14 Such condition is a condition subsequent, the bond, a deed executed by all will not con.
and can only be taken advantage of by a re- vey the title. Brennan et al. v. Willson et al.
entry by the grantor.
Id.

576
15 Although the grant was in violation of the See ADVERSE POSSESSION, 1; CHAMPERTY
statute, possession by the grantee for twenty

AND MAINTENANCE, 2; CONTRACTS, 20;
years is a bar to any one subsequently acquir. COVENANTS; CREDITOR'S BILL, 6; MORT?
ing title to the adjoining upland.

Id. GAGES, 2, 6, 28; SHERIFFS, 6; SURETYSHIP,

1; WILLS, 6.
16 An agreement executed by a grantee of real

DELIVERY.
estate on receipt of his deed, which provides
that he will sell the property at the option of

See COMMON CARRIERS, 9.
either party to the agreement, and divide the
profits equally with the grantor, and that if

DEMURRER.
the property was not sold within one year the

See PLEADINGS.
grantor's interest therein should cease, is not
a defeasance, and the conveyance to the gran-
tee is properly recorded as a deed. Macauley

DEPOSITIONS.
v. Porter.

348 1 A deposition need not be reduced to writing
17 The fact that the grantee advanced money by the judge before whom it is taken, but he
to the grantor upon a note payable in one year may employ an amanuensis for that purpose.

Foster v. Bullock.

353
or sooner if the property should be sold, does
not change the nature of the transaction. Id. 2 The ordinary jurat is not sufficient as a cer-
18 A deed is not necessarily presumed to be tificate ; the certificate must state that the
fraudulent because the husband of the grantee deposition was carefully read over to the wit-
is a brother of the grantor, and is bis agent

ness and subscribed by him in presence of the
for the sale of the property to third persons,

officer.

Id.
and the deed is given at his request, and with 3 In an action brought against a corporation,
out pecuniary consideration. In the absence the deposition of a director of the corporation
of fraud, bad faith, concealment or superior may be taken before trial under $$ 870, 873, of
knowledge on the brother's part, and where the Code of Civil Procedure. The People v.
the deed expresses the intelligent, deliberate The Mutuul Gas Light Co.

478
purpose of the grantor, it is valid and binding.
The parties do not act in the matter as princi-

See EVIDENCE, 39; PERPETUATION OF
pal and agent, but as principals alike; and the

TESTIMONY.
strict rule governing the case of a trustee deal-

DESCENT.
ing with a trust estate does not apply. Mitch-

See MORTGAGE, 29.
ell et al. y. Mitchell et al.

449
19 The requirements of S 1244 of the Code of

DISCHARGE.
Civii Procedure are plain and peremptory, and
while such section continues in force the offi; CREDITOR, 3, 4; SURETYSITIP, 9, 10, 11, 13.

on applicatiov for judgment on the report. 15 Evidence of opportunity alone is not enough
Sparrowhawk v. 'Sparrorohawk.

172 to authorize an inference that adultery bas

been committed, proof of other and suspicious
2 The right to a trial by jury in actions for di- circumstances is necessary. Pollock v. Pollock.
vorce a cinculo, where the adultery is denied,

468
is not taken away by the Code of Civil Pro-
cedure. Butzil v. Batzil.

308 16 The fact that the alleged paramour was

considered to be the wife of plaintiff, and had
3 A reference will not be ordered in such a been addressed as such, will not affect the
case unless a jury trial has been waived. Id. plaintiff unless he had knowledge thereof. Id.
4 In actions for divorce on the ground of | 17 Where such alleged paramour has been
adultery, a bill of particulars cannot ordinarily called by defendant as a witness, the defend-
be necessary to prevent a surprise upon the ant may show that she was mistaken in her
trial. Carduell v. Carduel.
332 testimony, but cannot impeach or assail her.

Id.
5 The settled practice requires that the charges
shall be accompanied with so much particu- See ARREST, 1.
larity of time and place as reasonably to in-
form the defendant of the criminal intercourse

DOWER,
relied upon as the basis of the action. This
may be ordinarily secured by motion to make 1 In an action for dower, where it is sought
complaint more definite.

