucky Derby Co., 783.
II. GOVERNMENT AND OFFICERS.
30 (N.Y.Sup.) Acts of officials outside of
powers granted not binding.-Brothers v. Town
of Leon, 590.
No powers imposed by common law.-Id.
III. PROPERTY, CONTRACTS, AND LIA-
45 (N.Y.Sup.) Not liable at common law
for negligent acts of officers.-Brothers v. Town
of Leon, 590.
251(5) (N.Y.Sup.) Instruction, in action
for failure to deliver goods sold, as to justifi-
cation for strike, which was not in issue, error.
-Cohen v. Segal, 100.
(B) Special Interrogatories and Findings.
359(1) (N.Y.) Prevailing party cannot
move to set aside finding in favor of adversary.
-Brizse v. Lisman, 231 N. Y. 205, 131 N. Ë.
891.
Exist only for general political government I. ACTS CONSTITUTING CONVERSION AND
of state, and represent its sovereign power,
not liable at common law for negligence of of-2 (N.Y.Sup.) Money subject of conversion.
ficers.-Id.
-George Haiss Mfg. Co. v. Becker, 791.
against simulation of headings of photographic See Mortgages.
news service and of subscription contracts
granted.-Elliott Service Co. v. Dispatch Photo
News Service Co., 459.
4 (N.Y.Sup.) Expulsion illegal, where laws
of union were not complied with.-Stenzel v.
Cavanaugh, 883.
Where expulsion was illegal, because rules
were not followed, there can be no rehearing,
unless waived by the accused.-Id.
Damages, such as inability of member to se-
cure work, may be recovered for wrongful ex-
pulsion. Id.
I. CREATION, EXISTENCE, AND VA-
LIDITY.
(C) Constructive Trusts.
922 (N.Y.Sup.) Where husband conveyed
property to his wife on her agreement to recon-
vey, an enforceable trust was created, notwith-
standing statute of frauds.-Tiedemann v. Tie-
demann, 931.
96 (N.Y.Sup.) Conveyance to wife on oral
agreement as to payments and as to title held
not to create resulting trust.-Ankele v. Blank-
ner, 876.
10 (N.Y.Sup.) Members of labor unions on 100 (N.Y.Sup.) Agreement between inter-
strike responsible for acts of other members.ested persons that one should bid in property
United Traction Co. v. Droogan, 39.
See Continuance; Costs; Criminal Law,
656-822; Jury; New Trial: Reference.
For trial of particular actions or proceedings,
see also the various specific topics.
For review of rulings at trial, see Appeal.
IV. RECEPTION OF EVIDENCE.
(C) Objections, Motions to Strike Out, and
Exceptions.
105(4) (N.Y.Sup.) Where letter was ad-
mitted in evidence without objection, it must
be given weight.-United Vulcanizing Co. v.
Rapid Safety Filter Co. of New York, 1.
held to imply agreement that other should not
bid.-Fletcher v. Manhattan Life Ins. Co., 458.
Party to agreement that property should be
bid in by another not required to show his
own ability to buy.-Id.
102(1)(N.Y.Sup.) Stockbrokers accepting
stock certificate as collateral held liable with
depositor in conversion as trustees ex mali-
ficio. Bailie v. Sheldon, 749.
102(1) (N.Y.Sup.) Person acting jointly
with trustees under same disability to deal with
trust property.—Skinnell v. Mahoney, 845.
II. CONSTRUCTION AND OPERATION.
(A) In General.
112 (N.Y.Sup.) Construction making deed
of trust legal adopted in case of ambiguity.-
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
Equitable Trust Co. of New York v. Miller, |
293.
(B) Estate or Interest of Trustee and of
Cestui Que Trust.
147(1) (N.Y.Sur.) Provision of separation
agreement, for payment to wife of part of in-
come directed by trust to be paid husband, not
a prohibited transfer.-In re Yard's Estate,
190.
IV. MANAGEMENT AND DISPOSAL OF
TRUST PROPERTY.
217(1) (N.Y.Sup.) Evidence held to show
trustee did not exercise proper care.-Durant
v. Crowley, 385.
231 (2) (N.Y.Sup.) Trustees selling proper-
ty to corporation organized by them accounta-
ble to estate for stock representing profits.-
Skinnell v. Mahoney, 845.
237 (N.Y.Sup.) Consent of cestuis que
trust held not to validate trustee's acts where
there were contingent remainders.-Skinnell v.
Mahoney, 845.
V. EXECUTION OF TRUST BY TRUSTEE
OR BY COURT.
