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and 120 New York State Reporter
that, just before its execution, it was also A party held guilty of contempt, under Cole
agreed that the builder should be given certain Civ. Proc. $S 2412, 2457.-In re Backus (Sup.)
old materials.-Abramson-Engesser Co. v. Me-638.
Cafferty (Sup.) 185.

A defendant, ordered to produce books, har.
Oral evidence held admissible to explain aming given no valid reason for refusal to produce
biguous phrase in contract of sale.- New York some of them, may be fined for contempt.-
House Wrecking Co. v. O'Rourke (Sup.) 1116. Friedman v. Newman (Sup.) 735.
$ 8. Opinion evidence.

A fine for contempt, based on loss, held not
Opinions that sheathing to prevent earth from authorized, in the absence of proof of actual
falling into trench was not properly constructed, loss.-Friedman v. Newman (Sup.) 735.
and that it was not a safe place to work, held Judgment debtor held not guilty of contempt
inadmissible.--Winters v. Naughton (Sup.) 439. in violating order, issued in proceedings supple-

Veterinary surgeon, examining a horse after mentary to execution, forbidding disposition of
injury, held competent to testify to its previous property, which was not serred.-Corde
value.-Perine v. Interurban St. Ry. Co. (Sup.) Laughlin (Sup.) 795.
479.

L’nder Code Civ. Proc. $ 2038, the court had
A physician, who has attended plaintiff in an

no jurisdiction to release a debtor, imprisoned
action for personal injuries, may testify as to

for failure to appear and answer in supple
probable result of plaintiff's present physical mentary proceedings, on habeas corpus, with-
condition.-Rosenblatt v. Joseph M. Cohen out notice to the creditors procuring his in-
House Wrecking Co. (Sup.) 801.

prisonment.--People v. Jelody (Sup.) 837; Lery

v. Asmus, Id.
In an action for injury to a railroad employé
by a locomotive being started up while he was
under it, cleaning out its ashpan, held, that a EXECUTORS AND ADMINISTRATORS.
witness may not testify that certain rules are
necessary to prevent such an accident.-Lane
v. New York Cent. & H. R. R. Co. (Sup.) 947. See "Descent and Distribution”; “Wills.”

Testamentary trustees, see “Trusts."
$ 9. Weight and sufficiency.

Testimony as to transactions with decedents, se
Evidence establishing a prima facie case is "Witnesses," $ 1.
sufficient to support a verdict, when not op-
posed by controverting evidence from defend- $ 1. Collection and management of es-
aut-Klein v. East River Electric Light Co.

tate.
(Sup.) 164.

The indorsement by one of two administra-

tors of a check drawn to their order huld not
EXAMINATION.

to render indorser jointly liable for the otber's
conversion of the money thus obtained.-Palmer

v. Ward (Sup.) 9.M.
Of expert witnesses, see "Evidence," $ 8.
Of witnesses in general, see “Witnesses," 8 2.

An administratrix held to be jointly liable
with her coadministrator, where she signed

joint checks with him, thereby permitting him
EXCEPTIONS.

to convert money of the estate.-Palmer y.

Ward (Sup.) 990.
Necessity for purpose of review, see “Appeal,”

Sureties may consent to become liable for two
8 3.

administrators, under an arrangement that one
Taking exceptions at trial, see "Trial," $ 2.

should do no more than sign all papers pre-

sented by the other, and in such case the for-
EXCESSIVE DAMAGES.

mer cannot be held in default as to the sore

ties for acting accordingly.-Palmer v. Ward
See "Damages," $ 3.

(Sup.) 990.

Expense of legal services to esecutor and
EXCISE.

trustee apportioned between the estates bene

fited.-Iu re Rowe (Sur.) 253.
Regulation of traffic in intoxicating liquors, see
"Intoxicating Liquors.”

§ 2. Allowances to surviving wife, hus-

band, or children.

Surviving husband refused money allowance
EXECUTION.

where articles of his wife's estate exempt from

inventory were not in existence when she died.
See "Attachment."

-In re Keough's Estate (Sur.) 807.
Exemptions, see "Exemptions."

8 3.

Actions.
$ 1. Supplementary proceedings.

