and 120 New York State Reporter
that, just before its execution, it was also
agreed that the builder should be given certain
old materials.-Abramson-Engesser Co. v. Me-
Cafferty (Sup.) 185.
Oral evidence held admissible to explain am-
biguous phrase in contract of sale.-New York
House Wrecking Co. v. O'Rourke (Sup.) 1116.
§ 8. Opinion evidence.
Opinions that sheathing to prevent earth from
falling into trench was not properly constructed,
and that it was not a safe place to work, held
inadmissible.-Winters v. Naughton (Sup.) 439.
Veterinary surgeon, examining a horse after
injury, held competent to testify to its previous
value.-Perine v. Interurban St. Ry. Co. (Sup.)
A physician, who has attended plaintiff in an
action for personal injuries, may testify as to
probable result of plaintiff's present physical
condition.-Rosenblatt v. Joseph M. Cohen
House Wrecking Co. (Sup.) 801.
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
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.
9. Weight and sufficiency.
Evidence establishing a prima facie case is
sufficient to support a verdict, when not op-
posed by controverting evidence from defend-
ant.-Klein v. East River Electric Light Co.
(Sup.) 164.
Of expert witnesses, see "Evidence," § 8.
Of witnesses in general, see "Witnesses," § 2.
Necessity for purpose of review, see "Appeal,"
§ 3.
Taking exceptions at trial, see "Trial," § 2.
EXCESSIVE DAMAGES.
See "Damages," § 3.
Regulation of traffic in intoxicating liquors, see
"Intoxicating Liquors."
See "Attachment."
Exemptions, see "Exemptions."
§ 1. Supplementary proceedings.
Under Code Civ. Proc. §§ 2269, 2273, 2457,
held, that proceedings to punish a contempt in
supplemental proceedings must be had in coun-
ty where judgment debtor was examined.-In re
Backus (Sup.) 638.
A party held guilty of contempt, under Code
Civ. Proc. §§ 2442, 2457.-In re Backus (Sup.)
638.
A defendant, ordered to produce books, hav-
ing given no valid reason for refusal to produce
some of them, may be fined for contempt.-
Friedman v. Newman (Sup.) 735.
A fine for contempt, based on loss, held not
authorized, in the absence of proof of actual
loss.-Friedman v. Newman (Sup.) 735.
Judgment debtor held not guilty of contempt
in violating order, issued in proceedings supple-
mentary to execution, forbidding disposition of
which was not served.-Corde v.
property,
Laughlin (Sup.) 795.
Under Code Civ. Proc. § 2038, the court had
no jurisdiction to release a debtor, imprisoned
for failure to appear and answer in supple-
mentary proceedings, on habeas corpus, with-
out notice to the creditors procuring his im-
prisonment.-People v. Melody (Sup.) 837; Levy
v. Asmus, Id.
EXECUTORS AND ADMINISTRATORS.
See "Descent and Distribution"; "Wills.”
Testamentary trustees, see "Trusts."
Testimony as to transactions with decedents, see
"Witnesses," § 1.
§ 1. Collection and management of es-
The indorsement by one of two administra-
tors of a check drawn to their order held not
to render indorser jointly liable for the other's
conversion of the money thus obtained.-Palmer
v. Ward (Sup.) 990.
An administratrix held to be jointly liable
with her coadministrator, where she signed
joint checks with him, thereby permitting him
to convert money of the estate.-Palmer v.
Ward (Sup.) 990.
Sureties may consent to become liable for two
administrators, under an arrangement that one
should do no more than sign all papers pre-
sented by the other, and in such case the for-
mer cannot be held in default as to the sure-
ties for acting accordingly.-Palmer v. Ward
(Sup.) 990.
Expense of legal services to executor and
trustee apportioned between the estates bene-
fited. In re Rowe (Sur.) 253.
A judgment held not validated by acts subse-
quent to it. Code Civ. Proc. § 2595.-Ditmas v.
McKane (Sup.) 1083.
84. Accounting and settlement.
Suit held to have been properly brought by
sureties of administrators against the latter
and their successor, for an accounting, distribu-
FIDELITY INSURANCE.
See "Insurance," §§ 4, 10.
tion, and other relief.-Palmer v. Ward (Sup.) Record on appeal, see "Appeal," § 4.
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 connection with the ad-
ministration should be merely nominal.-Palm-
er v. Ward (Sup.) 990.
For contempt in supplementary proceedings, see
"Execution," § 1.
FIRE INSURANCE.
See "Insurance," §§ 7, 8, 10.
Fire department in city, see "Municipal Corpo-
rations," § 1.
Laws prohibiting possession of fish taken out-
side of state during closed season as interfer-
ing with interstate commerce,
see "Com-
merce," § 1.