II. CONSTRUCTION AND OPERATION OF
CONTRACT.
46 (N.Y.Sup.) Written provisions in con-
tract prevail over inconsistent printed provi-
sions.-Spielvogel v. Veit, 899.
IV. PERFORMANCE OF CONTRACT.
(A) Title and Estate of Vendor.
130(7) (N.Y.Sup.) Possession for more
than 30 years gave valid title.-Rossi v. Gen-
tile, 145.
130(9) (N.Y.Sup.) That walls have en-
croached on adjoining property for 50 years
held not to render title to building unmarket-
able.-Poetzsch v. Mayer, 695.
V. RIGHTS AND LIABILITIES OF PAR-
(A) As to Each Other.
203 (N.Y.Sup.) Vendee in possession must
bear loss by fire occurring between execution
of contract and performance thereof.-Boehm
v. Platt, 16.
(B) As to Third Persons in General.
214(5) (N.Y.Sup.) Assignees
273 (N.Y.Sup.) Interest on
of
municipal randum of sale not entitled to recover from
bonds maturing after life tenant's death to be assignor payment for assignment, though sell-
apportioned.-Equitable Trust Co. of Newer refused to perform.-Kleinman v. Strass-
York v. Miller, 293.
burg, 633.
VI. ACCOUNTING AND COMPENSATION OF
TRUSTEE.
298 (N.Y.Sur.) Trustee must account to
surrogate having jurisdiction over the estate.
In re Pinckney's Estate, 49.
In case of sale of executory contract for pur-
chase of land, no warranty implied that con-
tract will be performed by seller.-Id.
Assignees of contract for sale of land could
enforce it in action at law against vendor for
recovery of payment made by their assignor.
-Id.
(C) Bona Fide Purchasers.
244 (N.Y.Sup.) Defendant held not bona
fide purchaser.-Tiedemann v. Tiedemann, 931.
VI. REMEDIES OF VENDOR.
(C) Actions for Damages,
330 (N.Y.) Damage from breach of agree-
ment to assume mortgages is prima facie
amount of mortgages.-Kmetz v. De Ronde, 231
N. Y. 255, 131 N. E. 907.
14 (N.Y.Sup.) Receipt held to refer only to
liability during transportation to warehouse.-
Starr v. Beerman, 174.
Receipt given several months after trunk
had been stored did not affect contract.-Id.
WATERS AND WATER COURSES.
See Canals; Navigable Waters.
VII. CONVEYANCES AND CONTRACTS.
154(1)(N.Y.Sup.) Easement passes by
deed of dominant estate.-Greenspan v. Yaple,
115.
155 (N.Y.Sup.) Exception held to be of en-
tire pond.-Greenspan v. Yaple, 115.
A pond inside lands conveyed may be ex-
cepted, though right of way through conveyed
uplands is not reserved.-Id.
lowing an exception of a pond, held not a res-
156(4) (N.Y.Sup.) Words of a deed, fol-
ervation, but a conveyance of an easement in
the pond.-Greenspan v. Yaple, 115.
156(7) (N.Y.Sup.) Rights in water of V. PROBATE, ESTABLISHMENT, AND AN-
grantee of land to then high-water mark of
pond already raised by dam, where it was fur-
ther raised under reserved right stated.-290 (N.Y.Sup.) Failure to find will among
Greenspan v. Yaple, 115.
IX. PUBLIC WATER SUPPLY.
(A) Domestic and Municipal Purposes.
203 (6) (N.Y.Sup.) Commissioner of water
supply cannot summarily order water company
not to put increased rate into effect.-City of
New York v. Citizens' Water Supply Co., 929.
203(7) (N.Y.Sup.) Franchise rates govern
the rates which can be charged.-Waterloo Wa-
ter Co. v. Village of Waterloo, 906.
203 (12) (N.Y.Sup.) City of New York
without power to restrain increased rates of
water company.-City of New York v. Citizens'
Water Supply Co., 929.
12 (N.Y.Sup.) Licensee not required to
carry license at time of carrying concealed
weapon.-People v. Stuyvesant, 232.
See Descent and Distribution; Executors and
Administrators.
papers after death gives rise to presumption of
revocation.-Cooley v. Cooley, 577.
293 (4) (N.Y.Sup.) Evidence held insufficient
to show destruction by heir at law of will in
favor of widow.-Cooley v. Cooley, 577.
297 (3) (N.Y.Sup.) Contents not provable
by testator's declarations.-Cooley v. Cooley,
324(1) (N.Y.Sur.) Questions on contested
probate are for jury, if reasonable men might
draw different inferences. In re Burnham's
Will, 182.
