deceased, and from an order denying plaintiff's motion for a new trial, he appeals. Reversed.

Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.

Gormly J. Sproull, of New York City (Herbert H. Kellogg, of. New York City, on the brief), for appellant.

Henry C. Frey, of Jamaica, for respondents.

THOMAS, J. The witness Livett was the attorney for the testatrix and drew the will attacked upon grounds of testamentary incapacity and undue influence. Several items of his testimony are: (1) His conversation with her when he was retained; (2) that he had three conferences with her relating to the preparation of the will and its execution, at the first and second of which another person was present, and that no other person than the testator gave any data, or facts, or instructions with reference to the preparation of the will or its contents; (3) what was said and done by her in the presence of the witnesses and others, in which he was not shown to have participated, when the will was executed; (4) his identification of the will and her signature; (5) that he had read the will and draft to her a few days before; (6) that he had subsequent conversations with her on other subjects involving business relations, in the presence of third parties, and what he told her; (7) that he prepared another draft, or changed the first draft, at the suggestion of the testatrix, and that no one else was present when suggestion of the change in the will was made; (8) that her acts and conversation impressed him as rational; (9) that he had no difficulty whatever in making himself understood by her, and always got sensible answers in reply to his questions.

[1] So the attorney laid bare his relations to her in the several matters for which he was retained, even to showing that she alone gave him the data for the will, and used the communications from one to the other to base thereon his opinion of her sanity and her ready understanding of his communications and sensible answers. What she communicated in words, in actions, in mental alertness, in appearance, he disclosed. He could, under the ruling, have told all that he did, and declared her statements irrational. I will not discuss whether each and every item of evidence was so hurtful as to require a reversal; but as to all evidence of communications from one to another in the course of their relations as client and attorney, and his judgments therein, he was incompetent by section 835 of the Code of Civil Procedure. Matter of Cunnion, 201 N. Y. 123, 94 N. E. 648, Ann. Cas. 1912A, 834. That authority would also condemn his testimony of what she said at the time of the execution of the will.

[2] His statement that no other person gave him data, facts, or instructions with reference to the preparation of the will, or its contents, is inadmissible, at least in connection with other questions. That item implies this: Some person did furnish him the

data. No other person than she gave it to him. Therefore she furnished the information. In exculpating others, she is shown to have made the necessary communications. He could as availably. have stated that none of the persons accused of undue influence furnished data.

The judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur.

(152 App. Div. 709.)

MEYER V. NASSAU ELECTRIC R. CO.

(Supreme Court, Appellate Division, Second Department. October 4, 1912.) 1. DAMAGES (§ 132*)-EXCESSIVENESS-PERSONAL INJURIES.

Plaintiff, 32 years old, received personal injuries through defendant's negligence, making him wholly deaf in his right ear and aggravating a previous catarrhal condition of his left ear, impairing its hearing 30 or 40 per cent. Ths condition was progressive, and would probably result in total deafness. Before the accident plaintiff could hear ordinary conversation and manifested no impairment of his hearing. Held, that a recovery of $5,000 was not excessive.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 178, 372-385, 396: Dec. Dig. § 132.*]

2. EVIDENCE (§ 377*)—Best AND SECONDARY EVIDENCE-Private Memoranda. In an action for personal injuries, the card record of the hospital where plaintiff was treated was properly excluded, where it was made by persons other than those who made the examination, and at most could have raised only a doubt as to whether plaintiff was examined by the physician who testified that he made such examination, and where the physician indicated by the card refused to identify plaintiff or dispute his testimony that he did not make the examination.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 1647; Dec. Dig. 377.*]

Appeal from Trial Term, Kings County.

Action by Henry W. Meyer against the Nassau Electric Railroad Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Argued before HIRSCHBERG, BURR, THOMAS, WOODWARD, and RICH, JJ.

D. A. Marsh, of Brooklyn, for appellant.

Martin T. Manton, of Brooklyn (William H. Griffin, of New York City, on the brief), for respondent.