A judgment and return of execution unsatis-
Under Code Civ. Proc. 88 2209, 2273, 2457, fied, in an action by an administrator on a note
held, that proceedings to punish a contempt in deposited by the surrogate with a trust com-
supplemental proceedings must be had in coun- pany, under Code Civ. Proc. $ 2395, held not to
ty where judgment debtor was examined.-In re support a judgment creditor's action.-Ditmas
Backus (Sup.) 638.

v. McKane (Sup.) 1083.

1

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A judgment held not validated by acts subse-

FIDELITY INSURANCE.
quent to it. Code Civ. Proc. $ 2595,-Ditmas v.
McKane (Sup.) 1083.

See “Insurance," $8 4, 10.
§ 4. Accounting and settlement.

Suit held to have been properly brought by
sureties of administrators against the latter

FILING.
and their successor, for an accounting, distribu-
tion, and other relief.–Palmer v. Ward (Sup.) Record on appeal, see “Appeal,” & 4.
990.
$ 5. Liabilities
administration

FINDINGS.
bonds.
Evidence held to sustain a finding that an Review on appeal, see "Appeal," $ 6.
administratrix applied for and accepted letters
jointly with another on the understanding of
the sureties that her conuection with the ad-

FINES.
ministration should be merely nominal.-Palm-
er y. Ward (Sup.) 990.

For contempt in supplementary proceedings, see

"Execution," $ 1.
EXEMPLIFICATIONS.

FIRE INSURANCE.
As evidence, see “Evidence," § 6.

See "Insurance,” $$ 7, 8, 10.
EXEMPTIONS.

FIRES.
11. Waiver or forfeiture.

Fire department in city, see "Municipal Corpo-
Surety on bail bond held not estopped to

rations," $ 1.
laim property exempt from execution as pur-
chased with pension money.-King v. Warren
(Sup.) 609.

FISH.
EXPERT TESTIMONY.

Laws prohibiting possession of fish taken out-

side of state during closed season as interfer-

ing with interstate commerce, "Com-
In civil actions, see “Evidence," $ 8.

merce," $ 1.

Validity of fish laws as denial of due process
EXPLOSIVES

of law, see “Constitutional Law," $ 6.
Person accidentally exploding blast of dyna-

Laws 1900, pp. 30, 31, c. 20, $$ 40, 60, held
nite held not chargeable with negligence in fa il applicable only to trout' taken in the state.-
ng to first examine locality to ascertain effect People v. A. Booth & Co. (Sup.) 272.
f previous blast.-Jurphy v. Hallinan (Sup.)
27.

FLAGS.
FACTORS.

Constitutionality of law prohibiting mutilating,
See "Brokers.”

defacing or casting contempt on flag, see

"Constitutional Law," $8 2–4.
FEES.

FOOD.
Of attorney, see "Attorney and Client,” $ 3.

The object of Agricultural Law, Laws 1893,
FELLOW SERVANTS.

p. 667, c. 338, 88 50-52, to prevent injury to

health by penalizing the manufacture of vine-
see "Master and Servant," $ 2.

gar which is not made from pure apple juice,
held not defeated by the use of pure water to

reduce the acid to vinegar.-People v. Heinz
FERRIES.

(Sup.) 141.

Under Agricultural Law, Laws. 1893, p. 667;
$1. Regulation and operation.

c. 338, § 50, defining the term “cider vinegar,
Where a company operating a ferryboat moors the word "pure” means "free from mixture or
te boat and keeps open the gate, it thereby in- contact with that which vitiates or pollutes.”—
rites a passenger to embark.-Dougherty v. New People v. Heinz (Sup.) 141.
York Cent. & H. R. R. Co. (Sup.) 746.

A complaint in an action for a penalty for
Evidence, in an action by a passenger injured keeping and offering for sale adulterated vine-
n attempting to board a ferryboat, held to sus- gar held sufficient. under Agricultural Law,
ain a verdict for plaintiff.--Dougherty v. New Laws 1893, pp. 667, 668, c. 338, 88 50-53.-
York Cent, & H. R. R, Co. (Sup.) 746.

