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the Supreme Court nominees for other offices
ELECTORS. who were not to be elected for the same district, so as to thereby include in one petition See Elections, $ 143. candidates to be voted for in several districts not coterminus.-In re O'Brien, 137 N. Y, S. 718, 1106.
ELECTRICITY. $ 154 (N.Y.Sup.) A person who intends to $ !! (N.Y.Sup.) Plaintiff cannot recover run as an independent candidate for delegate penalty, under Transportation Corporations to a state convention is a person aggrieved" Law, $ 62, for an electric light company's failby improper certification of names of persons ure to furnish current, in the absence of proof as designated by the party's county committee of a written demand.--Reiser v. Edison Elecas candidates for delegates to go on the official tric Illuminating Co. of Brooklyn, 137 N. Y. S. primary ballot, and so, under Election Law, $ 145. 56, may maintain a proceeding for review there Each day's default after the expiration of 10 of.-In re Clark, 137 N. Y, S. 218.
days after demand is complete in itself.--Id. A proceeding under Election Law, $ 56, to Plaintiff's right is limited to the amount acreview the improper certification of names of cruing prior to the commencement of the acpersons as desigpated by a county committee tion and subsequent to 10 days after demand. as regular candidates for a state convention to-Id. be placed on the official primary ballot, is not too late because begun after the certificate is
$ 154 (N.Y.Sup.) Election Law, $ 56, relat- See Master and Servant, $ 134.
TION OF POWER. Under the circumstances, held, that it could not be assumed that the signers of a petition $ 2. (N.Y.Sup.) an ordinance that bill boards for an independent certificate of nomination for within a city could only be constructed of metthe office of Supreme Court Justice, under the al held invalid, as taking private property name and emblem of the National Progressive without compensation, when applied to bill party, were not bona fide members of that party, boards erected on private property and not con-Id.
stituting a menace to others.-People ex rel,
Standard Bill Posting Co. v. Hastings, 137 N. $ 155 (N.Y.Sup.) Alteration of a certificate Y. S. 186. for an independent nomination held to render the certificate fraudulent and forged within
$ 45 (N.Y.Sup.) That a railway company reElection Law, $ 123, and hence invalid.-In re
ceived a deed to two parcels of land, on condiShook, 137 N. Y. S. 834.
tion that a tunnel would be maintained under one tract and that the grantors should have
perpetual use of the surface, held not to preVII. BALLOTS.
vent the company's successor from afterwards $ 168 (N.Y.Sup.) The act which completes taking the surface, on being ordered by the and effectuates the selection and designation of Public Service Commission to elevate its tracks. emblems to distinguish candidates nominated by Long Island R. Co. v. Fairchild, 137 N. Y. petition is the filing of a nominating petition S. 563. and designation of emblem with the custodian 8 62 (N.Y.Sup.) One who consents to an enof primary records.-In re Wetmore, 137 N. Y. try on his premises by a city for the construcS. 222.
tion by it of public improvements according to Where a candidate, whose nominating petition plans making it necessary for it to construct and designation of emblem were filed, declined a bulkhead along a part of the water front of the nomination, the emblem designated did not the premises does not thereby give the city a obtain any precedence, and could be selected license to destroy his remaining bulkhead, nor by another candidate.-Id.
authorize the city to impose a special burden Under primary Election Law, $ 58, a selec. on such premises for a public purpose, and the tion of an emblem to distinguish independent city, taking the property in constructing the candidates on the official primary ballot pre public improvement must pay damages therefor. cludes the use of such emblem by other inde -Castle Bros. y. City of New York, 137 N. Y. pendent candidates for other positions.--Id. S. 734.
For cases in Dec. Dig. & Ain. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER
§ 169 (N.Y.Sup.) In a proceeding by the state
to acquire title to a toll bridge under Highway (B) Taking
Law, $ 265, Laws 1909, c. 146, and Code Civ.