WOODWARD, J. No question is raised upon this appeal that the defendant negligently operated one of its trolley cars, coming into collision with the plaintiff's wagon, throwing him out. There is likewise no question of contributory negligence raised, and it is not seriously questioned that the plaintiff received some injuries as the result of the collision. It is urged, however, that the judgment for $5,000 is excessive, and some suggestion of error is made in reference to the rejection of certain evidence and the refusal of the court to charge a request made by the defendant.

[1] There was evidence in the case that the plaintiff, 32 years

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 137 N.Y.S.-34

of age at the time of the accident, received an injury to his head, manifesting particularly in his right ear, and that he became wholly deaf in that ear within a few days of the accident, and that the hearing of his left ear shows an impairment of 30 or 40 per cent., and that the condition is progressive, and will probably result in total deafness. It was likewise shown by competent evidence that the plaintiff could and did hear ordinary conversation at all times prior to his injury, with no manifestation of impairment of his hearing. The defendant introduced some testimony tending to show that the plaintiff had chronic catarrhal impairment of the inner ear, such as is common in this climate, and that this condition might account to some extent for the deafness; but the jury were carefully instructed upon this point, and we think the evidence is sufficient to establish that the deafness in the right ear is directly due to the accident, and that the impairment of the hearing of the left ear is due to the same cause, aggravating the previous catarrhal condition. While a smaller verdict might have satisfied this court, the amount is not so far in excess of what reasonable men might properly conclude as to require this court to intervene.

Under the evidence as it stood at the close of the case, we are of the opinion that the court could not properly have charged the request of the defendant that the jury could not award any degree of damages for the impairment of the hearing of the left ear.

[2] We are also of the opinion that it was not error for the court to exclude the card record of the hospital where the plaintiff was treated. The testimony indicates that there was an error in the record; that it was made up by persons other than those who made the examination, and at most it could only have raised a shadow of a doubt as to whether the plaintiff was examined by the physician who was upon the stand, and who testified that he had made such examination. The defendant called the physician who was indicated by the card, and he refused to identify the plaintiff, or to dispute the plaintiff, who declared that he had never seen him before. We think the evidence was properly excluded.)

The judgment and order appealed from should be affirmed, with costs. All concur.

(77 Misc. Rep. 90.)

In re BAKER.

(Surrogate's Court, Kings County. May, 1912.)

1. USURY (8 22*)—TransACTIONS INVALID-NATURE AND FORM OF TRANSAC

TIONS.

An assignment of a legacy of $2,000 was declared to be as collateral security for the note given by the assignor for $1,980. The note contained no obligation to pay interest; but the assignment described it as payable on demand, with interest at 6 per cent. and contained words of defeasance upon payment of the promissory note with accrued interest, and the assignee was given power to enforce payment of the legacy, and to retain therefrom a sufficient sum to pay the note, with interest thereAt the same time a check for $2,000, drawn to the order of the asFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

on.

signor and indorsed to the assignee, was paid in cash, from which a "discount" of $300 was retained by the agent of the assignee and paid to the assignee. The legatee received in exchange for assignment, note, and check $1,275. Held that, the lender having received notice that his bank account was credited with the $300 two or three days after the charge of $2,000, the transaction was a usurious loan, and the legacy should be paid to the legatee.

[Ed. Note.—For other cases, see Usury, Cent. Dig. § 41; Dec. Dig. § 22.*] 2. USURY ( 146*)-FORFEITURES RESTITUTION.

To avoid a forfeiture for usury, under General Business Law (Consol. Laws 1909, c. 20) § 376, there must be an actual and unconditional surrender of the usurious premium, and one who proposes restitution only if the usurious interest shall be established is not entitled to release; and an offer by the assignee of a legacy, holding it as collateral security, without prejudice, to adjust the matter by payment of a sum reached by subtracting from the usurious premium the amount of interest unpaid on the loan does not avoid the forfeiture.