State v. Windholz (Sup.) 1015.

see

and 120 New York State Reporter
FORCIBLE ENTRY AND DETAINER. I the difference between the value of the stock, it

the representations had been true, and the ac-
$ 1. Civil liability.

tual value at the time of the sale.-Benedict 1.
Petition in summary proceedings, under Code Guardian Trust Co. (Sup.) 370.
Civ. Proc. $ 2235, held sufficient.--Mauterstock Evidence held not to warrant a judgment for
v. Williams (Co. Ct.) 804.

plaintiff in an action for damages for fraud and
Where, in summary proceedings, defendant fraudulent representations.-Mutual Alliance
files an answer and a jury is drawn, an objec-Trust Co. v. Greenberger (Sup.) 729.
tion to the sufficiency of the allegation of the
interest of the petitioner is waived.-Mauter-
stock v. Williams (Co. Ct.) 804.

FRAUDS, STATUTE OF.
Admissibility of evidence on the part of de-

§ 1. Promises to answer for debt, de-
fendant in summary proceedings determined.-
Mauterstock v. Williams (Co. Ct.) 804.

fault, or miscarriage of another.
The promise of the purchaser of a business to

assume notes of the seller held uot a promise
FORECLOSURE.

to answer for the debt of another, within the

statute of frauds.--Lyon v. Clochessy (Sap.)
Of mortgage, see “Chattel Mortgages," $ 1;

215.
"Mortgages," $ 2.

§ 2. Operation and effect of statate.

Parol agreement in consideration of marriage
FOREIGN CORPORATIONS. held, after performance by husband, taken out

of statute of frauds, and valid against hrs
See "Corporations," $ 6.

band.-Kramer v. Kramer (Sup.) 1:29.

§ 3. Pleading, evidence, trial, and re-
FOREIGN INSURANCE COMPANIES.

view.

In order to be available as a defense, tbe
See "Insurance," $ 1.

statute of frauds must be pleaded.-Kramer T.

Kramer (Sup.) 129.
FORFEITURES.

In an action on a lease for 10 years, plainti:
held entitled to require that the complaint

should allege whether the lease was oral or in
of insurance, see "Insurance," $ 4.

writing.-Rockey v. Haslett (Sup.) 320.
FORGERY.

FRAUDULENT CONVEYANCES.
Recovery against bank on forged paper, see
"Banks and Banking," 88 2, 3.

8 1. Transfers and transactions invalid.

A voluntary conveyance made by a wife to

her husband, leaving her insolvent, was fraud-
FORMER ADJUDICATION. ulent and void as against one who, relying on

the wife's ownership of the property, had per
See "Judgment," $$ 4, 5.

formed labor thereon.- Multz v. Price (Sup!

480.
FORMS OF ACTION.

Where husband actually owned property, title

to which was in his wife, he could not, on ac-
See “Action," & 1; "Ejectment": "Replevin"; count thereof, create indebtedness in his own
"Trespass," § 2; "Trover and Conversion." favor against his wife.- Vultz v. Price (Sup.

480.
FRANCHISES.

§ 2. Remedies of creditors and parchase
Taxation of, see “Taxation," 88 1-3.

In a suit to set aside conveyance between

husband and wife as fraudulent, evidence had
FRAUD.

insufficient to support a finding that defendant

wife was solvent after making the conrerance.
See "Fraudulent Conveyances."

- Multz v. Price (Sup.) 480.
By partnership, see “Partnership," $ 1.

In a suit to set aside a conveyance between
In particular classes of contracts, see "Bills husband and wife as fraudulent, evidence heid
and Notes," § 1; “Sales,” $ 1.

insufficient to sustain a finding that husband pai

wife consideration for the transfer.-lutz v.
& l. Actions.

Price (Sup.) 480.
Where defendant issued a mining prospectus
containing fraudulent representations, on which
plaintiffs relied in purchasing stock, defendant

GAME.
was liable for the damages sustained thereby. See "Fish."
- Benedict v. Guardian Trust Co. (Sup.) 370.

Laws 1502, p. 1236, c. 517, in so far as it
In an action for misrepresentations in the sale provides penalties for possession of snow bent-
of mining stock, plaintiffs damage held to be ings lawfully held prior to its taking effect, had

ers.

