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.
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
on application for judgment on the report. Sparrowhawk v. Sparrowhawk. 172
2 The right to a trial by jury in actions for di- vorce a vinculo, where the adultery is denied, is not taken away by the Code of Civil Pro- cedure. Butzil v. Batzil. 308
3 A reference will not be ordered in such a case unless a jury trial has been waived. Id. 4 In actions for divorce on the ground of adultery, a bill of particulars cannot ordinarily be necessary to prevent a surprise upon the trial. Cardwell v. Cardwell. 332
5 The settled practice requires that the charges shall be accompanied with so much particu- larity of time and place as reasonably to in- form the defendant of the criminal intercourse relied upon as the basis of the action. This may be ordinarily secured by motion to make complaint more definite. ld.
6 Alimony pendente lite will not be allowed un- less the applicant shows that she has a fair prospect of success in the action, and that she controverts and intends to litigate the matter set up by the other party. Collins v. Collins.
7 A question as to the allowance of alimony pendente lite is reviewable in the Court of Ap- peals where the facts are such that upon gen- eral principles of equity a plaintiff is not en- titled to demand alimony. Id.
1 In an action for dower, where it is sought to establish a marriage, not by direct proof, but by circumstances and acts from which a marriage might be presumed, it is error to ex- clude a question to one of plaintiff's witnesses as to what they understood from the conduct of the alleged husband and wife toward one another was their relation, and allow a witness for the defendant to answer from what she the house, whether as a wife or servant. It saw and heard, how she regarded plaintiff in
cannot be said that the exclusion of affirma- tive proof in her favor, and the admission of similar negative proof against her, did not prejudice her. Holten v. Holten et al. 14 See EJECTMENT, 1; MORTGAGE, 29.
1 Where the grantee of a right to lay down and maintain water-pipes across the lands of another, the grant not specifying the size of the pipes nor the place where they are to be laid, has exercised his right and laid down the pipes, he cannot thereafter lay his pipes in any first selected. other place, and of no other size than that Onthank v. The L. S. & M. S.
8 Where the plaintiff in an action for divorce has obtained an order for alimony, and subse- quently commences an action for the same cause in another State, the order for alimony should be stayed until the abandonment of the latter action. Nichols v. Nichols. 398 9 A judgment of divorce cannot be attacked collaterally either for error or irregularity. Wattrich v. Freedman. 439 10 In an action for divorce, for adultery, the defence was that the husband was a married man at the time of his marriage to the plain- tiff, and with this limitation the answer ad- mitted his marriage to plaintiff. Held, That the husband was not competent to testify to the fact of the prior marriage. Finn v. Finn. 452 11 Where the answer in an action for absolute divorce denies the charge of adultery, a reference to take proof of the facts and re- port the same to the Court cannot be ordered 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 12 Where counsel fee, disbursements, and costs are awarded to the plaintiff's attorney in the final decree in an action for divorce, they may be enforced by attachment. Howe v. Howe.
2 The passage of a resolution by the Common Council of a city, reducing the width of a street, is an abandonment or surrender of the public right of way over the portion not in- cluded within the new boundaries thereby established, which, followed by non-user for St. twenty years, extinguishes such right. Vincent Asylum v. City of Troy.
as it was by actual and continued occupation under a claim of absolute right, from claiming rights beyond the boundaries of the street as settled by its resolution; especially where substantial and permanent improvements have been made on the faith of such action. Id.
13 A refusal to pay the same is a contempt of 4 A right of way will be retained by a grantor
Id. 14 The payment of alimony cannot be enforced by attachment. Id.
over land conveyed by him without an express reservation thereof, only where such right at- taches of necessity; there must be proof of the necessity and the consequent intention to
reserve it; that it is a convenience is not suf- ficient. Dales v. Ceas. 400
See CONTRACTS, 21; DEEDS, 6.
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.
See CORPORATIONS, 10, 11; EASEMENT, 3; FIRE INSURANCE, 1; LEASE, 3, 17; MARRIED WOMEN, 7; NEW YORK CITY, 6; SURETY- 3. SHIP,
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.
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.
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.
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.
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.
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.
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
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,
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