Proc. 3371, an order confirming the report $85 (N.Y.Sup.) Under Laws 1908, c. 195, § 2, of commissioners determining the value of the the state held liable to a railroad company for bridge and franchises prior to the taking of a the cost of maintaining and renewing a bridge vote by the supervisors approving the purchase, to be erected by the company across a barge etc., was not premature.-In re Toll Bridge in canal constructed by the state. People ex rel: St. Lawrence County, 137 N. Y. S. 485. New York Cent. & H. R. R. Co. v. Sobmer, 137 N. Y, S. 382.
$ 172 (N.Y.Sup.) In proceedings to condemn 8 85 (N.Y.Sup.) Where land burdened with an
land for public use, it was within the discre
tionary power of the court to refuse to consider easement of way in favor of third persons was taken for a street, the owner of the land taken other justice within the judicial district for
the case at Special Term and send it to anand of abutting land was not entitled to con- hearing.-In re Bensel, 137 N. Y. S. 374. sequential damages, in the absence of evidence of such damages. In re Titus Street in the 8 174 (N.Y.Sup.) A town superintendent of City of New York, 137 N. Y. S. 817.
highways held to have no power to waive High§ 101 (N.Y.Sup.) Where property had been way Law, $ 193, requiring an application to the improved according to the grade of a sidewalk, county court for appointment of commissioners maintained for 17 years, and the city raised the to assess damages for a highway improvement walk from 10 to 14 inches, such raise consti- to be made within 30 days after presenting tuted a change of grade, entitling the abutting the application to the town superintendent.property owners to recover damages, under Vil In re Laidlaw, 137 N. Y. S. 1076. lage Law, $ 159.-Lester y. Village of Blais $ 237 (N.Y.Sup.) The city of New York, instidell, 137 N. Y. S. 491.
tuting proceedings for the taking of land for a A change of sidewalk grade in front of a va- street, may maintain a motion to vacate the cant lot held not a taking of property for which order confirming the report of the commissionthe owner was entitled to damages, under Vil- ers of estimate and assessment, and to appoint lage Law, $ 159,-Id.
a referee to take proof relating to the owner. 8 101 (N.Y.Sup.) Where the elimination of ship of an award made to an unknown owner.a grade crossing rendered it impossible there- In re Titus Street in the City of New York, 137 after to afford adjoining property private N. Y. S. 817. switching connections, such fact was a proper element of damage.-In re Grade Crossing | land for city water supply, the city held not en
8 238 (N.Y.Sup.) In proceedings to condemn Com'rs of City of Buffalo, 137 N. Y. S. 999. titled to object that the award had not been ap
portioned, so that the city could pay interest (C) Measure and Amount.
from the time of the taking.-In re Bensel, 137 $ 149 (N.Y.Sup.) One owning land burdened N. Y. S. 374. with an easement of way in favor of third per An award of commissioners in condemnation sons may only recover nominal damages for proceedings will not be set aside for errors in the taking of the land for a street.-In re Titus the receipt or rejection of evidence, or for inStreet in the City of New York, 137 N. Y. S. adequacy or excessiveness, unless it is palpably $17.
wrong in any regard, but only in case the com$ 150 (N.Y.Sup.) In proceedings to condemn missioners adopted an erroneous principle.-Id. land, an award of $45,000 held so fanciful and $ 240 (N.Y.Sup.) Condemnation Law, providextravagant as to require vacation.-In re Val- ing for trial of issues before the court or refley Stream, 137 N. Y. S. 329.
eree, held not applicable to proceedings for $ 150 (N.Y.Sup.) An award of $15,000 dam- change of a sidewalk grade until after appointages to property by the construction of a bridge ment of commissioners.--Lester y. Village of over a creek between the boroughs of Brooklyn Blaisdell, 137 N. Y. S. 491. and Queens, not supported by any evidence, Where a proceeding for damages for change held unsustainable.- People ex rel. Hallock v. of sidewalk grade was referred to a referee to Hennessy, 137 N. Y, S. 819.
hear, decide, and report on, the report was ad.