"§ 3.

unconstitutional as confiscation without com-

HEIRS.
pensation.-People v. Cohen (Sup.) 475.

Laws 1900, p. 28, c. 20, $ 33, as amended by See “Descent and Distribution."
Laws 1900, p. 1591, c. 741; Laws 1901, p. 225,
c. 91, and Laws 1902, p. 1236, c. 517, held not

HIGHWAYS.
to prohibit possession of snow buntings.-Peo-
ple v. Cohen (Sup.) 475.

See "Bridges"; "Municipal Corporations," $$

5, 6.
GARNISHMENT.

Accidents at railroad crossings, see “Railroads,"

$ 3.
See "Attachment"; "Execution."

As boundaries, see “Boundaries," $ 1.

Dedication, see "Dedication."
GIFTS.

§ 1. Establishment, alteration, and dis-

continuance.
Transfer taxes, see "Taxation," $ 7.

City of New York, in laying out Bloomingdale

road in 1795, held not to have acquired a fee.
GOOD FAITH.

--Mitchell v. Einstein (Sup.) 759.

Bloomingdale road, in city of New York, was
or party asking equitable relief, see “Specific taken under Highway Law, Laws 1787, c. 61.
Performance,

-Mitchell v. Einstein (Sup.) 759.
Of purchaser, see "Bills and Notes," $ 3; “Ven-
dor and Purchaser," § 4.

§ 2. Construction, improvement, and

repair.

Under Laws 1899, p. 108, c. 84, § 10, a town
GRAND JURY.

cannot be bound for necessary repairs of a high-

way, made by the commissioner of highways
See "Indictment and Information."

without the consent of the town board.-Peo-

ple v. Studwell (Sup.) 967.
GUARANTY.

HOMESTEAD.
See “Principal and Surety."
Contradiction of witness in action involving is- See "Exemptions."

sue of guaranty, see "Witnesses," $ 3.
Requirements of statute of frauds, see “Frauds,
Statute of,” $ 1.

HOMICIDE.
$ 1. Construction and operation.

Reasonable doubt, see "Criminal Law," $$ 3, 4.
A boud executed by a wholesaler of liquors
to a brewing company held to cover debts and 8 1. Murder.
obligations incurred before, as well as after, its

Where, in a prosecution for homicide, it ap-
date.-Harvard Brewing Co. v. Sperber (Sup.) pears that defendant and others acted with
289.

a common purpose, in concert one with the oth-

er, to take the life of the deceased, each is
HABEAS CORPUS.

guilty, no matter which did the killing, under

Pen. Code, § 29.-People v. Lagroppo (Sup.)
For release of party guilty of contempt in sup-

116.
plementary proceedings, see "Execution," § 1. 2. Excusable or justifiable homicide.
For release of party refusing to pay alimony, Proof of unnecessary force in repelling an
see "Divorce," $ 2.

assault held insufficient to justify a conviction

of manslaughter.-People v. Taylor (Sup.) 996.
HACKMEN.

§ 3. Evidence.
Laws prohibiting hackmen from permitting

Knife held properly admitted in evidence in
horse or vehicle to stand in street or solicit prosecution for homicide. People v. Lagroppo
ing patronage in street as denial of due (Sup.) 116.
process of law, see "Constitutional Law," 8 6. Direct proof of corpus delicti in prosecution
License of, see "Licenses," $ 1.

for homicide held not necessary to conviction.-

People v. Lagroppo (Sup.) 116.
HARMLESS ERROR.

Evidence in prosecution for homicide consid-

ered, and held sufficient to support a conviction
In civil actions, see “Appeal," 7.

of murder in the second degree.-People v. La-
In criminal prosecutions, see' “Criminal Law," groppo (Sup.) 116.
$ 5; "Homicide," $ 5.

In a prosecution for manslaughter, certain

evidence held irrelevant.-People v. Taylor
HEALTH.

(Sup.) 996.
See "Food."

