Page images
PDF
EPUB

Digest.

“ One

[ocr errors]

drew the money upon the warrant promissory note, made by the deas the attorney of Davidson: fendants to one Ely, the plaintiff's

Held, that these facts warranted testator. The note read: a conviction of the defendant of day after date I promise to pay, obtaining money under false pre and was signed by both defendtenses. (People agt. Genet, 19 ants. Upon the trial, the defendHun, 91.)

ant, J. B. Clute, to establish the

defense of usury, called his co16. On cross-examination, leading defendant, and offered to prove

questions tending to elicit new by him the usurious agreement matter are not allowed as a matter made with the deceased, the offer of right. (Id.)

expressly stating that the evidence

was to be used solely for the ben17. As to the proper limits of a cross efit of the defendant, J. B. Clute,

examination of the accused offer and not in behalf of the witness. ing himself as a witness in his Under the plaintiff's objection, own behalf. (Id.)

the evidence was excluded as in

admissible under section 829 of 18. Probate of the second codicil of

the Code of Civil Procedure: the testator's will, by which the

Held, that the note was, in law, respondent was appointed one of

a joint and several one, and that his executors, was opposed by his

separate judgments might be renthree daughters and one other leg

dered against the two makers. atee, on the ground that he was

That as the testimony of the incompetent to execute a will at

witness was to be used solely in the time of its date, and also on

behalf of his co-defendant, and the ground of undue influence

not in his own behalf or interest, exerted by the respondent. Upon

it was not excluded by section 829 the hearing, the contestants called

of the Code of Civil Procedure, the physician who had attended

but should have been received. the deceased for eight years pre

(Ely agt. Clute, 19 Hun, 35.) vious to his decease, for the purpose of showing that he was in- 21. While a prisoner indicted for competent to make a will at the murder was at the station-house, time of executing the codicil. and after the watch of the deceased The physician having stated that had been found upon him, he was all his knowledge was derived asked by an officer where the rest from what he observed while he of the jewelry was, and replied was attending the deceased pro that he knew nothing about it. fessionally, his evidence was ex Subsequently, the question being cluded by the surrogate:

repeated, he asked, “ Will you do Held, that the evidence was not me a favor." The officer said “I prohibited by section 834 of the will if I can; I sympathize with Code of Civii Procedure, as being you, or I pity you; you are in a information acquired while at bad fix." The prisoner then asked tending the deceased profession him to send his clothes to his ally, and which was necessary to

mother and not let her know what enable him to do so. (Staunton had happened. The prisoner then, agt. Parker, 19 Hun, 55.)

in answer to a question by another

person, made a detailed statement 19. That even if the prohibition of what he had done:

therein contained were applica Held, that his confession was ble, the contestants, as the per properly admitted on the trial. sonal representatives of the de (Cox agt. People, 19 Hun, 430.) ceased, might waive it. (Id.)

22. A prisoner indicted for murder, 20. This action was brought upon a after the killing, fled from the city

Digest.

of New York, where it occurred, 25. Upon the trial of an action finally stopping at Wheeling, W. against a railroad company for an Va., where he was arrested by an injury caused to one of its emofficer of the New York police ployes, by the alleged failure of force, with the co-operation and defendant to provide a sufficient assistance of the local police, but number of employes to do the without any process, put in irons work; evidence showing the emand taken to New York; while ployment of additional servants on the cars he was asked by the thereby, after the accident, was officer if he killed his wife and held to be admissible. (Harvey said, “Yes: "

agt. N. Y. C. and H. R. R. R. Co., Held, that conceding that he was 19 Hun, 556.) illegally held in custody at the time he made the confession, that 26 Where upon the trial the plainfact did not invalidate it or render

tiff offered to prove that the it inadmissible. (Balbo agt. Peo

switchman employed at the time ple, 19 Hun, 424.)

of the accident had complained

to his superiors that the services 23. Upon the trial of an indictment required of him were too much

for conveying property with in work for one man to do, and that tent to defraud the grantor's cred he had not the requisite experiitors, the district attorney was al ence to perform them, held, error lowed to prove that the prisoner for the court to refuse to admit had been examined in supplemen the evidence. (Id.) tary proceedings, and that his sig. nature to the examination, which 27. Although, in an action to rewas produced in court, was gen

cover damages for personal in. uine. The district attorney then

juries, a married woman cannot read from the examination, and

recover on the ground of her inaasked the prisoner whether the

bility to render services which are statements so read, or those which

due or belong to her husband, yet he had made upon the trial, were

she may recover for the loss of true. The questions were allowed

such as are personal to berself. against the objection and excep

(Minick agt. "City of Troy, 19 tion of the prisoner's counsel:

Hun, 253.) Held, that the evidence was inadmissible under Code, section 292. (Loomis agt. People, 19 Hun, 28. In determining the personal loss 601.)

