151 NEW YORK SUPPLEMENT (C) Measure and Amount. § 124 (N.Y.Sup.) Damages cannot be based on a possible future use of the land, or a possible enhancement in its value, by the subsequent deepening of a river channel.-City of Lockport v. Tonawanda Iron & Steel Co., 151 N. Y. S. 923. $147 (N.Y.Sup.) In proceedings to condemn land in possession of a tenant, an award was properly made to the tenant for destruction of trade fixtures. In re Willcox, 151 N. Y. S. 141. (D) Persons Entitled and Payment. $155 (N.Y.Sup.) Condemnation ers in making award for rented land should decommissionduct from award to the owners the amount awarded to the tenant. In re Willcox, 151 N. Y. S. 141. III. PROCEEDINGS TO TAKE PROP. $178 (N.Y.) Under Rapid Transit Act, § 39, subd. 2, and sections 40, 43, 55, one whose property rights were not included on the maps filed for condemnation for a subway is not entitled to present his claim, nor can the Supreme Court require the inclusion of his rights on the maps.In re Willcox, 107 N. E. 499, 213 N. Y. 218. § 186 (N.Y.Sup.) Where land partly in one county and partly in another is sought to be condemned under the Rapid Transit Act, the filing of a map in either county is sufficient. In re Public Service Commission, 151 N. Y. S. 430. Where land sought to be condemned under the Rapid Transit Act was located partly in one county and partly in another, the court could permit the filing nunc pro tune of a map of the land in the county where it had been omitted, by a provision in the order appointing commissioners.-Id. ac § 191 (N.Y.Sup.) A petition seeking to quire by condemnation a "fee simple absolute" held to sufficiently show the interest sought to be condemned. In re Public Service Commission, 151 N. Y. S. 430. A petition to condemn certain land under the Rapid Transit Act for a railroad held to entitle a dock company owning adjoining land to prove such rights as it claimed were affected by the condemnation.-Id. That land belonging to different claimants was combined in the same parcel in proceedings to condemn the same under the Rapid Transit Act was immaterial.-Id. § 194 (N.Y.Sup.) The court, in proceedings to condemn land under the Rapid Transit Act, was authorized by section 59 to strike an alleged exception of interests owned by the city or state of New York, claimed to prejudicially affect the interests of the parties. In re Public Service Commission, 151 N. Y. S. 430. § 203 (N.Y.Sup.) In condemnation proceedings by a railroad, evidence as to the cost of reconstructing buildings on the uncondemned remainder of the tract was properly heard.-New York Cent. & H. R. R. Co. v. Newbold, 151 N. Y. S. 732. 1174 taken by the board of water supply of the city from the county where the land is situated and of New York becomes ineligible upon removing acquiring a residence in a foreign state.-In re Simmons, 151 N. Y. S. 537. $231 (N.Y.Sup.) In determining the damages ings by a railroad, the commissioners are not nation is set aside, an answer filed after such $242 (N.Y.Sup.) Until a judgment of condemorder by the persons whose property was taken, In re Flatbush Ave. Extension-Fourth Ave. questioning its necessity, cannot be considered. Subway, 151 N. Y. S. 766. created by Laws 1900, c. 170, as amended by § 246 (N.Y.Sup.) Power Laws 1906, c. 691, and Laws 1910, c. 361, to of commissioners abandon condemnation proceedings, must, under Code Civ. Proc. §§ 3374, 3375, be exercised within 30 days after final order.-In re Commissioners of Palisades Interstate Park, 151 N. Y. S. 977. condemning the fee and appointing commission$253 (N.Y.Sup.) An order granted by default, ers of appraisal, is not appealable.-In re Flatbush Ave. Extension-Fourth Ave. Subway, 151 N. Y. S. 766. land taken for public use held to waive claim$ 254 (N.Y.Sup.) Acceptance of an award for ant's right to appeal from the award, though accepted under protest.