visory only; the matter being regarded as be-
$ 245 (N.Y.Sup.) Where a city, taking land
for a water supply, took with a reservation of $ 167 (N.Y.Sup.) Proceedings to condemn land easements for ways of access to remaining land for municipal purposes by the city of Yonkers of the owner, it could not thereafter, to reduce being required to be conducted under Laws 1908, the consequential damages, provide for other c. 452, and such law having repealed Second ways, and an order so permitting was not an Class Cities Law, $ 103, the condemnation law amendment allowed by Laws 1905, c. 724,6 23. did not apply.-In re Sawmill River Road in --In re Catskill Aqueduct, Section No. 1, 137 N. the City of Yonkers, 137 N. Y. S. 825.
Y. S. 339. $ 167 (N.Y.Sup.) Since a proceeding to lay $ 253 (N.Y.Sup.) In eminent domain proceedout and extend a street and assess the bene- ings, an order refusing to confirm report of comfited property is in invitum, all material stat, missioners of appraisal as to an award for the utory provisions must be strictly complied taking and injuring of certain property was not with therein.-In re Laidlaw, 137 N. Y. S. appealable.-In re Valley Stream, 137 N. Y. S. 1076.
$265 (N.Y.Sup.) In proceedings to acquire title to a toll bridge, the state had no power,
EQUITY. under Code Civ. Proc. $ 3240, to grant an ex' See Conversion; Courts, $ 20044; Discovery; tra allowance of costs.-In re Toll Bridge in Estoppel, 8$ 90, 93; Fraudulent ConveyancSt. Lawrence County, 137 N. Y. S. 485.
es; Injunction ; Joint Adventures, & 5; LandWhere property sought to be condemned in lord and Tenant, $ 314; Licenses, $ 39; Revolved a toll bridge and its franchises which ceivers ; Reformation of Instruments ; Trusts. could not be sold without statutory authority, Code Civ. Proc. $ 3372, did not apply or au
ESTATES. thorize an extra allowance of costs.-Id.
In proceedings to condemn the property and See Executors and Administrators; Life Esfranchises of a toll bridge company, the court
tates; Wills. was authorized by Code Civ. Proc. § 3240, to award ordinary costs to the defendant.-Id.'
ESTOPPEL. $ 265 (N.Y.Sup.) In a proceeding by the city of See Criminal Law, $ 1137; Insane Persons, $ Yonkers to condemn land for municipal purposes 67; Insurance, 388; Mortgages, § 275 ; under Laws 1908, c. 452, the court has power Wills, $ 697. to award the landowner a taxable bill of costs and an extra allowance under Code Civ. Proc.
II. BY DEED. $ 3240.-In re Sawmill River Road in the City
(A) Creation and Operation in General. of Yonkers, 137 N. Y. S. 825.
$ 19 (N.Y.Sup.) Beneficiaries under a will, IV. REMEDIES OF OWNERS OF subject to the excutor's execution of a naked PROPERTY.
power in trust, held not estopped from asserting $ 300 (N.Y.Sup.) The assessed value of land any claim to the real property as against gran
tees under a deed given by the executor upon used by railroads for bridge and railroad purposés is some evidence of actual value, which an exchange of property in excess of his pow
ers.--Turco y. Trimboli, 137 N, Y. S. 343. the owner is entitled to recover, but is not controlling.-Porter v. International Bridge Co.,
III. EQUITABLE ESTOPPEL, 137 N. Y. S. 214. 8 303 (N.Y.Sup.) An owner, suing for the
(B) Grounds of Estoppel. value of his land used by railroads for bridge
$90 (N.Y.Sup.) The city of New York, by and railroad purposes, is entitled to the best treating certain land under Gravesend Bay as obtainable price as a seller's price, without ref- belonging to persons deriving title from the erence to the purchaser's intentions as to use.
state and taxing it accordingly, did not estop Porter v. International Bridge Co., 137 N. Y. itself from claiming the land under the bay as S. 214.