Id. to establish a marriage, not by direct proof,
6 Alimony pendente lite will not be allowed un-

but by circumstances and acts from which a
less the applicant shows that she has a fair marriage might be presumed, it is error to ex.
prospect of success in the action, and that she

clude a question to one of plaintiff's witnesses
controverts and intends to litigate the matter

as to what they understood from the conduct
set up by the other party. Collins v. Collins.

of the alleged husband and wife toward one
344

another was their relation, and allow a witness
pendente lite is reviewable in the Court of Ap. the house, whether as a wife or servant-
7 A question as to the allowance of alimony for the defendant to answer from what she

saw and heard, how she regarded plaintiff in
peals where the facts are such that upon gen-
eral principles of equity a plaintiff is not en-

cannot be said that the exclusion of affirma-
titled to demand alimony.

Id.

tive proof in her favor, and the admission of

similar negative proof against her, did not
8 Where the plaintiff in an action for divorce prejudice her. Holten v. Holten et al.

14
has obtained an order for alimony, and subse-

See EJECTMENT, 1; MORTGAGE, 29.
quently commences an action for the same
cause in another State, the order for alimony
should be stayed until the abandonment of the

EASEMENT.
latter action. Nichols v. Nichols.

399

1 Where the grantee of a right to lay down
9 A judgment of divorce cannot be attacked and maintain water-pipes across the lands of
collaterally either for error or irregularity. another, the grant not specifying the size of
Wattrich v. Freedman.

439 the pipes nor the place where they are to be
defence was that the husband was a married other place, and of no other size than that
10 In an action for divorce, for adultery, the laid, has exercised his right and laid down the

pipes, he cannot thereafter lay his pipes in any
man at the time of his marriage to the plain. / first selected. Onthank v. The L. S. & M. S.
tiff, and with this limitation the answer ad.

RR. Co.

318
mitted his marriage to plaintiff. Ileld, That
the husband was not competent to testify to 2 The passage of a resolution by the Common
the fact of the prior marriage. Finn v. Hinn. | Council of a city, reducing the width of a

452 street, is an abandonment or surrender of the
11 Where the answer in an action for absolute public right of way over the portion not in-
divorce denies the charge of adultery, a

cluded within the new boundaries thereby

established, which, followed by non-user for
reference to take proof of the facts and re-

St.
port the same to the Court cannot be ordered twenty years, extinguishes such right.

Vincent Asylum v. City of Troy.

386
even upon consent. In such a case the Court
can only order a reference to hear and deter- 3 The city is estopped by its action, followed
mine all the issues. Harper v. Harper. 460 as it was by actual and continued occupation
12 Where counsel fee, disbursements, and costs

under a claim of absolute right, from claiming
are awarded to the plaintiff's attorney in the rights beyond the boundaries of the street is
final decree in an action for divorce, they may substantial and permanent improvements have

settled by its resolution; especially where
be enforced by attachment. Howev. Howe.

Id.
460
13 A refusal to pay the same is a contempt of 4 A right of way will be retained by a grantor
Court.

1

reserve it; that it is a convenience is not suf- ascertaining the truth, there can be no estop-
ficient. Dales v. Ceas.
400 pel.

Id.
See CONTRACTS, 21 ; DEEDS, 6.

3 An order of a surrogate requiring an admin-

istrator to inventory certain bonds as part of
EJECTMENT.

decedent's estate, and made in a proceeding

instituted by one only of the next of kin, can-
1 In an action of ejectment for dower, the

not preclude or estop the administrator from
complaint averred that D. was the husband of claiming such bonds as his own personal prop-
the plaintiff at, and for many years next pre- erty. Young v. Young et al.

109
vious to his death; that he died May 31, 1874 ;
that at the time of his death, and for many 4 Mere silence of a party to whom an account
years prior thereto, he was seized in fee simple has been rendered will not amount to an es-
and in possession of the premises described toppel in pais where the other party has not
therein ; that the plaintiff was entitled to one been led into any course of action or into any
undivided third part of such premises, for her additional liability thereby. Flannagan v.
life, as her reasonable dower; and that the Madden.