§ 4. Trial.
Judicial notice of provisions of health depart- Charge in prosecution for homicide held not
ments, see "Evidence," $ 1.

to take from jury the importance of facts given

1184

and 120 New York State Reporter
in the circumstances surrounding the original The right of the wife to support is not a
dispute.-People v. Lagroppo (Sup.) 116.

property right, within the meaning of Doaies

Relations Law, Laws 1896, p. 220, c. 272. $ 21,
§ 5. Appeal and error.

granting a married woman the power of (99)-
Refusal to strike out testimony of witness, tracting in relation to her property as if sbe
in prosecution for homicide, as to declaration

were unmarried.-Carling v. Carling (Sup.) 45.
made by witness at about the time of the kill-
ing, held not cause for reversal.- People v.
Lagroppo (Sup.) 116.

ICE.
Where the court, in a prosecution for homi- See "Waters and Water Courses," $ 3.
cide, submits the case to the jury on the theory
of murder in the second degree, when the evi-
dence was sufficient to justify a conviction of ILLEGITIMATE CHILDREN.
murder in the first degree, the error is not
prejudicial to defendant.-People v. Lagroppo See “Bastards."
(Sun.) 116.
A charge, in a prosecution for homicide, sub-

IMPEACHMENT.
mitting to the jury the question as to whether
the defendant stabbed the decedent in self-de- Of witness, see "Witnesses," $ 3.
fense, does not prejudice the defendant, though
the evidence did not justify the charge.-People

IMPLIED CONTRACTS.
v. Lagroppo (Sup.) 116.

See “Account Stated"; "Contribution"; "Moa-
HUSBAND AND WIFE .

ey Lent"; "Work and Labor."
See "Divorce"; "Dower."

IMPROVEMENTS.
Fraudulent conveyances between, see "Fraud-
ulent Conveyances," $81, 2.

Liens, see “Mechanics' Liens."
Harmless error in suit for separation, see "Ap-On premises demised, see “Landlord and Tez-
peal," $ 7.

ant," $ 4.
Liability of wife for injuries caused by dog Public improvements, see “Municipal Corpo
owned by husband, see “Animals."

rations," $ 3.
Mechanic's lien for materials furnished to hus-
band for use on wife's land, see "Master and

IMPUTED NEGLIGENCE.
Servant," $ 1.
Rights of survivor, see “Executors and Admin-

See “Negligence," 88 3, 4.
istrators," 8 2.
Sufliciency of consideration for agreement to
pay debt of husband or wife, see “Contracts,”

INCUMBRANCES.

Covenants against, see “Covenants," $ 1.
§ 1. Mutual rights, duties, and liabili- On property devised or bequeathed, see "Wills,"
ties.

$ 5.
A wife has no authority to authorize a third
person to enter her husband's dwelling and re-

INDEBTEDNESS.
move his furniture.-Heyert v. Reubman (Sup.)
797.

Of testator, see "Wills," $ 5.
A husband is not liable for necessaries fur-
nished his wife, who, without just cause, has

INDEMNITY.
abandoned him.-Ogle v. Dershem (Sup.) 1101.

See "Guaranty"; "Principal and Surety."
8 2. Marriage settlements.

Evidence held to justify a finding of agree-
ment made in consideration of marriage. -Kra- INDICTMENT AND INFORMATION.
mer v. Kramer (Sup.) 129.

Removal of from public office, see “Records"
$ 3. Separation and separate mainte-

§ 1. Necessity of indictment or pre-
Contract between husband and wife and a

sentment.
third party, made in view of the existing separa-

In view of Liquor Tax Law, Laws 1836, p.
tion of the husband and wife, held to be an at. 76, c. 112, & 34, subd. 3, prosecution of geet
tempted agreement between the husband and of certificate holder for second offense required
wife for her separate maintenance and support.

to be by indictment.--People v. Hoenig (Sup!
-Carling v. Carling (Sup.) 46.

673.
Contract between husband and wife for her § 2. Motion to quash or dismiss, and
separate maintenance and support held not sanc-

demurrer.
tioned by Domestic Relations Law, Laws 1896, An indictment will not be set aside because
p. 220, Č. 272, $ 21, relating to the power of the grand jury received the unsworn testimoni
a married woman to contract.-Carling v. Car- of children under 12 years of age.-People 1.
ling (Sup.) 16.

Sexton (Sup.) 517.

8 i.

nance.

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