belonging to the city.--Somerville v. City of An owner of land which has been used by New York, 137 N. Y. S. 919. railroads for railroad and bridge purposes is
$ 93 (N.Y.Sup.) The city of New York held entitled to recover an amount constituting a
not estopped from claiming title to land under fair and reasonable sum, treating the land used as having been actually rented by the railroads Gravesend Bay by acquiescing in improvements during the period of their use of the property, the state or otherwise.-Somerville v. City of
upon a part thereof obtained by grants from and the owner may recover 5 per cent. per an
New York, 137 N. Y. S. 919, num on the agreed value, plus the taxes.-Id. Where an owner of land used by railroads for
EVICTION. bridge and railroad purposes was awarded full value of the land and the full value of the use See Landlord and Tenant, & 231; Vendor and thereof by the railroads, aside from a condition Purchaser, $ 305. created by a change of grade of an abutting street, and not as depreciated by reason of the
EVIDENCE. changed grade, the owner could not recover consequential damages occasioned by the change See Affida vits; Appeal, $8 930, 931, 1170; Asof grade.-10.
signments; Attorney and Client, $$ 98, 166 ;
Bailment, $ 31; Bankruptcy, $ 436; BoundaV. TITLE OR RIGHTS ACQUIRED. ries; Carriers, § 318; Constitutional Law, $ 8 317 (N.Y.Sup.) Proceedings for the condem
81; Contracts, $8 237, 350; Corporations, nation of land having gone forward according
432, 610; Criminal Law, $ 42; Death, $ $ 2, to statute, the city acquired a good title to the
75; Deeds, § 207 ; Depositions; Discovery; land taken, and would be protected in making
Divorce, $$ 129, 136; Elections, $ 154; Emipayment to the claimant.-In re Bensel, 137 N.
nent Domain, $ 300; Executors and AdininY, S. 374.
istrators, $$ 32, 221; Frauds, Statute of, s
106; Fraudulent Conveyances, 88 168, 281; EMPLOYERS' LIABILITY ACTS.
Husband and Wife, $$ 48. 297; Insurance,
$ 665; Judgment, $$ 167, 951; Landlord and See Master and Servant, 88 107, 121, 252.
Tenant, $8231, 314; Livery Stable Keepers,
$7; Master and Servant, $$ 6, 9, 265-278, ENTRY.
330, 332; Mechanics' Liens, $ 280 ; Money
Lent; Monopolies, $ 24; Negligence, &$ 121, See Clerks of Courts, & 18.
134; Partnership, 8 336; Principal and For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section ($) NUMBER
F 1548 Lad to
Agent, $$ 12, 177; Process, $ 149; Rape ; ply necessary jurisdictional facts.--Bowman v.
§ 211 (N.Y.Sup.) An execution creditor of a
no fai 58, 163, 166, 289–302, 432, 487; Witnesses. assertion of ownership, may prove statements by Reception of, see Trial, $8 54, 62.
defendant in the course of his testimony in bis
suit against the corporation, constituting admisI. JUDICIAL NOTICE.
sions against interest.-Cohen v. Sobel, 137 N. $ 20 (N.Y.Sup.). A court may take judicial no-Y. S. 897, tice that the grades of a railroad may be chang.
$ 213 (N.Y.Sup.) An instrument, written by nagre ed.- Delavan v. New York, N. H. & H. R. Co., defendant as a proposed draft of a contract of 137 N. Y. S. 207.
employment of plaintiff, held not objectionable,
in an action by plaintiff for services, as an offer II. PRESUMPTIONS.
of compromise.-Butterly v. Deering, 137 N. Y. $60 (N.Y.Sur.) As against a litigant claiming
$456 forgery, the presumption of innocence applies, $ 220 (N.Y.Sup.) Statements of a husband,
mitt be putting on her the burden of establishing the in the presence of and without objection from claim by a preponderance of proof.—In re Ma- a testatrix, held admissible to prove a conra, 137 N. Y. S. 151.
tract to make mutual wills.--Wallace y. Wal$ 60 (N.Y.Sur.) The proponent of a will, the lace, 137 N. Y. S. 43. signature to which was alternately sworn to be a forgery and genuine, is entitled to the (C) By Grantors, Former Owners, or Priv.