to herself, evidence as to who

composed her family, and as to 24. The plaintiff presented to the

what she did before the injury, defendants, as executors, a claim

and how she was affected by it, for services rendered to their tes.

and as to the pain and suffering tator, the plaintiff's father. Upon

endured, is competent. (Id.) the trial on a reference, under the statute, a sister of the plaintiff, 29. Section 248 of 2 Revised Statutes, who was also a legatee under the 270, providing that the proceedings will, and her husband, were al in any cause, had before a justice lowed, against the defendants' ob of the peace, may be proved by his jection and exception, to testify oath, does not authorize a judg. as to the employment of the plain ment recovered before him to be tiff by the testator, and as to his established by his parol testimony promise to pay her wages for her as to the proceedings had before services:

him, without the production of his Held, that the evidence was prop docket; in such case the judgment erly received. (Pursell agt. Fay, can only be proved by the produc19 Hun, 595.)

tion and verification of the docket

Digest.

an

itself. (Dory agt. City of Troy, | 35. The fact that an alderman of a 19 Hun, 223.)

city saw excavation being

made, which being left unguarded 30. In an action involving the ques caused an injury to a party falling

tion of the existence of a high into it, is not evidence per se that way, plaintiff was not allowed to the city was guilty of negligence. tesiify to declarations made to (McDermott agt. Čity of Kingston, him by his grantor to the effect 19 Hun, 198.) that the attempt to open a road had been abandoned and the com- 36. The seal of a corporation affixed missioners had refused to open it to an instrument proves itself, and further, and for that reason his is presumptive evidence that it grantor had fenced it up. (Mc was affixed by due authority. Carthy agt. Whalen, 19 Hún, 503.) (Canandarqua Academy agt. Mc

Kechnie, 19 Hun, 62.) 31. What acts accompanying threats

by a debtor to make an assign- 37. A certificate of proof or acment with preferences are evi knowledgment in due form proves dences of a fraudulent intent to itself, and no proof of its gendispose of his property. (Anthony uineness is required. (Id.) agt. Stype, 19 Hun, 265.)

38. This action was upon a promis32. Plaintiff in error was indicted sory note ; the defense was that and tried for stealing rope from a

the alleged signature of defendvessel named in the indictment. ant's intestate, as maker, was a Upon the trial a witness was al forgery. Upon the trial, a cashier lowed to testify that another rope,

of a bank, as a witness for plainfound with that charged in the in

tiff to prove the handwriting, was dictment to have been stolen, had

asked if the deceased, in his lifebeen stolen from another vessel;

time, had presented instruments no evidence was given as to the

with his signature at the bank for time this rope was stolen, or which

the purpose of having them dig. tended to show it had ever been

counted; this was objected to, the in the prisoner's possession:

objection being to that portion of Held, that the evidence was im the question calling for the purproperly admitted. (Boland agt.

pose; the objection was overruled, People. 19 Hun, 80.)

and exception taken. The witness

answered that the deceased did 33. Upon a trial of an action to re

present instruments containing his

signature to the bank: cover damages for negligent kill

Held, that as the witness simply ing, the plaintiff offered to prove answered that portion of the quesdeclarations of the deceased, as to

tion conceded to be proper, the the manner in which the injuries

exception was not available. (Barwere received, made shortly before

din agt. Stevenson, 75 N. Y., 164.) his death, and some two hours after the accident:

39. A witness, who had testified that Held, that the declarations were

he had seen deceased subscribe his not admissible as part of the res

name to various papers passing gestæ nor as declarations made in

between them, was permitted to extremis. (Waldele agt. N. Y. C.

testify as to what kind of instruand H. R. R. R. Co., 19 Hun, 69.)

ments these papers were:

Held, no error ; that while it 34. Declarations made in expecta would not be competent to go in

tion of immediate death are only to detail as to the contents of the admissible on the trial of an in papers, it was competent upon the dictment for homicide. (Id.) point of witness' knowledge of the

VOL. LVIII

73

Digest.

handwriting to show the nature of 43. As to whether where it clearly the signatures he had seen - i. e., appears, either by the avowal of that they were of an important the party offering them or othercharacter, which might call more wise, that the instruments were particular attention of the witness put in evidence simply for the to them. (Id.)

purpose of comparison, the failure

to object precludes the other par 40. T. a witness for plaintiff, testified

ty from subsequently resisting

their use for that purpose, quere. as to a conversation with deceased and the date of a transaction with

(Id.) him. A. a witness called by defendant, gave testimony showing 44. The court cannot take judicial the testimony of T. to be untrue.

notice of a custom in the city of *T. was subsequently recalled, and

New York in improving streets, was asked and permitted to answer

first to regulate and grade, and under objection and exception as

then to pave as separate and disto what he had ascertained from tinct works; if such custom exists examination of the books of the

it must be proved. (In re Walter, bank; his answer corroborated the

75 N. Y., 355.) testimony of A., showing he was mistaken in his original testimony: 45. The recitals in a deed from a Held, that the question was im

United States collector of internal proper; but the answer could not revenue are not sufficient prima have damaged defendant, and the facie to make out a right in him exception, therefore, was not good. to sell and convey. (Brown agt. (Id.)