176
defendant was in the actual possession of the
premises, and wrongfully withheld from her 5 Holders of preferred stock consenting to its
the possession of such third part. Held, on

issue are estopped from denying its validity.
demurrer, that the facts averred were suffi-

Kent v. The Quicksilver Mining Co. 230
cient to constitute a cause of action. Draper 6 Where the contractor who created the ob-
V. Draper.

153 struction was notified of an action against the
2 The plaintiff, in support of his title, at- city, and failed to defend it, he is concluded
tempted to prove a statute foreclosure. The by the judgment therein as to the liability of
atsidavit of publication was defective. Held, have been urged as a defence, such

as the con-

the city, and as to any matter which might
That oral evidence was not admissible to sup-
ply such defect in the affidavit; nor is such tributory negligence of the plaintiff. City of

573
evidence competent with regard to any of the Rochester v. Montgomery.
affidavits mentioned in 2 R. S., m.p., 547, § 14 See CORPORATIONS, 10, 11 ; EASEMENT, 3;
(relating to statute foreclosures). Mowry v. FIRE INSURANCE, 1; LEASE, 3, 17; MARRIED
Sanborn.

209 Women, 7; NEW YORK City, 6; SURETY-
3 In an action to recover the rents and profits SHIP, 3.
of premises adjudged to plaintiff by a judg-

EVIDENCE.
raent in ejectment, there is no legal objection
to the appointment of a receiver to collect 1 In an action to recover for injuries received
and hold such rents, nor to his acknowledg- by reason of a defect in a sidewalk, the acci-
Inent that he holds subordinate to the plain- dent happening on Saturday, evidence as to
tiff. Sheridan v. Jackson.

443 | the condition of the walk on Monday is admis-
See EXECUTIONS, 4.

sible. De Forest v. City of Utica.

11
2 Where the injured party is a pregnant wo-
ELECTIONS.

man, and at her confinement there is a mal-
1 Ballots cast at an election are the primary, position of the child, it is a question for the
the controlling evidence; but, in order to con- jury whether such malposition was occasioned
tinue them as such, it must appear that they by the accident, and if they find it was, they
have been preserved in the manner and by the

are to consider it in estimating the damages,
officers prescribed by statute, and have not

and evidence in relation to the additional suf.
been so exposed to the reach of unauthorized fering at childbirth caused by such malposition
persons as to afford a reasonable probability

is adinissible,

Id.
of their having been tampered with. Hudson 3 Evidence of particular sales, upon special
V. Solomon.

284

agreements as to credit, is not admissible to

prove a general custom of dealing between
EQUITABLE ASSIGNMENT.

the parties on credit. Higgins v. Murray. 13
See CHECKS, 2, 3, 4.

4 Where the character of a transaction de.

pends upon the intent of the party, it is com-
ESTOPPEL.
petent, when that party is a witness, to in-

Yerkes
1. For the application of the doctrine of equi- quire of him what his intention was.

29
table estoppel there must generally be some

et al. y. Saloman.
intended deception in the conduct or declara. | 5 Where the defence to a promissory note is a
tion of the party to be estopped, or such gross want of consideration, evidence that the payee
negligence on his part as to amount to a con- was pecuniarily embarrassed and without
structive fraud, by which another has been means is inadmissible. Nicholson v. Waful. 55
misled to his injury. Brant v. The Virginia 6 It is not necessary that a memorandum
Coal & Iron Co.

produced to refresh the recollection of a wit.
2 With respect to the title to real property, ness or to serve as testimony, should be the
where the condition of the title is known to first or original note of the fact. Wilson v.
both parties, or both have the same means of | Knapp et al.

84

20

1

7 Section 399 of the Code, which relates to 18 Although non-professional witnesses cannot
testimony in cases where an executor is a express an opinion on the question of sanity,
party, makes no distinction between cases they may be examined as to matters within
where parties are called as witnesses in their their observation bearing upon the competency
own behalf or in behalf of a co-defendant, or of testator, and may characterize as rational
cases where they are jointly and severally or irrational, in their opinion, the acts and
liable. Alexander v. Dutcher et al. 114 | declarations to which they testify.

