14 Such condition is a condition subsequent,
and can only be taken advantage of by a re-
entry by the grantor.
Id.

15 Although the grant was in violation of the
statute, possession by the grantee for twenty
years is a bar to any one subsequently acquir-
ing title to the adjoining upland.
Id.

16 An agreement executed by a grantee of real
estate on receipt of his deed, which provides
that he will sell the property at the option of
either party to the agreement, and divide the
profits equally with the grantor, and that if
the property was not sold within one year the
grantor's interest therein should cease, is not
a defeasance, and the conveyance to the gran-
tee is properly recorded as a deed. Macauley
v. Porter.
348

17 The fact that the grantee advanced money
to the grantor upon a note payable in one year
or sooner if the property should be sold, does
not change the nature of the transaction. Id.
18 A deed is not necessarily presumed to be
fraudulent because the husband of the grantee
is a brother of the grantor, and is his agent
for the sale of the property to third persons,
and the deed is given at his request, and with-
out pecuniary consideration. In the absence
of fraud, bad faith, concealment or superior
knowledge on the brother's part, and where
the deed expresses the intelligent, deliberate
purpose of the grantor, it is valid and binding.
The parties do not act in the matter as princi-
pal and agent, but as principals alike; and the
strict rule governing the case of a trustee deal-
ing with a trust estate does not apply. Mitch-
ell et al. v. Mitchell et al.

449

19 The requirements of § 1244 of the Code of
Civil Procedure are plain and peremptory, and
while such section continues in force the offi-
cer making a conveyance cannot be relieved
from its observance. Randel v. Von Eliert et
al.
476

20 The provisions of § 1244 are not in conflict
with 3 R. S. (5th ed.) 273, § 88.
ld.
21 When a deed clearly defines the premises
conveyed, an encroachment by the grantee
upon an alley, which is one of the boundaries,
and to a portion of which the grantor has ac-
quired title by user, will not entitle the grantor
to recover back a portion of the land on the
opposite side equal in quantity to that taken
by the grantee from the alley. The descrip-

tion in the deed must control. Lawrence v.
Palmer.
488

22 The recitals in an Internal Revenue Collec-
tor's deed, conveying real estate under $$
3186-3199, R. S. of U. S., to be sufficient to
give the deed validity, must show a demand by
such collector upon the person liable to pay
the tax and neglect or refusal after such de-
mand. Brown v. Goodwin et al., exrs. 494
23 Where there are several assignees for the
benefit of creditors all must join to convey the
title to the property; hence where one, after
having accepted, renounces and fails to join in

reserve it; that it is a convenience is not suf-
ficient. Dales v. Ceas.
400

See CONTRACTS, 21; DEEDS, 6.

EJECTMENT.

1 In an action of ejectment for dower, the
complaint averred that D. was the husband of
the plaintiff at, and for many years next pre-
vious to his death; that he died May 31, 1874;
that at the time of his death, and for many
years prior thereto, he was seized in fee simple
and in possession of the premises described
therein; that the plaintiff was entitled to one
undivided third part of such premises, for her
life, as her reasonable dower; and that the
defendant was in the actual possession of the
premises, and wrongfully withheld from her
the possession of such third part. Held, on
demurrer, that the facts averred were suffi-
cient to constitute a cause of action. Draper
v. Draper.
153

2 The plaintiff, in support of his title, at-
tempted to prove a statute foreclosure. The
affidavit of publication was defective. Held,
That oral evidence was not admissible to sup-
ply such defect in the affidavit; nor is such
evidence competent with regard to any of the
affidavits mentioned in 2 R. S., m. p., 547, § 14
(relating to statute foreclosures). Mowry v.
Sanborn.

209

See CORPORATIONS, 10, 11; EASEMENT, 3;
FIRE INSURANCE, 1; LEASE, 3, 17; MARRIED
WOMEN, 7; NEW YORK CITY, 6; SURETY-
3.
SHIP,

EVIDENCE.

1 In an action to recover for injuries received
by reason of a defect in a sidewalk, the acci-
dent happening on Saturday, evidence as to
the condition of the walk on Monday is admis-
sible. De Forest v. City of Utica.
11

2 Where the injured party is a pregnant wo-
man, and at her confinement there is a mal-
position of the child, it is a question for the
jury whether such malposition was occasioned
by the accident, and if they find it was, they
are to consider it in estimating the damages,
and evidence in relation to the additional suf-

fering at childbirth caused by such malposition
is admissible.

ld.