Goodwin, 75 N. Y., 409.)

41. The note in suit was for $1,000, 46. Where in an action upon a prom

payable with interest at six per issory note indorsed by defendant cent. Plaintiff was permitted to for the accommodation of S. &H., prove, under objection and excep defendant offered to prove that a tion, statements of the deceased, sum of money paid by S. to plain. made soon after the date of the tiff without direction as to applinote, to the effect that he had bor cation, and which was applied by rowed $1,000 of plaintiff and given plaintiff upon another note made his note for it at six per cent: by S. & H., held by him, was Held, no error. (Id.)

raised by the makers upon a note

indorsed by defendant for the pur42. Where the genuineness of a sig.

pose of having the proceeds apnature is in question in an action,

plied upon the note in suit:

Held, that in the absence of experts in handwriting who have

proof, or of an offer to prove, no other knowledge of the handwriting of the person whose sig

that knowledge of this fact was

communicated to plaintiff, the nature the one in question pur. ports to be, than that derived by

evidence was properly excluded. a comparison in court of such sig.

(Harding agt. Tift, 75 N. Y., 461.) nature with other signatures of the person to instruments proved 47. As to whether a record of conand properly in evidence, are com

viction of a witness for a felony, petent as witnesses to give their

where it does not disqualify, is opinion, derived from such com

evidence in a civil action for the parison, as to the genuineness of

purpose of impeachment, quære. the disputed signature, and as to

(Sims agt. Sims, 75 N. Y., 466.) whether it appears a natural or simulated hand. (Miles agt. Loomis, 48. If competent, the record is not 75 N. Y., 287.)

conclusive as to the fact of the

Digest.

commission of the crime charged, 53. When memorandum made by but may be rebutted. (Id.)

maker of note on stub thereto,

which note is made payable to 49. Defendant having testified as a executor of deceased, and is pre

witness in his own behalf, a record sented by him as a claim against of his conviction in the State of the estate, is not conclusive eviOhio for a felony was offered by dence that note was a gift. (See plaintiff and received in evidence. Coree agt. Cornell, 75 N. Y., 91.) Defendant was thereupon asked by his counsel whether he was guilty of the offense of which he 54. Plaintiff agreed to sell, and dehad been convicted. This was

fendant to purchase, 12,000 hop objected to and excluded:

poles, at seventy dollars per thouHeld, error. (Id.)

sand. Two papers were prepared,

one written by plaintiff and signed 50. An instrument executed by plain

by defendant's agent, the other, a tiff in this form, “Received of D. printed form, filled up and signed M. Peyser five hundred dollars by plaintiff. The agreement was due on demand,” was set up as a stated substantially alike in each, counter-claim; held, that it was

with this exception; the former open to explanation as to its con

contained this clause, “ no objecsideration, and the circumstances tion to any kind of cedar;" while under which it was given ; and

the latter required “ said poles to that, evidence having been receiv

be of yellow cedar, first growth:”. ed without objection, tending to

Held, that evidence of conversashow that it was given upon pay

tions between the parties, at the ment by Peyser to plaintiff of the

time, was competent upon the sum specified, which was then due question as to which was intended from the former to the latter, and

as the contract. (Hill agt. Miller, was intended simply as a receipt,

76 N. Y., 32.) a submission of the question to the jury, and a finding to that 55. In an action upon an alleged effect were justified. (De Laval

judgment of the supreme judicial lette agt. Wendt, 75 N. Y., 579.)

court of the state of Maine, the

copy of the judgment record, of51. Upon the trial of an indictment fered in evidence by plaintiff,

for obtaining goods under false purported to be attested by the representations as to solvency, clerk under the seal of the court; heid, that schedules of his assets following the copy thus attested, and liabilities, made by the pris and attached thereto, was a copy oner in proceedings in bankrupt of an execution, attested in like cy, were competent as evidence to manner, the attestation being of show the falsity of the representa a subsequent date to that of the tions. (Abbott agt. People, 75 N.Y., record; immediately following 602.)

the last attestation, and attached

thereto, was a certificate of the 52. In equitable action by principal chief justice of the court, to the

against agent, to compel return of effect, that the one who signed as negotiable obligations, executed clerk is the clerk of the court; by the former in the hands of the “ that the foregoing signature, latter, or to recover their value, purporting to be his is genuine, the value is prima facie the amount and that the seal thereto, by him unpaid upon the instruments; this affixed, is the seal of said supreme may be met by proof of inability judicial court, and that the foreto pay, but not by proof of mar going attestation is in due form of ket value. (See West. R. R. Co. law." The copy of the record was agt. Bayne, 75 N. Y., 1.)

objected to as not properly exem

« PreviousContinue »