Id.
8 In an action to foreclose a mortgage, evi- 19 Testimony of a witness who has never done
dence to show that an appearance for the any teaming himself, but who knows the value
present plaintiff in an action to foreclose a of the services of horses, &c., as to the value
prior mortgage, by which it is claimed his of teaming as described in testimony be has
rights are barred, was unauthorized or forged, heard, is admissible. Potter et al. v. Carpenter
is competent. Ferguson v. Crawford et al. 116

et al.

249
9 Evidence of a resolution passed by the Com- 20 In an action against an executor, evidence
mon Council after an accident, ordering the which may be objectionable under $ 399 of the
removal of the bridge, and of its removal in Code will be admitted unless objections under
accordance therewith, is admissible as tending that section are made. Where such objections
to show authority to remove the bridge before are not made on the trial they are waived.
the accident, and responsibility for neglecting | Clark v. Bruce.

261
to do so.
Sewell v. City of Cohoes.

143

21 A witness who is an attorney of long stand-
10 Parol evidence as to the acceptance and ing, and who has examined professionally old
payment of drafts which have been destroyed and new writings in relation to their genuine-
by the witness is admissible where such de- ness, is not competent to give an opinion as an
struction is not fraudulent, although inten- expert as to the age of a writing.

Id.
tionally done. Steele et al. v. Lord. 166

22 A witness who had not seen, but had heard
11 Evidence of private transactions and decla- certain cattle described, was allowed to testify
rations between a defendant and a third per-
eon is inadmissible as against the plaintiff, streets at will for twenty-four hours. Ilud,

to the effect upon them of wandering in the
where plaintiff is not a party thereto or to be Error. Schermerhorn v. Tyler.

272
affected thereby. Matthews v. Smith et al. 167
12 Where by reason of defendant's death plain. 23 He also, from hearing them described, was
tiff could not prove by his own oath that he allowed to testify to their loss in weight, and
bought certain railroad stock, relying upon the

difference in value per head. Held, Error. Id.
representations of the deceased, it was proper 24 Where in an action to recover a balance due
to prove that he had no knowledge of the

for labor and services, etc., plaintiff testifies
company's stock and finances from other per- that certain receipts in full, which have been
sons than the deceased and his son-in-law. Id. introduced in evidence, were given at defend-
13 Where plaintiff claims that he bought the ant's request to be used in settlement with one
stock of defendant relying upon misrepresenta- | K, his partner, and defendant testified that he
tions made by defendant as to the amount of has no partner, evidence that K. has sued de-
land owned by the company, evidence of the fendant, claiming to have been his partner, is
market value of the stock, at the time of sale, competent. Hickler v. Leighton.

280
is immaterial and incompetent.

Id.

25 Evidence that parties for whom the work
14 Courts cannot take judicial notice, without was performed have paid defendant more than
proof, of the width of streets or sidewalks in the contract price, is competent as showing the
the city of New York, or of any fact connected improbability of plaintiff receipting in full for
therewith not generally understood, or of the less than was due.

Id.
ordinances of the city establishing them and
prescribing their width, limits and extent. 26 The question of insufficiency of evidence in
Porter v. Waring.

207 | Justice's Court cannot be raised unless the
15 The ordinances of a municipal corporation ground is specifically stated in notice of ap-

peal. Beardsley v. llarrold.

293
cannot be read in evidence on appeal. Id.
16 In an action by an executor to recover the 27 Evidence that a release of a cause of action
value of property claimed to have been a part

was obtained by false and fraudulent repre-
of testator's estate, evidence as to a conversa-

sentation, is competent. Gould v. Cayugt
tion between testator and witness in relation to

Co. Nat. Bk.

297
such property is inadmissible, although de 28 A writing executed long anterior to and not
fendant was present at such conversation.

connected with the matters in suit, and con-
Horodl v. Taylor.

2:34

sisting of words, letters, and figures about
17 Testimony of declarations by testator a few whose meaning there is a conflict in the testi-
days before his death that he had not disposed mony, cannot be used to explain the meaning
of such property by will, but calculated to dis- of similar words, letters and figures in a
pose of it in his lifetime, is competent in sup- | writing which is the subject of the contro-
port of a claim to it by gift inter vivos. Id. versy. Mumby V. Jackson,

312

29 Evidence tending to explain evidence which to give his opinion as to the genuineness of
has been given by the other party is competent, the signature of defendant's intestate, that
although not responsive to the question. Id. intestate ha presented instruments for dis-

count at the bank where the witness was
30 A communication to an attorney of facts teller. Bardin v. Stevenson.