-In re City of New York, 151 N. Y. S. 407. § 262 (N.Y.Sup.) The conclusion of commissioners in condemnation as to the value of the of oversight or disregard of all the evidence, or land held not to be disturbed, unless the result unless the commissioners erred in their theory of the award.-New York Cent. & H. R. R. Co. v. Newbold, 151 N. Y. S. 732. on the amount of an award is not ground for The erroneous admission of evidence bearing reversal, if the award is supported by other sufficient evidence.—Id. V. TITLE OR RIGHTS ACQUIRED, tion vests title in the condemnor.-In re Flat- EMPLOYERS' LIABILITY ACTS. EMPLOYÉS. See Master and Servant; Municipal Corporations, §§ 123-220. ENGINEERS. 8227 (N.Y.Sup.) Under Laws 1905, c. 724, 88 7, 9, commissioner appointed to appraise land See Municipal Corporations, § 123. EQUITABLE ESTOPPEL. See Estoppel. EQUITY. See Cancellation of Instruments; Discovery; Divorce; Estoppel; Evidence, § 419; Executors and Administrators, § 314; Injunction; Partition; Quieting Title; Receivers; Specific Performance; Subrogation; Trusts. ESTATES. See Descent and Distribution; Dower; Executors and Administrators; Life Estates; Perpetuities; Wills. ESTOPPEL. See Appeal, § 1232; Infants, § 5; Landlord and Tenant, &61; Life Estates, § 26; Navigable Waters, § 43; Partnership, § 153; Trusts, § 53; Waters and Water Courses, § 156; Wills, $ 428. III. EQUITABLE ESTOPPEL. (A) Nature and Essentials in General. § 58 (N.Y.Sup.) Defendants, whose indorsements were forged, and whose guaranty of the indorsements was void, because the consideration of a contract to compound a felony, held not estopped from setting up the forgeries.-Catskill Nat. Bank v. Lasher, 151 N. Y. S. 191. § 62 (N.Y.Sup.) A city, by voluntarily maintaining bridges for 40 years after rendition of a decree, is not estopped to assert that the decree imposes on others the duty of such maintenance. -Rodee v. City of Ogdensburg, 151 N. Y. S. 349. (B) Grounds of Estoppel. § 72 (N.Y.Sup.) Confidence in an attorney who forged assignments of mortgages held not the probable cause of loss to the assignees, so that rule that, as between two innocent persons, injured by acts of a third person, the negligent person must suffer, did not apply.-Nash v. Moore, 151 N.. Y. S. 96. § 45; Carriers, § 228; Conspiracy, § 47; Contracts, $322; Corporations, § 432; Criminal Law, 88 361-552; Customs and Usages, §§ 16, 17; Damages, § 189; Death, § 60; Dedication, 41; Deeds, § 196; Discovery; Divorce, $$ 129, 151; Elections, § 329; Electricity, § 19; Eminent Domain, §§ 203, 262; Exemptions, 148; False Pretenses, $$ 42, 49; Fraud, 58; Frauds, Statute of, § 118; Fraudulent Conveyances, §§ 297, 300; Health, § 41; Homicide, §§ 152-250; Insane Persons, $97; Insurance, §§ 665, 817, 819; Judgment, $951; Justices of the Peace, § 99; Landlord and Tenant, § 231; Libel and Slander, §§ 101, 112; Marriage, §§ 47, 60; Master and Servant, $$ 80, 265-281, 330; Mortgages, § 464; Municipal Corporations, §§ 185, 220, 374, 654, 819; Negligence, §§ 121-134; New Trial, §§ 72, 99, 108; Nuisance, § 59; Partnership, 217; Pleading, § 396; Principal and Agent, 120; Records, § 9; Street Railroads, § 114; Taxation, § 810; Trial, §§ 139, 143; Trover and Conversion, §§ 35, 36; Venue, § 68; Warehousemen, § 34; Wills, $$ 52, 55, 163, 166, 289, 302, 489, 822, 826; Witnesses; Work and Labor, § 28. II. PRESUMPTIONS. § 81 (N.Y.Sup.) In the absence of evidence as to the law of the United Netherlands, adopted in New Netherlands, it will not be presumed that a deed bounded by the seashore included land beyond high-water mark.-John Clarke Estate v. City of New York, 151 N. Y. S. 714. IV. RELEVANCY, MATERIALITY, AND COMPETENCY IN GENERAL. (D) Materiality. § 147 (N.Y.Sup.) In action for goods sold, defendant's books of account and testimony of his bookkeeper to show that no entry was made relating thereto, held not admissible to show nondelivery.