[Ed. Note. For other cases, see Usury, Cent. Dig. §§ 437-439; Dec. Dig. 146.*]

3. WILLS (§ 566*)-CONSTRUCTION-PROPERTY BEQUEATHED "ALL MONEYS IN ANY BANKS."

Moneys deposited by the son of testatrix to his individual account are not included in a bequest of "all moneys in any banks' deposited in my name for my benefit," though a part of the sum so deposited had been collected by the son as agent of testatrix; and where the son, as executor, accounts for the amount of certain checks drawn on the account to the order of testatrix, which checks she held without presentation for payment, the assets represented by the checks should be distributed as part of the residue of her estate not specifically bequeathed.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 12382, 1239; Dec. Dig. § 566.*]

Judicial settlement of the account of Charles J. Baker, as executor of the last will and testament of Louisa A. Guck, deceased. Decree entered.

John J. Lordan, of New York City, for objector.

James A. Gray, of Jamaica, for claimant.

Ronald K. Brown, of New York City, for executor.

S. M. & D. E. Meeker, of Brooklyn, for legatee Daniel J. Baker. Warner W. Westervelt, of New York City, for legatee William H. Baker.

William E. Butler, of New York City, special guardian.

KETCHAM, S. [1] One of the legatees, having assigned his legacy, claims that the assignment was made to secure a loan to him from the assignee, and that the loan was usurious. The assignee insists that the assignment was absolute, and not by way of security, but that, if the assignment be found to have been incident. to a loan, the transaction was free from usury. The finding will be that the transaction was a loan. This legatee executed and delivered an assignment to the loaner of his legacy of $2,000, with his promissory note for $1,980, and at the same time a check for $2,000, drawn to the order of the legatee in behalf of the assignee, was indorsed by the former and was paid in cash by the trust com•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

pany on which it was drawn. This sum was then used to make certain payments, which will be specified. The note was made payable on demand, and contained no obligation to pay interest; but the assignment was declared to be made as collateral security for the promissory note, which, with other particulars, was described as payable on demand, with interest at 6 per cent. per annum. The assignment contained words of defeasance "upon payment of the said promissory note, with accrued interest," and it gave to the lender power to enforce the payment and to retain from its proceeds "a sufficient sum to pay the said promissory note, with the interest thereon." The legatee received in exchange for these papers $1,275. The transaction had been promoted by several persons, who must be regarded as his agents. From the $1,275 the legatee paid to two of these persons, respectively, $50 and $140. From the proceeds of the $2,000 check there were taken, without dissent by the legatee, $300, called by one of the witnesses "discount" for the lender, and retained by his agent, $20 retained by the assignee's agent to cover the transfer tax upon the legacy, $120 retained by the assignee's agent to indemnify his principal for any loss of interest on the legacy, if the same were not paid when due, $120 for one of the legatee's agents, $90 for another, and $75 for the person who acted in the assignee's behalf. The $300 was thereafter paid to the loaner under circumstances to be described.

Among these exactions, however revolting, the retention of $300 by the loaner's agent, with its subsequent payment to the loaner, is the only one which permits inquiry as to a possibly usurious character. The lender testifies that at first he only authorized his agent to purchase for him an inheritance; that his account in the trust company, of which the agent was the local manager, was thereafter charged with $2,000; that he knew nothing about the charge; that it was made subsequently to the transaction, or it may have been on the day of the transaction (evidently meaning his transaction with the assignor legatee). He then says that his bank account was credited with $300 two or three days after the charge (of $2,000), and that he received notice of the credit. He says that the $300 was credited to him "on account of this transaction"; that he inquired as to the nature of the credit, and "learned it was on this transaction." Again he testifies, as to the credit of $300, that it was "in this transaction." Throughout his testimony it is apparent that the witness, by the words "this transaction," meant the transaction between himself and the legatee, in which his money was paid to the legatee, and in which the legatee delivered his note and assignment. Although the lender testifies that he authorized only the purchase of an inheritance, the note and the assignment were received and retained by him. He received interest upon the note for the first six months of its life at the lawful rate, and at the time when he was advised of the credit to him of $300 on the transaction he well knew that the transaction had taken the form of a loan. He could not beguile himself with any fancy that the $300 was paid to him by any person other