554
upon which to base an action for breach of
promise is privileged. Armstrong v. The 42 Proof of admissions made by intestate, near
People.

323 the time when the note in suit bore date, that

he had borrowed of plaintiff $1,000 at six per
31 In an action upon a promissory note, where cent. interest (the amount of the note in suit),
the defence is forgery or an alteration of such is admissible as corroborative of competent
note, evidence tending to show that the whole evidence of the genuineness of such note. ld.
body of the note, as well as the signature, is in
the handwriting of one of the defendants, is 43 The ordinances of the city are admissible
admissible. Haughey v. Wright et al. 358 upon the question of negligence. City of

Rochester v. Montgomery.

573
32 Under $ 399 of the Code of Procedure,
proof that no personal transaction took place As to evidence in different classes of actions,
with deceased is inadmissible.

Id. see those titles, as follows: ASSAULT AND BAT-
33 Where the issue is on the question of pay; | 19, 23'; CREDITOR's Bill, 7; CRIMINAL CON-

TERY; BASTARDY, 1; CONTRACTS, 10, 18,
ment of a mortgage debt, statements of third
persons, not parties, touching such payment FORGERY; GIFT, 5; LIFE ÍNSURANCE, 6, 7;

VERSATION, 1, 2; DOWER, 1; ELECTIONS ;
are inadmissible, although such persons were
at the time in possession of the mortgaged

MARINE COLLISION, 3 ; MARRIAGE, 4; MORT-
premises. Foote v. Beecher.

396 GAGE, 24, 25, 26; NEGLIGENCE, 13; RE-

PLEVIN, 2; SEDUCTION, 2, 4, 5; SLANDER,
34 Proceedings in bankruptcy may be proved 2, 3, 4; SPECIFIC PERFORMANCE, 4; Sum-
by copies of the records of the Bankruptcy MARY PROCEEDINGS, 2.
Court, certified by the clerk under the seal of
the Court. Turnbull
, Jr., v. Payson, assignee. See also AGENCY, 4, 8; COMMON CARRIERS,

405 11; DEPOSITIONS; PAYMENT, 3; PERSONAL

PROPERTY; REAL ESTATE.
35 No foundation is needed for evidence as to
the usual mode of marriage in a foreign coun-

439
try. Wattrich v. Friedman.

EXAMINATION OF PARTIES.

See PRACTICE, 12, 20.
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

EXCISE.
the note and dies, in an action on the note
brought by his administratrix, a defendant

1 A provision in a village charter for submit-
will not be permitted to testify to a conversa -

ting the question of license or no license to a

vote of the electors is one which it is compe-
tion or a personal transaction with the de-
ceased at the time the note was given, for the

tent for the Legislature to commit to the peo-
purpose of establishing the defence of usury.

ple of that district. Village of Gloversville v.

138

Howell et al,
Jackson, adm'r., v. McLure et al.

448
37 Where, before the direct examination of a | 2 It cannot be inferred that the provisions of
plaintiff is finished, one of the defendants a village charter in relation to excise, are in-
dies, the plaintiff's evidence already taken is tended to be affected by an amendment to the
not thereby rendered incompetent as against general excise law, where such village has
the survivor. Comins v. Hetfield.

450 never been under the operation of the general
law in that respect.

Id.
38 Evidence of the taking and using of bridges
and trestle-works by a railroad company is 3 The Board of Trustees of the village of
competent as tending to show an acceptance Gloversville takes the place of the Board of
of the work, though there is an agreement Commissioners of Excise in other villages un-
with the contractor that in case of a difference, der the general law, and is subject to the ex.
a third person should decide.
ld. cise laws, except as modified by the charter.

Id.
39 The Court may take the deposition of a
witness, during the trial, even where the wit- | 4 Chapter 444, Laws of 1874, relating to the
ness had been sick for six weeks prior thereto. election of excise commissioners in towns, does
Cole v. Cole.

452