-Winder v. Pollack, 151 N. Y. S. 870. V. BEST AND SECONDARY EVIDENCE. § 185 (N.Y.Sup.) A copy of a writing which defendant claimed was given to plaintiff was admissible, after plaintiff's failure to produce the original on notice, though plaintiff denied having seen the original.-Lehrer v. Supreme Lodge Knights and Ladies of Honor, 151 N. Y. S. 991. $215 (N.Y.Sup.) A writing, which defendant claimed plaintiff had stated corresponded with an oral agreement between them, was admissible, in connection with plaintiff's statement, as an admission.-Lehrer v. Supreme Lodge Knights and Ladies of Honor, 151 N. Y. S. 991. (D) By Agents or Other Representatives. § 251 (N.Y.) An affidavit by the executor of an estate, fixing in a tax proceeding the value of the property, is an admission binding on the estate. Simon v. Etgen, 107 N. E. 1066, 213 See Adverse Possession, § 114; Alteration of For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER EXECUTION. $251 (N.Y.Sup.) Admissions of executors in discharge of their duties are prima facie binding on the estate.-De Lacy v. Gilchrist, 151 N. Y. See Exemptions, §§ 58, 148, 151. S. 508. VIII. DECLARATIONS. (A) Nature, Form, and Incidents in General. $ 269 (N.Y.Sup.) A revoked will of deceased, as well as a declaration in his account book, held admissible to show his intention as to what interest should be charged on loans due from his children.-In re Lown, 151 N. Y. S. 171. X. DOCUMENTARY EVIDENCE. (C) Private Writings and Publications. § 353 (N.Y.Sup.) A deed, the certificate of acknowledgment of which bears date the day before the date of the deed, is admissible, where the question of title is incidentally involved.Matthews v. Hill, 151 N. Y. S. 101. XI. PAROL OR EXTRINSIC EVIDENCE AFFECTING WRITINGS. VIII. RETURN. § 332 (N.Y.) Though an execution is issued to the sheriff of the county wherein the judgment debtor resides, under Code Civ. Proc. § 2458, it must be returned to the clerk with whom the judgment roll is filed, under section 1366.John Mulstein Co. v. City of New York, 107 N. E. 651, 213 N. Y. 308. X. SUPPLEMENTARY PROCEEDINGS. § 371 (N.Y.) Under Code Civ. Proc. § 2434. an order in supplementary proceedings, if issued by a Supreme Court justice, need not be issued by, or be returnable to, him in a particular coun107 N. E. 651, 213 N. Y. 308. ty.-John Mulstein Co. v. City of New York, $395 (N.Y.) A judgment debtor can only be required to attend for examination in supplementary proceedings before the judge to whom the order is returnable, or a referee in the county where the debtor resides, as provided by Code Civ. Proc. §§ 2442, 2459.-John Mulstein Co. v. (A) Contradicting, Varying, or Adding to City of New York, 107 N. E. 651, 213 N. Y. Terms of Written Instrument. § 419 (N.Y.) That an assignment of a longterm lease was to secure a debt may be established in equity by parol.-Reich v. Cochran, 107 N. E. 1029, 213 N. Y. 416. $423 (N.Y.Sup.) In action against indorser, defended on ground that indorsement was for accommodation, and ultra vires, exclusion of evidence as to the circumstances under which the note was made and discounted held error.Abbott v. Le Prevost, 151 N. Y. S. 616. (D) Construction or Application of Language of Written Instrument. § 452 (N.Y.Sup.) A bill of sale of a business to a corporation held to contain a latent ambiguity, so that parol evidence was admissible to show that a certificate of membership in a mercantile exchange passed with the sale.-De Lacy v. Gilchrist, 151 N. Y. S. 508. XII. OPINION EVIDENCE. (A) Conclusions and Opinions of Witnesses in General. $474 (N.Y.Sup.) A witness, who testifies that he is familiar with the handwriting of a third person and has seen her write, may testify that the signature to a lease is her signature.