Validity of fish laws as denial of due process
of law, see "Constitutional Law," § 6.
Laws 1900, pp. 30, 34, c. 20, §§ 40, 60, held
applicable only to trout taken in the state.-
People v. A. Booth & Co. (Sup.) 272.
Constitutionality of law prohibiting mutilating,
defacing or casting contempt on flag, see
"Constitutional Law," §§ 2-4.
The object of Agricultural Law, Laws 1893,
p. 667, c. 338, §§ 50-52, to prevent injury to
health by penalizing the manufacture of vine-
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
(Sup.) 141.
Under Agricultural Law, Laws 1893, p. 667,
c. 338, § 50, defining the term "cider vinegar,'
the word "pure" means "free from mixture or
contact with that which vitiates or pollutes."-
People v. Heinz (Sup.) 141.
A complaint in an action for a penalty for
keeping and offering for sale adulterated vine-
gar held sufficient, under Agricultural Law,
Laws 1893, pp. 667, 668, c. 338, §§ 50-53.-
State v. Windholz (Sup.) 1015.
and 120 New York State Reporter
FORCIBLE ENTRY AND DETAINER. | the difference between the value of the stock, if
Petition in summary proceedings, under Code
Civ. Proc. § 2235, held sufficient.-Mauterstock
v. Williams (Co. Ct.) 804.
Where, in summary proceedings, defendant
files an answer and a jury is drawn, an objec-
tion to the sufficiency of the allegation of the
interest of the petitioner is waived.-Mauter-
stock v. Williams (Co. Ct.) 804.
Admissibility of evidence on the part of de-
fendant in summary proceedings determined.-
Mauterstock v. Williams (Co. Ct.) 804.
the representations had been true, and the ae-
tual value at the time of the sale.-Benedict v.
Guardian Trust Co. (Sup.) 370.
Evidence held not to warrant a judgment for
plaintiff in an action for damages for fraud and
Alliance
fraudulent representations.-Mutual
Trust Co. v. Greenberger (Sup.) 729.
FRAUDS, STATUTE OF.
1. Promises to answer for debt, de-
fault, or miscarriage of another.
The promise of the purchaser of a business to
assume notes of the seller held not a promise
to answer for the debt of another, within the
statute of frauds.-Lyon v. Clochessy (Sup.)
245.
§ 2. Operation and effect of statute.
Parol agreement in consideration of marriage
held, after performance by husband, taken out
of statute of frauds, and valid against hus-
band.-Kramer v. Kramer (Sup.) 129.
§ 3. Pleading, evidence, trial, and re-
view.
In order to be available as a defense, the
statute of frauds must be pleaded.-Kramer v.
Kramer (Sup.) 129.
In an action on a lease for 10 years, plaintif
held entitled to require that the complaint
should allege whether the lease was oral or in
writing.-Rockey v. Haslett (Sup.) 320.
FRAUDULENT CONVEYANCES.
§ 1. Transfers and transactions invalid.
A voluntary conveyance made by a wife to
her husband, leaving her insolvent, was fraud-
ulent and void as against one who, relying on
the wife's ownership of the property, had_per-
formed labor thereon.-Multz v. Price (Sup)
480.
Where husband actually owned property, title
to which was in his wife, he could not, on ae-
count thereof, create indebtedness in his own
favor against his wife.-Multz v. Price (Sup.)
480.
§ 2. Remedies of creditors and purchas-
Laws 1902, p. 1236, c. 517, in so far as it
provides penalties for possession of snow bent-
beings lawfully held prior to its taking effect, had
In an action for misrepresentations in the sale
of mining stock, plaintiffs' damage held to
unconstitutional as confiscation without com-
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
to prohibit possession of snow buntings.-Peo-
ple v. Cohen (Sup.) 475.
GARNISHMENT.
See "Attachment"; "Execution."
Transfer taxes, see "Taxation," § 7.
Of party asking equitable relief, see "Specific
Performance," § 3.
Of purchaser, see "Bills and Notes," § 3; "Ven-
dor and Purchaser," § 4.
See "Indictment and Information."
GUARANTY.
See "Principal and Surety."
See "Bridges"; "Municipal Corporations," §§
5, 6.
Accidents at railroad crossings, see "Railroads,"
§ 3.
As boundaries, see "Boundaries," § 1.
Dedication, see "Dedication."
§ 1. Establishment, alteration, and dis-
continuance.
City of New York, in laying out Bloomingdale
road in 1795, held not to have acquired a fee.
--Mitchell v. Einstein (Sup.) 759.
Bloomingdale road, in city of New York, was
taken under Highway Law, Laws 1787, c. 61.
-Mitchell v. Einstein (Sup.) 759.