330(1) (N.Y.Sup.) Definite statement of
particular issues presented is required.-In re
Gilbert, 868.
333 (N.Y.Sur.) Finding of no undue influ-
ence consistent with finding of incapacity.-In
re Burnham's Will, 182.
337 (N.Y.Sur.) On contested probate pro-
ceeding, verdict governed by rules in other
cases. In re Burnham's Will, 182.
When motions to set aside verdict granted,
stated.-Id.
Court cannot substitute opinion as to facts
for that of jury.-Id.
Probability of different result considered on
motion to set aside verdict.-Id.
VI. CONSTRUCTION.
(A) General Rules.
440 (N.Y.Sur.) Court's duty is to see tes-
tator's intention in words of will.-In re Hunt's
Will, 55.
to include all
property in residuary devise presumed.-In re
Hunt's Will, 55.
II. TESTAMENTARY CAPACITY.
50 (N.Y.Sur.) Test of testamentary capac-449 (N.Y.Sur.) Intention
ity stated. In re Burnham's Will, 182.
52(1) (N.Y.Sur.) Proponents have burden
of showing capacity.-In re Burnham's Will,
182.
52(2) (N.Y.Sur.) Burden on proponents,
when will unnatural.-In re Burnham's Will,
182.
55(1) (N.Y.Sur.) Mere scintilla insufficient
to overcome presumption of sanity.-In re
Burnham's Will, 182.
55(5) (N.Y.Sup.) Finding that testatrix
could recall natural objects of bounty against
weight of evidence.-In re Gilbert, 868.
55(5) (N.Y.Sur.) Evidence held sufficient
to support finding of testamentary incapacity.
-In re Burnham's Will, 182.
Rule of construction as to intestacy must
yield to testator's intention.-Id.
Presumption against intestacy not controlling
as to testator's intention.-Id.
Where presumption against partial intestacy
and that of disherison conflict, weaker prevails.
-Id.
450 (N.Y.Sur.) Words never to be reject-
ed, if they can be made consistent and signifi-
cant.-In re Hunt's Will, 55.
452 (N.Y.Sup.) Construction avoiding dis-
herison of children favored.-Mersereau v.
Katz, 847.
455 (N.Y.Sur.) Where intention of testator
clear, no technical rules of construction per-
mitted to alter or defeat it. In re Kelsey's
Estate, 60.
IV. REQUISITES AND VALIDITY.
(F) Mistake, Undue Influence, and Fraud. 478 (N.Y.Sur.) Devise by implication re-
156 (N.Y.Sur.) Undue influence inconsist-quires some words of gift.-In re Hunt's Will,
ent with insanity.-In re Burnham's Will, 182.
166(8) (N.Y.Sup.) Circumstances held to
show undue influence.-In re Gilbert, 868.
(G) Revocation and Revival.
168 (N.Y.Sur.) Statute as to revocation
in force at testator's death governs.-In re
Dexter's Estate, 366.
191 (N.Y.Sur.) Will revoked by statute as
to birth of issue can be admitted to probate.
-In re Dexter's Estate, 366.
(B) Designation of Devisees, and Lega-
tees and Their Respective Shares.
498 (N.Y.) The term "issue" includes de-
scendants in any degree.-In re Farmers' Loan
& Trust Co., 231 N. Y. 41, 131 N. E. 562.
Grandchildren of life tenant not entitled to
share in remainder to issue of life tenant, their
parents being living.-Id.
531 (1) (N.Y.) There is a presumption in
favor of per capita distribution.-In re Farm-
For cases in Dec. Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
ers' Loan & Trust Co., 231 N. Y. 41, 131 N.
E. 562.
Presumption in case of per capita distribu-
tion yields to evidence of opposite intent.-Id.
(C) Survivorship, Representation, and
545(4) (N.Y.Sur.) Construed to vest no
remainder in child of testatrix dying before
death of life tenant.-In re Kelsey's Estate, 60.
(D) Description of Property.
(C) Testimony of Parties or Persons In-
terested, for or against Representa-
Successors
tives, Survivors, or
Title or Interest of Persons Deceas-
ed or Incompetent.
144(4) (N.Y.Sup.) Claimant's husband
party held entitled to compensation, so that his
testimony was incompetent.-Smith v. Burhyte,
729.
159(5) (N.Y.Sur.) Party cannot testify to
giving money to person who gave it to deced-
dent.-In re Ennever, 177.