-Matthews v. Hill, 151 N. Y. S. 101. XIV. WEIGHT AND SUFFICIENCY. § 589 (N.Y.Sup.) Testimony of an employé, inconsistent with his testimony on the first trial and contrary to the testimony of all other employés in the same line of work, does not support a verdict in his favor.-Ryan v. Braender Bldg. & Const. Co., 151 N. Y. S. 576. EXAMINATION. See Discovery, §§ 31, 36, 40, 42; Witnesses, §§ 227-305. 308. § 407 (N.Y.) Under Code Civ. Proc. §§ 715, 2467, 2468, 3343, subd. 4, the bond of a receiver in a supplementary proceeding must be filed in the office of the clerk wherein the judgment roll in the action is filed.-John Mulstein Co. v. City of New York, 107 N. E. 651, 213 N. Y.. 308. § 409 (N.Y.) On completion of a public contract, the contractor has an interest in the fund provided for payment, which interest will pass to his receiver in supplementary proceedings. -John Mulstein Co. v. City of New York, 107 N. E. 651, 213 N. Y. 308. Title of a qualified receiver in supplementary proceedings dates from the commencement of the proceedings and is superior to subsequent liens.-Id. motion to set aside a default in supplementary § 418 (N.Y.Sup.) A judgment debtor, whose proceedings was denied on the merits and the ruling affirmed on appeal, cannot have his punishment stayed pending an appeal from the order adjudging him guilty of contempt.-Soule v. Lookstein, 151 N. Y. S. 67. § 4202 [New, vol. 10 Key-No. Series]. (N.Y.Co.Ct.) Failure of employer to secure modification of the garnishee execution secured under Code Civ. Proc. § 1391, held not to render him liable for the amount called for therein, irrespective of the amount earned and received by the employé.-Hubertus v. Reilly, 151 N. Y. S. 775. Where under the evidence in an action against a garnishee under Code Civ. Proc. § 1391, it appeared that plaintiff was entitled to recover in some amount, though not the amount claimed, it was error to enter judgment for defendant. -Id. XI. EXECUTION AGAINST THE PERSON. § 448 (N.Y.Mun.Ct.) A defendant, given jail liberties of the county of Bronx, does not vio Evidence in an administrator's proceeding under Code Civ. Proc. § 2675, held insufficient to show that a bank book and deposits therein noted were the property of respondent, and not of decedent, to whom the deposits were credited. late his bond because he goes to New York City, Under Code Civ. Proc. § 111, a bond to secure jail liberties to a debtor arrested for a debt less than $500 is discharged by operation of law after three months from the arrest.-Id. EXECUTORS AND ADMINIS TRATORS. $85 (N.Y.Sur.) Under Surrogates' Law, Code Civ. Proc. § 2676, relating to trial and decree in proceeding to discover withheld assets, held that, on respondent's answer denying possession, but not alleging title or right to possession, he would be directed to submit to discovery, but a jury trial of the question of title would not be ordered. In re Silverman, 151 N. Y. S. 382. See Descent and Distribution; Evidence, § 251; 2675, 2676, and in view of section 416, held, Partition, § 111; Trusts; Wills. II. APPOINTMENT, QUALIFICATION, § 17 (N.Y.Sur.) A simple renunciation by decedent's father, the only person entitled to share in the estate under Consol. Laws, c. 13, $ 98, subd. 7. held insufficient as a "consent,' within Code Civ. Proc. § 2588, for the mother to be appointed administratrix.-In re Murphy, 151 N. Y. S. 475. $17 (N.Y.Sur.) The right to be appointed administrator is purely statutory.-In re D'Agostino, 151 N. Y. S. 957. $ 24 (N.Y.Sur.) Right of public administrator to letters of administration on the estate of an alien decedent held prior to the right of the consul general of the nation of which decedent was a subject. In re D'Agostino, 151 N. Y. S. 957. $ 24 (N.Y.Sur.) The right of a public administrator to letters of administration on the estate of an alien decedent leaving no surviving person competent to serve as administrator is prior to the right of the nation of which decedent was a subject.