§ 2. Construction, improvement,
Under Laws 1899, p. 108, c. 84, § 10, a town
cannot be bound for necessary repairs of a high-
way, made by the commissioner of highways
without the consent of the town board.-Peo-
ple v. Studwell (Sup.) 967.
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.
§ 1. Construction and operation.
A bond executed by a wholesaler of liquors
to a brewing company held to cover debts and
obligations incurred before, as well as after, its
date.-Harvard Brewing Co. v. Sperber (Sup.)
For release of party guilty of contempt in sup-
plementary proceedings, see "Execution," § 1.
For release of party refusing to pay alimony,
see "Divorce," § 2.
Laws prohibiting hackmen from permitting
horse or vehicle to stand in street or solicit
ing patronage in street as denial of due
process of law, see "Constitutional Law," § 6.
License of, see "Licenses," § 1.
HARMLESS ERROR.
In civil actions, see "Appeal," § 7.
Reasonable doubt, see "Criminal Law," §§ 3, 4.
81. Murder.
Where, in a prosecution for homicide, it ap-
pears that defendant and others acted with
a common purpose, in concert one with the oth-
er, to take the life of the deceased, each is
guilty, no matter which did the killing, under
Pen. Code, § 29.-People v. Lagroppo (Sup.)
116.
§ 2. Excusable or justifiable homicide.
Proof of unnecessary force in repelling an
assault held insufficient to justify a conviction
of manslaughter.-People v. Taylor (Sup.) 996.
3. Evidence.
Knife held properly admitted in evidence in
prosecution for homicide.-People v. Lagroppo
(Sup.) 116.
Direct proof of corpus delicti in prosecution
for homicide held not necessary to conviction.-
People v. Lagroppo (Sup.) 116.
Evidence in prosecution for homicide consid-
ered, and held sufficient to support a conviction
of murder in the second degree.-People v. La-
In criminal prosecutions, see "Criminal Law," groppo (Sup.) 116.
85; "Homicide," § 5.
and 120 New York State Reporter
in the circumstances surrounding the original
dispute.-People v. Lagroppo (Sup.) 116.
5. Appeal and error.
Refusal to strike out testimony of witness,
in prosecution for homicide, as to declaration
made by witness at about the time of the kill-
ing, held not cause for reversal.-People v.
Lagroppo (Sup.) 116.
The right of the wife to support is not a
property right, within the meaning of Domestic
Relations Law, Laws 1896, p. 220, c. 272, § 21,
granting a married woman the power of con
tracting in relation to her property as if she
were unmarried.-Carling v. Carling (Sup.) 46
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
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-
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
v. Lagroppo (Sup.) 116.
HUSBAND AND WIFE.
See "Divorce"; "Dower."
Fraudulent conveyances between, see "Fraud-
ulent Conveyances." §§ 1, 2.
IMPLIED CONTRACTS.
See "Account Stated"; "Contribution"; "Mon-
ey Lent"; "Work and Labor."
IMPROVEMENTS.
Liens, see "Mechanics' Liens."
Harmless error in suit for separation, see "Ap-On premises demised, see "Landlord and Ten-
peal," § 7.
Liability of wife for injuries caused by dog
owned by husband, see "Animals."
Mechanic's lien for materials furnished to hus-
band for use on wife's land, see "Master and
Servant," § 1.
Public improvements, see "Municipal Corpo-
rations," § 3.
IMPUTED NEGLIGENCE.
Rights of survivor, see "Executors and Admin- See "Negligence," §§ 3, 4.
istrators," § 2.
Sufficiency of consideration for agreement to
pay debt of husband or wife, see "Contracts,"
§ 1.
§ 1. Mutual rights, duties, and liabili-
A wife has no authority to authorize a third
person to enter her husband's dwelling and re-
move his furniture.-Heyert v. Reubman (Sup.)
797.
A husband is not liable for necessaries fur-
nished his wife, who, without just cause, has
abandoned him.-Ogle v. Dershem (Sup.) 1101.
§ 2. Marriage settlements.
Evidence held to justify a finding of agree-
ment made in consideration of marriage.-Kra-
mer v. Kramer (Sup.) 129.
§ 3. Separation and separate mainte-
Contract between husband and wife and a
third party, made in view of the existing separa-
tion of the husband and wife, held to be an at-
tempted agreement between the husband and
wife for her separate maintenance and support.
-Carling v. Carling (Sup.) 46.
Contract between husband and wife for her
separate maintenance and support held not sane-
tioned by Domestic Relations Law, Laws 1896,
p. 220, c. 272, § 21, relating to the power of
a married woman to contract.-Carling v. Car-
ling (Sup.) 46.
Covenants against, see "Covenants," § 1.
On property devised or bequeathed, see “Wills,”
§ 5.
INDEBTEDNESS.
Of testator, see "Wills," § 5.
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