(D) Confidential Relations and Privileged
~587(1) (N.Y.Sup.) Widow held not entitled
to personal use of stock certificate in excess of
her share as residuary legatec.-Bailie v. Shel-
don, 749.
588 (N.Y.Sur.) Testator held to have died 208(1) (N.Y.Sup.) Purpose of statute pro-
intestate as to interest in brother's estate in-hibiting disclosure by physicians stated.-He-
thier v. Johns, 605.
herited from daughter.-In re Hunt's Will, 55.219(4) (N.Y.Sup.) Privilege under statute
589 (N.Y.Sup.) Will an execution of pow- forbidding disclosure by physician personal to
er unless intent not to execute appeared.-patient and may be waived by him.-Hethier v.
Intent not to execute power must appear in Johns, 605.
Power not exercised at common law unless
will expresses intention.-Id.
(F) Vested or Contingent Estates and In-
terests.
629 (N.Y.Sup.) Vesting of estates favored.
-Mersereau v. Katz, 847.
634(13) (N.Y.Sup.) Remainder after devise
of life estate to daughter held contingent.
Mersereau v. Katz, 847.
VII. RIGHTS AND LIABILITIES OF DEVI-
SEES AND LEGATEES.
219(5) (N.Y.Sup.) Calling one attending
physician not a waiver of privilege as to another
physician attending at a different time.-Hethier
v. Johns, 605.
268(1) (N.Y.Sup.) In action for breach of
a contract to bury in lots purchased from de-
(A) Nature of Title and Rights in Gen- fendant, evidence as to defendant's desire to
748 (N.Y.Sup.) Heir held entitled to re-
cover stock certificate misappropriated by ex-
ecutor.-Bailie v. Sheldon, 749.
(B) Specific, Demonstrative, and General
Devises and Bequests.
750 (N.Y.Sur.) Rule as to legacy being
deemed general yields to rule that intention
governs. In re Hunt's Will, 55.
(F) Legacies Charged on Property, Es-
tate, or Interest.
820(5) (N.Y.Sup.) Legatees held not en-
titled to lien on realty.-Clayton v. Kingston,
245.
(G) Debts of Testator and Incumbrances
on Property.
make money from selling lots held improperly
elicited on cross-examination.-Harrison v. He-
brew Community of Borough Park, 888.
WORDS AND PHRASES.
"Accidental."-Knocks v. Metal Package Cor-
poration, 231 N. Y. 78, 131 N. E. 741.
"After."-New York Trust Co. v. Portland Ry.
Co. (N. Y. Sup.) 346.
"Arising out of and in course of employment."
-Janschewsky v. E. W. Bliss Co. (N. Y.
Sup.) 154; Knocks v. Metal Package Cor-
poration, 231 N. Y. 78, 131 N. E. 741; Clark
v. Voorhees, 231 N. Y. 14, 131 N. E. 553.
"Award."-Kraemer v. Mergenthaler Linotype
Co. (N. Y. Sup.) 193; Conley v. Upson Co.
(N. Y. Sup.) 473.
"Case."--Conley v. Upson Co. (N. Y. Sup.) 473.
"Claim accrued."-Dufel v. State (N. Y. Sup.)
759.
"Classification."-Story v. Craig, 231 N. Y. 33,
131 N. E. 560.
840 (N.Y.Sup.) Devisee, on acceptance of
devise, becomes chargeable with obligations "Counterclaim."-Hume v. Woodruff (N. Y.
of lease.-Allen v. Oscar G. Murray Railroad
Employés' Ben. Fund, 201.
(H) Void, Lapsed, and Forfeited Devises
and Bequests, and Property and
Interests Undisposed of.
858(1) (N.Y.Sur.) Fund to which testa-
trix's estate entitled under will of deceased
husband passes under residuary clause of her
will.-In re Kelsey's Estate, 60.
WITNESSES.
See Depositions; Evidence.
"Debts or obligations."-City of New York v.
New York & South Brooklyn Ferry & Steam
Transp. Co., 231 N. Y. 18, 131 N. E. 554.
"Decision."-Kraemer v. Mergenthaler Lino-
type Co. (N. Y. Sup.) 193.
"Doing business."-In re Green's Estate, 231
N. Y. 237, 131 N. E. 900.
"Doing business within state."-Bogert & Hop-
per v. Wilder Mfg. Co. (N. Y. Sup.) 444.
"Employee."-Europe v. Addison Amusements,
231 N. Y. 105, 131 N. E. 750; Kahl v. City
of New York (N. Y. Sup.) 547.
"Employer."-Westby v. Curtis & Sanger (N.
Y. Sup.
|