5 Where the defence to a promissory note is a
want of consideration, evidence that the payee
was pecuniarily embarrassed and without
means is inadmissible. Nicholson v. Waful. 55
6 It is not necessary that a memorandum
produced to refresh the recollection of a wit-
ness or to serve as testimony, should be the
first or original note of the fact. Wilson v.
| Knapp et al.

84

7 Section 399 of the Code, which relates to
testimony in cases where an executor is a
party, makes no distinction between cases
where parties are called as witnesses in their
own behalf or in behalf of a co-defendant, or
cases where they are jointly and severally
liable. Alexander v. Dutcher et al. 114

8 In an action to foreclose a mortgage, evi-
dence to show that an appearance for the
present plaintiff in an action to foreclose a
prior mortgage, by which it is claimed his
rights are barred, was unauthorized or forged,
is competent. Ferguson v. Crawford et al. 116
9 Evidence of a resolution passed by the Com-
mon Council after an accident, ordering the
removal of the bridge, and of its removal in
accordance therewith, is admissible as tending
to show authority to remove the bridge before
the accident, and responsibility for neglecting
to do so. Sewell v. City of Cohoes.
143

10 Parol evidence as to the acceptance and
payment of drafts which have been destroyed
by the witness is admissible where such de-
struction is not fraudulent, although inten-
tionally done. Steele et al. v. Lord. 166

11 Evidence of private transactions and decla-
rations between a defendant and a third per-
eon is inadmissible as against the plaintiff,
where plaintiff is not a party thereto or to be
affected thereby. Matthews v. Smith et al. 167
12 Where by reason of defendant's death plain-
tiff could not prove by his own oath that he
bought certain railroad stock, relying upon the
representations of the deceased, it was proper
to prove that he had no knowledge of the
company's stock and finances from other per-
sons than the deceased and his son-in-law. Id.
13 Where plaintiff claims that he bought the
stock of defendant relying upon misrepresenta- |
tions made by defendant as to the amount of
land owned by the company, evidence of the
market value of the stock, at the time of sale,
is immaterial and incompetent.
ld.

14 Courts cannot take judicial notice, without
proof, of the width of streets or sidewalks in
the city of New York, or of any fact connected
therewith not generally understood, or of the
ordinances of the city establishing them and
prescribing their width, limits and extent.
Porter v. Waring.
207

18 Although non-professional witnesses cannot
express an opinion on the question of sanity,
they may be examined as to matters within
their observation bearing upon the competency
of testator, and may characterize as rational
or irrational, in their opinion, the acts and
declarations to which they testify.
ld.

19 Testimony of a witness who has never done
any teaming himself, but who knows the value
of the services of horses, &c., as to the value
of teaming as described in testimony he has
heard, is admissible. Potter et al. v. Carpenter
et al.
249

20 In an action against an executor, evidence
which may be objectionable under § 399 of the
Code will be admitted unless objections under
that section are made. Where such objections
are not made on the trial they are waived.
Clark v. Bruce.
261

21 A witness who is an attorney of long stand-
ing, and who has examined professionally old
and new writings in relation to their genuine-
ness, is not competent to give an opinion as an
expert as to the age of a writing.

Id.

23 He also, from hearing them described, was
allowed to testify to their loss in weight, and
difference in value per head. Held, Error. Id.
24 Where in an action to recover a balance due
for labor and services, etc., plaintiff testifies
that certain receipts in full, which have been
introduced in evidence, were given at defend-
ant's request to be used in settlement with one
K, his partner, and defendant testified that he
has no partner, evidence that K. has sued de-
fendant, claiming to have been his partner, is
competent. Hickler v. Leighton.

280

26 The question of insufficiency of evidence in
Justice's Court cannot be raised unless the
ground is specifically stated in notice of ap-
peal. Beardsley v. Harrold.
293

27 Evidence that a release of a cause of action
was obtained by false and fraudulent repre-
Gould v. Cayuga
sentation, is competent.
Co. Nat. Bk.
297

28 A writing executed long anterior to and not
connected with the matters in suit, and con-
sisting of words, letters, and figures about
whose meaning there is a conflict in the testi-
mony, cannot be used to explain the meaning
of similar words, letters and figures in a
writing which is the subject of the contro-
versy. Mumby v. Jackson.