-In re Comparetto, 151 N. Y. S. 961. $35 (N.Y.Sup.) In view of the new section 2692, Code of Civil Procedure, an executor who paid reasonable counsel fees before allowance cannot be removed for wasting assets, contrary to old section 2685, subd. 2, Code of Civil Procedure. In re Doscher, 151 N. Y. S. 76. $35 (N.Y.Sup.) Under Code Civ. Proc. § 2569, an administrator cannot be removed for refusing to verify papers necessary to his substitution as party plaintiff in place of decedent, where all the next of kin did not desire further litigation. -In re Hill's Estate, 151 N. Y. S. 791. It is irregular to ingraft on a proceeding to appoint an administrator an entirely separate proceeding to remove an administrator appointed.-Id. IV. COLLECTION AND MANAGEMENT (A) In General. $85 (N.Y.Sur.) Under Laws 1914, c. 443, revising Code Civ. Proc. c. 18, held, that the surrogate had jurisdiction in an administrator's proceeding to discover property withheld, not only to hear the evidence, but determine the issue. In re Schwartz's Estate, 151 N. Y. S. 374. § 85 (N.Y.Sur.). Under Code Civ. Proc. §§ that the surrogate could not try issue of title and possession raised by answer of surviving partner.-In re Capria's Estate, 151 N. Y. S. 385. § 91 (N.Y.Sur.) Executors should take all measures which a prudent man ought to take to make the corpus of the estate yield a fair return to the life tenant and preserve it for the remaindermen.-In re Donohue, 151 N. Y. S. 1094. An executor must preserve the rights of a residuary legatee of a trust fund, as well as those of a life tenant.—Id. § 96 (N.Y.Sup.) An executor cannot bind the estate by his executory contract, made upon a new and independent consideration.-In re Doscher, 151 N. Y. S. 76. § 102 (N.Y.Sur.) The rule that an executor holding funds for investment must put them in government or real securities is modified to the extent that such other securities may be held as the Legislature authorizes.-In re Donohue, 151 N. Y. S. 1094. § 105 (N.Y.Sur.) The time during which an executor may properly retain funds of the estate in a bank is limited to the period in which a prudent and active man could find a proper investment.-In re Donohue, 151 N. Y. S. 1094. Where executors deposited money in a bank, and left it there long beyond the time required to find an investment for it, held that they were liable for loss by failure of the bank.-Id. (B) Real Property and Interests Therein. devisees to take the land in specie will not dis§ 138 (N.Y.Sup.) Election by less than all charge an executor's power of sale.-In re Fagan, 151 N. Y. S. 701. § 143 (N.Y.Sup.) Where devisees transfer their undivided interest in the property, as against the executor they cannot be heard to allege fraud on part of transferee, or to deny the transfer, when the executor sells to such transferee and credits him on the price with the devisees' share of the proceeds. In re Fagan, 151 N. Y. S. 701. § 146 (N.Y.Sup.) Where respondents, devisees of an undivided interest in land, cach conveyed to their uncle, the executor selling under power to such uncle was justified in crediting him with respondents' share of the purchase price. -In re Fagan, 151 N. Y. S. 701. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER VI. ALLOWANCE AND PAYMENT OF their term of office, held to waive commissions. (A) Liabilities of Estate. § 221 (N.Y.Sur.) A claimant's testimony as to transactions with the decedent will not, unless of the most convincing character, authorize a judgment for claimant.-In re Schwartz's Estate, 151 N. Y. S. 374. (D) Priorities and Payment. § 281 (N.Y.Sup.) Administrators held entitled to recover from a surrogate the amount paid him as attorney's fee for representing them, with which their accounts had been surcharged. -Merrill v. Parsons, 151 N. Y. S. 794. Where executors received for over two years the salary fixed by will, and then renounced the compensation without notifying coexecutors and continuing to receive the specific compensation, the renunciation was ineffectual.