X benefit of the presumption of innocence, though not strictly applicable.-In re Jacobs' Will, 137 $ 233 (N.Y.Sup.) In an action by a devisee of N. Y. S. 155.
a piano against one claiming under a gift inter $65 (N.Y.Sup.) Every person is presumed vivos from the testator, evidence of a person to know the law.-Mackmull v. Brandlein, 137 who drew the will as to statements of testator N. Y. S. 607.
assuming ownership held inadmissible as in der8 67 (N.Y.Sup.) While it may be common N. Y. S. 807.
ogation of title.-Schmidt v. Schweitzer, 137 knowledge that the shores of Gravesend Bay near the former town of Gravesend and Coney
(E) Proof and Effect. Island have shifted materially within the memory of man, and within the last 200 years, in value of goods alleged to have been delivered by
$ 263 (N.Y.Sup.) Where, in an action for the absence of contrary proof, it must be assumed the plaintiff to the defendant, plaintiff placed in that the present existing physical conditions evidence, to show a delivery, admissions of the are as they always were: Somerville v. City defendant's agent, a refusal to permit such agent of New York, 137 N. Y. S. 919.
to explain the admissions, by showing the cir$ 73 (N.Y.Sup.) Where a side track and gates cumstances under which they were made, was were maintained and operated for a period of improper.-Bernstein v. Fuller's Express Co., years without objection, it is presumed that 137 N. Y. S. 910. the same were constructed and operated under some grant or by virtue of some lawful author
VIII. DECLARATIONS. ity.-Donovan v. Erie R. Co., 137 N. Y. S. 113.
(B) By Decedents Against Interest. IV. RELEVANCY, MATERIALITY, AND
$ 278 (N.Y.Sup.) Admissions of a testatrix
as to the making of a former will held ad-
against $147 (N.Y.Sup.) Where persons who could
her representative and beneficiaries.-Wallace have heard the horn of an automobile, had it
V. Wallace, 137 N. Y. S. 43. been sounded, testified that they did not hear
X. DOCUMENTARY EVIDENCE. it, a finding that the horn was not sounded was justified, though there was evidence that it was (D) Production, Authentication, and Ef. sounded.-Bobringer v. Campbell, 137 N. Y. S.
§ 377 (N.Y.Sup.) In an action for personal
injuries, a card record of the hospital where (E) Competency.
plaintiff was treated held properly excluded.-
DENCE AFFECTING WRITINGS.
(C) Separate or Subsequent Oral Agree(A) Nature, Form, and Incidents in Gen
$ 444 (N.Y.Sup.) Parol evidence that a lease
of the roof of a building for advertising pur $ 207 (N.Y.Sup.) Where the judgment of a
poses was delivered on condition that it should court of limited or superior jurisdiction is re not become effective if a tenant in possession lied on, a special admission of counsel may sup. I had a lease covering the same period held in
admissible.-American Bill Posting Co. v. Gei
EXECUTION. ger, 137 N. Y. S. 148.
$ 445 (N.Y.Sup.) In an action for damages See Attachment; Electricity; Executors and from failure to install an elevator under a writ.
Administrators, $ 454. ten contract which failed to provide for a time within which it was to have been installed, evi- X. SUPPLEMENTARY PROCEEDINGS. dence of a subsequent oral agreement under $ 388 (N.Y.Sup.) An order for the examinawhich the defendant agreed to complete the tion of a third person in supplementary prowork within three weeks was inadmissible, be- ceedings held to have been granted upon the cause it tended to vary the terms of the writ- condition of filing of an additional affidavit by ten agreement.- Manhattan Top & Body Co. v.
the judgment creditor to obviate defects in the Boymann, 137 N. Y. S. 883.
moving papers, so that the examination could (D) Construction or Application of Lan- Stell v. British Union & National Ins. Co., 137
not proceed if such affidavit was not filed.guage of Written Instrument.
