§§ 33-37.

Costs.

L. 1920, ch. 922.

thereon upon the application of the attorney-general at any time during the then current term, and brought on for hearing as a preferred cause upon a notice of fourteen days.

Source.-Code Civ. Pro., § 278, without change.

§ 33. Taxation of costs, fees and disbursements.-Costs, witnesses' fees and disbursements shall not be taxed, nor shall counsel or attorneys' fees be allowed by the court to any party.

Source.-Code Civ. Pro., § 274, first sentence.

Constitutionality.—Brainerd v. State of New York (1911), 74 Misc. 100, 131 N. Y. Supp. 221. Constitutionality of provisions denying costs. Taggarts Paper Co. v. State (1919), 187 App. Div. 843, 176 N. Y. Supp. 97.

§ 34. Allowance for expense of searches in certain cases.-The court of claims, whenever the appraised value of the premises appropriated shall be less than two hundred dollars, shall in their award make a reasonable allowance for the expense of procuring the abstract of title and certificate of search as to incumbrances, which the statutes require shall be furnished the comptroller before payment of any damages which may be awarded for the permanent appropriation of land or water.

Source.-Code Civ. Pro., 274, last sentence.

Abstract of title.-As to when filing unnecessary, see People ex rel. Palmer v. Travis (1918), 223 N. Y. 150, 119 N. E 437, revg. 180 App. Div. 25, 167 N. Y. Supp. 467.

§ 35. Expense of procuring testimony on commission.-When testimony is taken on commission at the instance of the claimant, the expense thereof including the fees of the commissioner, shall be paid by the claimant; and when taken at the instance of the state, such fees and all expenses incurred by the attorney-general shall be paid out of the contingent fund of the court.

Source.-Code Civ. Pro., § 272, without change.

ARTICLE 3.

LAWS REPEALED; WHEN TO TAKE EFFECT.

Section 36. Laws repealed.

37.

When to take effect.

§ 36. Laws repealed.-Sections two hundred and sixty-three to two hundred and sixty-five, both inclusive, section two hundred and sixty-five-a, sections two hundred and sixty-six to two hundred and sixty-eight, both inclusive, section two hundred and sixty-eight-a, sections two hundred and sixty-nine to two hundred and eighty-four, both inclusive, and all acts amendatory thereof, are hereby repealed.

Source.-New.

37. When to take effect.-This act shall take effect April fifteenth, nineteen hundred and twenty-one.

Source.-New.

Sale of adulterated; Agricultural L., § 32. Regulation of plant or place where bought or received; Agricultural L., § 33. Fat tests of samples; Id., § 35-a.

DAIRYMEN.

Associations exempted from anti-monopoly law; General Business L., § 340.

DAYLIGHT SAVING.

General Construction L., § 52.

DEAF AND DUMB.

Maintenance and education; Education L., §§ 979, 980.

DEBTOR AND CREDITOR LAW.

(L. 1909, ch. 17.)

§ 3. Requisites of general assignment.

Statutory provisions must be complied with in order to make a valid assignment for the benefit of creditors. In re Colwell Lead Co. (1917), 241 Fed. 922.

Failure to obtain the written consent of the assignee renders the instrument void ab initio. In re Colwell Lead Co. (1917), 241 Fed. 922.

§ 11. Proceedings in case of death of assignee.

When widow and executrix of will of deceased assignee not entitled to appointment as substituted assignee.-The widow and executrix of the will of a deceased assignee for the benefit of creditors should not be appointed as substituted assignee in the place of her husband over the objection of creditors who claim that the deceased assignee was dilatory in the performance of his trust, failed to prosecute claims with diligence, made improper payments to counsel, and that his account is bound to be surcharged in substantial amounts. But if an accounting in the state and final settlement were a mere matter of formal procedure and no question were raised as to the due and proper administration of the estate in the hands of the original assignee for the purpose of curtailing expense or bestowing upon the widow of the assignee the commissions due upon en accounting and to facilitate the formal discharge of the assignee of the insolvent estate, it would be entirely proper to appoint the executrix of the will of the deceased assignee as substituted assignee. Matter of Reilly (1918), 185 App. Div. 581, 173 N. Y. Supp. 248.

§ 13. Debts which may be proved against the estate.

Partially secured claim.-An otherwise provable claim of a partially secured creditor shall be allowed only for the difference between the amount owing at the date of the assignment and the value of the security held by claimant for such debt or claim, dividends being computed only upon such difference. Matter

of Vietor (1918), 224 N. Y. 707, 121 N. E. 896, affg. 183 App. Div. 883, 169 N. Y. Supp. 1118.

Failure to present claim in accordance with notice.-Subdivision 7 of this section, as amended by L. 1914, ch. 360, limits the power of the court to exonerate a creditor from the consequences of his failure to present his claim in accordance with such notice, to a period of one year after the filing of the general assignment, and a claim not filed until after the expiration of a full year is lost. The court, however, has the power and it is also its duty to treat formal verified proofs of claim filed by creditors after the expiration of the prescribed time limit as amendments of unverified proofs of claim previously filed. Matter of Vietor (1917), 101 Misc. 308, 166 N. Y. Supp. 1012.

Time of filing claim.-Where a general assignment for the benefit of creditors was filed in the proper county clerk's office on November 11, 1914, at 1:28 P. M. the filing of a creditor's claim with the attorneys for the assignee in the forenoon of November 11, 1915, is timely and the claim will be allowed. Matter of Vietor (1917), 101 Misc. 308, 166 N. Y. Supp. 1012.