-Id. $494 (N.Y.Sup.) One who aided the executor in a subsequent will held entitled to an allowance, although named as executor in a prior will. In re Lown, 151 N. Y. S. 171. XII. FOREIGN AND ANCILLARY AD- § 519 (N.Y.Sup.) Right of New York creditor to have New York assets of foreign intestate administered may be enforced by an application to the surrogate, under Code Civ. Proc. § 2670.-Bostwick v. Carr, 151 N. Y. S. 74. VII. DISTRIBUTION OF ESTATE. § 294 (N.Y.Sup.) Where a father lent money to his children, and provided that the sums advanced should, with fixed interest, be deducted from their shares, the father's executors cannot charge a higher rate of interest than he fixed. See Municipal Corporations, §§ 408, 434. In re Lown, 151 N. Y. S. 171. An agreement between the heirs, who procured the will, that those who had received advances should account therefor, held enforceable. -Id. $314 (N.Y.Sup.) Under Code Civ. Proc. $ 2736, and section 2510, conferring full equity jurisdiction, held, that surrogate, on consent filed by remaindermen having no present right of distribution, had no power to order distribution in specie.-In re Holzworth, 151 N. Y. S. 1072. EXEMPTIONS. I. NATURE AND EXTENT. (C) Property and Rights Exempt. § 58 (N.Y.Sup.) Code Civ. Proc. § 1393, extend to and include real estate purchased with empting pensions from execution, held to the pension money.-Benedict v. Higgins, 151 N. Y. S. 42. IV. PROTECTION AND ENFORCE- ex VIII. SALES AND CONVEYANCES UN- realty declared exempt from execution, under DER ORDER OF COURT. (C) Sale. § 367 (N.Y.Sup.) Where the administrator had not obtained, under Code Civ. Proc. § 2751, a judgment for the sale of land to pay debts, title from him was not marketable, and a purchaser will not be required to carry out his bid.-Monroe v. Musica, 151 N. Y. S. 504. X. ACTIONS. § 148 (N.Y.Sup.) Evidence in action to have Code Civ. Proc. § 1393, because purchased with pension money, held to support findings that it was entirely paid for with pension money, and that its present value was $1,000.-Benediet v. Higgins, 151 N. Y. S. 42. tiff's real property exempt, under Code Civ. $151 (N.Y.Sup.) In action to declare plainProc. § 1393, from execution, judgment directing defendant's judgment to be indorsed to the effect that it was not a lien on the property held proper.-Benedict v. Higgins, 151 N. Y. S. 42. EXPERT TESTIMONY. § 430 (N.Y.) An administratrix of a lessee who took possession of the premises and continued in actual possession under the lease held personally liable for the rent. Legget v. Pelle- See Appeal, § 971. treau, 107 N. E. 509, 213 N. Y. 237. § 453 (N.Y.) Where the complaint states a cause of action for rent against defendant indi EX POST FACTO. vidually and as administratrix of the deceased See Constitutional Law, § 197. lessee, within Code Civ. Proc. § 1815, the judg ment must designate the capacity in which de EXPRESS TRUSTS. fendant is bound.-Legget v. Pelletreau, 107 N. See Trusts, §§ 53, 56. E. 509, 213 N. Y. 237. XI. ACCOUNTING AND SETTLEMENT. (D) Compensation. § 490 (N.Y.Sup.) A delay of about 2 years 4 months by executors before renouncing, as authorized by Code Civ. Proc. § 2753, the specific compensation given by will, held not unreasonable. In re Nester, 151 N. Y. S. 194. Where executors, appointed by will fixing their annual salary, drew for over two years the monthly salary, with knowledge that the widow had surrendered an annuity, so as to shorten See Brokers. FACTORS. FALSE PRETENSES. § 42 (N.Y.Sup.) In a prosecution of a corporation for obtaining state money from the state by a false voucher, evidence that the workmen shirked their work and declarations made by them held admissible to show a scheme to de |