N. Y. S. 703. $ 456 (N.Y.Sup.) Telegrams constituting con
$ 398 (N.Y.Sup.) A witness in supplementary tract between actor and manager of theater held to justify evidence that in the theatrical proceedings is entitled to refuse to answer quesbusiness the term "regular engagement" had a such time as the court shall direct him to an
tions considered by him to be improper until definite meaning, and in a particular case swer. ---Price v, Creme De Mohr Co., 137 N. Y. meant an engagement for 52 weeks.-Lewis v.
S. 732. Blackwood, 137 N. Y. S. 1061.
$ 417 (N.Y.Sup.) A judgment debtor in supXII. OPINION EVIDENCE.
plementary proceedings, who submits to an
examination, but who gives without objection (D) Examination of Experts.
evasive answers, may not be adjudged guilty of 8 554 (N.Y.Sup.) Experts are not confined contempt, under Code Civ. Proc. $ 2457.-Shorto a statement of a general rule, but may state witz v. Caminez, 137 N. Y. S. 545. recognized exceptions thereto.---Thompson V. Where the examination of a judgment debtor Peterson, 137 N. Y, S. 635.
in supplementary proceedings disclosed the fact
that some of his answers were evasive, and (F) Effect of Opinion Evidence.
that questions not answered did not relate to $568 (N.Y.Sur.) Opinion evidence is merely matters necessarily within his knowledge, or an aid to the trior of facts, and never conclu
were not material, his conduct was not a civsive, especially when the opinion is founded on il contempt, under Judiciary Law, § 753, subd. a hypothesis demonstrably incomplete or incon- 8.-Id. clusive.-In re Mara, 137 N. Y. S. 151.
A contempt proceeding must be based on a $ 573 (N.Y.Sur.) As against an opinion of a
violation of a clear and precise mandate of the handwriting expert, a note must be found gen- court, and, before a judgment creditor in supuiue; a disinterested and unimpeached witness plementary, proceedings resorts to the remedy, testifying that, on its bolders offering to sell it he should indicate his dissatisfaction with the to him in the presence of the person whose
answers of the judgment debtor, and attempt name was signed to it as maker, such person
to obtain more specific answers.-Id. objected, and said he would "take it up short
§ 417 (N.Y.Sup.) An order adjudging a witly."-In re Mara, 137 N. Y. S. 151.
ness in supplementary proceedings in contempt
for refusal to testify to certain facts concernXIV. WEIGHT AND SUFFICIENCY. ing the judgment debtor and its property held $594 (N.Y.Sup.) Defendant's production of unsustainable Price v. Creme De Mohr Co., a witness who had made and preserved record evidence, without producing such record evi
A witness in supplementary proceedings held dence in support of his testimony, as to a cer
not punishable for contempt in refusing to antain date, held to amount to an admission that creditor's counsel during the absence of the
swer questions put to him by the judgment the plaintiff's evidence as to such date was
court.-Id. correct.-R. G. Packard Co. v. City of New York, 137 N. Y. S. 9.
EXECUTORS AND ADMINISTRATORS. EXAMINATION.
See Appeal, SS 91, 151, 1194; Conversion; See Discovery, & 73; Execution, $ 388; Li
Courts, $$ 20014-202; New Trial, $ 102; censes, $ 22; Witnesses, &$ 255, 275.
Partnership, $$ 67, 255, 257, 301 ; Pleading,
§ 317; Trusts, $ 282; Vendor and Purchaser, EXCAVATIONS.
$ 130; Wills, See Municipal Corporations, & 360.
II. APPOINTMENT, QUALIFICATION,
$ 18 (N.Y.Sur.) Under Code Civ. Proc. $ See Damages, $ 132.
2669, a sister of an intestate, though a non
resident at the time of his death, who there. EXCHANGE OF PROPERTY,
after establishes a residence in Kings county,
is entitled to administer bis estate.-In re Ar See Wills, $ 693.
buckle, 137 N. Y. S. 683. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (3) NUMBER