312

29 Evidence tending to explain evidence which
has been given by the other party is competent,
although not responsive to the question. Id.

30 A communication to an attorney of facts
upon which to base an action for breach of
promise is privileged. Armstrong v. The
People.
323

31 In an action upon a promissory note, where
the defence is forgery or an alteration of such
note, evidence tending to show that the whole
body of the note, as well as the signature, is in
the handwriting of one of the defendants, is
admissible. Haughey v. Wright et al. 358
32 Under $399 of the Code of Procedure,
proof that no personal transaction took place
with deceased is inadmissible.
ld.

33 Where the issue is on the question of pay-
ment of a mortgage debt, statements of third
persons, not parties, touching such payment
are inadmissible, although such persons were
at the time in possession of the mortgaged
premises. Foote v. Beecher.
396

34 Proceedings in bankruptcy may be proved
by copies of the records of the Bankruptcy
Court, certified by the clerk under the seal of
the Court. Turnbull, Jr., v. Payson, assignee.
405

35 No foundation is needed for evidence as to
the usual mode of marriage in a foreign coun-
try. Wattrich v. Freedman.
439

36 Where a party, acting as the agent of an-
other, lends money, and takes a note payable
to his principal or bearer, and afterwards buys
the note and dies, in an action on the note
brought by his administratrix, a defendant
will not be permitted to testify to a conversa-
tion or a personal transaction with the de-
ceased at the time the note was given, for the
purpose of establishing the defence of usury.
Jackson, adm'r., v. McLure et al.
448

37 Where, before the direct examination of a
plaintiff is finished, one of the defendants
dies, the plaintiff's evidence already taken is
not thereby rendered incompetent as against
the survivor. Comins v. Hetfield.

450
38 Evidence of the taking and using of bridges
and trestle-works by a railroad company is
competent as tending to show an acceptance
of the work, though there is an agreement
with the contractor that in case of a difference,
a third person should decide.

ld.

to give his opinion as to the genuineness of
the signature of defendant's intestate, that
intestate had presented instruments for dis-
count at the bank where the witness was
teller. Bardin v. Stevenson.
554

42 Proof of admissions made by intestate, near
the time when the note in suit bore date, that
he had borrowed of plaintiff $1,000 at six per
cent. interest (the amount of the note in suit),
is admissible as corroborative of competent
evidence of the genuineness of such note. ld.

43 The ordinances of the city are admissible
upon the question of negligence. City of
Rochester v. Montgomery.
573

As to evidence in different classes of actions,
see those titles, as follows: ASSAULT AND BAT-
TERY; BASTARDY, 1; CONTRACTS, 10, 18,
19, 23; CREDITOR'S BILL, 7; CRIMINAL CON-
FORGERY; GIFT, 5; LIFE INSURANCE, 6, 7;
VERSATION, 1, 2; DowER, 1; ELECTIONS;
MARINE COLLISION, 3; MARRIAGE, 4; MORT-
GAGE, 24, 25, 26; NEGLIGENCE, 13; RE-
PLEVIN, 2; SEDUCTION, 2, 4, 5; SLANDER,
2, 3, 4; SPECIFIC PERFORMANCE, 4; SUM-
MARY PROCEEDINGS, 2.

See also AGENCY, 4, 8; COMMON CARRIERS,
11; DEPOSITIONS; PAYMENT, 3; PERSONAL
PROPERTY; REAL ESTATE.

3 The Board of Trustees of the village of
Gloversville takes the place of the Board of
Commissioners of Excise in other villages un-
der the general law, and is subject to the ex-
cise laws, except as modified by the charter.
Id.

4 Chapter 444, Laws of 1874, relating to the
election of excise commissioners in towns, does
not affect the powers of the Board of Trustees
of the village of Gloversville, and where such
village board has refused a license to a party, a
license from the town board is no protection

to him.

Id.

5 No license can be granted under Chap. 175,
Laws of 1870, to sell strong and spirituous
liquors and wines in quantities less than five
gallons at a time, to be drank on the premises,