Allowance to secured creditors.-Under subdivision 8 of this section, as amended by L. 1914, ch. 360, giving the court power to allow secured creditors "such sum only as to the court seems to be owing over and above the value of their securities," a creditor bank which since the making of a general assignment for the benefit of creditors has realized on collateral security held by it will be allowed a dividend only upon the balance of its claim. Matter of Vietor (1917), 101 Misc. 308, 166 N. Y. Supp. 1012.

Power to award costs.-This section does not confer power upon the court to award costs and an allowance to a creditor upon the accounting of an assignee for the benefit of creditors, payable out of the estate. But sections 20 and 21 do confer such power. Matter of Mayer (1919), 108 Misc. 662, 178 N. Y. Supp. 86.

§ 17. Invalid claims.

Right of assignee to attack validity of mortgage.-While a creditor who has not obtained a judgment may not be able to assert the invalidity of a mortgage an assignee for the benefit of creditors can now do so under the provisions of this section. Stich v. Pirkl (1917), 100 Misc. 594, 166 N. Y. Supp. 440.

§ 20. General powers of court.

Power to award costs and counsel fee.-Where upon the accounting of an assignee for the benefit of creditors, it appears that the efforts of one creditor have resulted in increasing the fund to be divided among all the creditors, the court under sections 20 and 21 of the Debtor and Creditor Law may grant to said creditor costs as in an action and a counsel fee unrestricted in amount, all payable out of the estate. Matter of Mayer (1919), 108 Misc. 662, 178 N. Y. Supp. 86.

§ 150. Discharge of bankrupt from judgment.

Application.-If, after bankruptcy proceedings are ended, a creditor sues the bankrupt on a claim which has been discharged, he may appear and plead and prove his discharge, and it will be a complete defense. But if he does not appear, but allows judgment by default, the court in bankruptcy is powerless to grant any relief. The remedy of the bankrupt, if any, is under this section of the Debtor and Creditor Law. Matter of Boardway (1918), 248 Fed. 364.

A bankrupt is entitled to an order discharging and canceling a judgment of record

in an action on a dischargeable debt, although said action was not commenced and said judgment was not entered until after the discharge in bankruptcy. Ru keyser v. Tostevin (1919), 188 App. Div. 629, 177 N. Y. Supp. 291.

When a consenting judgment creditor under the terms of a composition agreement in bankruptcy, duly confirmed, receives a certain proportion of its claim in cash and the balance in notes, only one of which has been paid, an order denying defendant's motion made under this section of the Debtor and Creditor Law, to cancel and discharge of record the judgment, will be reversed and the motion granted. American Can Co. v. Schenkel (1920), 110 Misc. 345, 180 N. Y. Supp. 102. Section cited.-Friedman v. Gibbons (1917), 101 Misc. 356, 361, 167 N. Y. Supp. 685; Brenen v. Dahlstrom Metallic Door Co. (1919), 189 App. Div. 685, 178 N. Y. Supp. 846.

VOL. X-23

Will defined.-Matter of Johnson (1918), 105 Misc. 451, 174 N. Y. Supp. 493.

§ 10. Who may devise.

Trial of issues as to testamentary capacity, etc.; evidence. If the provisions of this section are to have any substantial value, it is important that the issues should be tried patiently, intelligently and honestly, whenever the validity of a testamentary instrument is brought in question. Matter of Brand (1918), 185 App. Div. 134, 173 N. Y. Supp. 169.

Where the evidence tending to show that a testatrix of advanced age was incompetent is very weak, no substantial error in the charge or in the reception of evidence may be disregarded. Matter of Barney (1919), 185 App. Div. 782, 174 N. Y. Supp. 242.

In a proceeding for the probate of a will in which the issue is presented as to whether or not the testatrix was of sound mind and disposing memory at the time she executed the instrument, if there be more than a mere scintilla of evidence tending to show incompetency to make a will and of such a character that different inferences may fairly be drawn therefrom, the case must be decided as one of fact, and if the trial be before a jury must be left with it. Matter of Barney (1919), 185 App. Div. 782, 174 N. Y. Supp. 242.

On a proceeding for the probate of a will, evidence examined and held insufficient to establish that the testator was of sound and disposing mind and memory and possessed of testamentary capacity at the time of the execution of the instrument. Matter of Hurley (1919), 189 App. Div. 664, 179 N. Y. Supp. 11.

In considering the evidence where the probate of a will is contested upon the ground of fraud and undue influence, and that the testator was not of sound mind, it is important to view the proposed will in connection with the presumptions arising out of the due and orderly execution of the same, and if it is found that the instrument itself is one which is under all the circumstances consistent with the environment in which the testator found himself, trifling incidents spreading over a considerable time will not be permitted to defeat his declared purpose. Matter of Dunn (1918), 184 App. Div. 386, 171 N. Y. Supp. 1056.

A prior will made at a time when it is conceded that the testator was in full possession of his faculties has a bearing upon the question of the attitude of the testator toward his family, and is admissible in evidence. Matter of Dunn (1918), 184 App. Div. 386, 171 N. Y. Supp. 1056.

On a proceeding for the probate of a will it appeared that the testatrix was a maiden lady about eighty years of age at the time of the execution of the will, with second cousins of the half blood as her nearest next of kin; that she kept house alone and that twelve years before the execution of the will a young man went to live with her as a boarder and continued to make his home with her until her death. By the will in question she gave $1,000 to her attorney and left the residue of her estate to the young man. By a prior will she had left $1,000 to the young man and the same amount to each of several relatives, and had left the