Digest. 5. county of New York, it is the duty EVIDENCE. 1. An agreement of purchase and sale reduced to writing, &c., is not at all necessary when an action is brought to recover an agreed price for lands actually sold and conveyed pursuant to an oral agreement, when the consideration remains unpaid. (McKenna agt. Bolger, ante, 411.) 2. A party is not precluded from testifying to extraneous facts, which tend to show that one who has testified to such a transaction has testified falsely, or that it is improbable that his statement can be true. (ld.) 3. It is not the intention of the Code (sec. 829) to prevent a party to a suit from testifying to any extrinsic fact that tends to contradict a witness who swears to transactions or communications had between such party and a deceased person, even where he cannot directly testify that no such conversation or transaction was ever had. (Id.) 4. It was not the intention to prevent the contradiction of a living witness, but to prevent a living party to a transaction or communication from testifying to it himself when death has closed the mouth of the other party. (Id.) So when a living witness swears to a contract made by a defendant with a deceased party at a specified time or place, there is nothing in the Code to prevent the defendant from testifying that at the time named he was in Europe or at some distant place, rendering it impossible that the witness speaks the truth. (Id.) Where husband and wife board at a hotel the husband is presumptively liable for the bill, but it is competent for the hotel-keeper to show that the husband was impecunious, and that credit was given to the wife so as to justify the detention of her property by virtue of the hotel keeper's lien. (Birney agt. Wheaton, ante, 519.) See INDIAN LEASES. Baker agt. Johns, ante, 464. 7. In this action, brought to recover the value of services rendered by the plaintiff to the defendant's intestate prior to February 7, 1882, the defense of payment was pleaded. Upon the trial the defendant produced a receipt executed by the plaintiff by which she acknowledged the receipt of fifty dollars from the intestate in full of all demands, of whatsoever nature or kind, up to date February 11, 1882," and proved that she had delivered it to the deceased. The plaintiff was then allowed, against the defendant's objection and exception, to answer the following question: Please state what, if anything, has been done to that receipt since you signed it and delivered it to the intestate?" She answered, "In full of all demands, of whatsoever nature or kind, up to date, February 11, 1882, has been added since. That was added after he took it from my hands; those were not on when I signed it:" Held, that the evidence was inadmissible as relating to a personal transaction between the witness Digest. and the deceased. (Boughton agt. Bogardus, 35 Hun, 198.) 8. After the plaintiff had, under the objection and exception of the defendant, read various entries from her account book showing payments by the deceased to her to apply in part payment for the services rendered by her, she was asked, and against the defendant's objection and exception, allowed to answer the following question: "That is all he has ever paid you except the fifty dollars you gave him a eceipt for?" Held, that the evidence was inadmissible, under section 829 of the Code of Civil Procedure, as it tended to contradict the claim of the defendant that a larger amount had been paid to her by the deceased. (Id.) 9 In an action of partition brought by a daughter and a granddaughter of the deceased owner against his son and widow, the latter interposed no answer, while the son alleged that land had been conveyed by the deceased to the granddaughter's father, as an advancement, and that the same should be set off against the share to be allotted to her. Upon the trial the son sought to prove by the widow who joined in the deed to the deceased son, that it was given without consideration, as an advancement: Held, that it was error to reject the evidence as inadmissible under section 829 of the Code of Civil Procedure. (Moore agt. Oviatt, 35 Hun, 216.) 10. The words "interested in the event," as used in the said section, are to be limited in their application to the particular issue or question as to which the witness is to be examined. (Id.) 11. Upon the trial of this action a son of the intestate entitled to share in his estate was called by the plaintiff. After he had stated his age, occupation and residence, the defendant's counsel objected to the competency of the witness to testify under section 829 of the Code of Civil Procedure. The objection was overruled and the witness allowed to testify. Parts of his testimony related to personal transactions and communications with the deceased, and part did not: Held, that the defendant's objection was too general to enable him to raise any question upon appeal. (Riggs agt. American Home Mis. Society, 35 Hun, 656.) 12. He should have renewed his objection when the objectionable testimony was given, or subsequently moved to have it stricken out. (Id.) 13. Where, in an action to recover damages sustained by the plaintiff by being bitten by a dog belonging to the defendant, the facts that the plaintiff was bitten, and that the defendant knew that the dog had previously bitten another person, have been established, witnesses called by the defendant cannot be allowed to testify that when they had seen the dog they had seen nothing malicious in his conduct nor any attempt made by him to bite any one. (Caldwell agt. Snook, 35 Hun, 73.) 14. Deed - prior oral agreements are merged in it- an agreement affecting the title to land must be in writing. (See De Witt agt. Van Schoyk, 35 Hun, 103.) 15. Trial for murder in the first degree-defense of an alibi - it is error to charge that it is a suspicious defense-what evidence may be admitted to sustain the defense. (See People agt. Kelly, 35 Hun, 295.) 16. Examination of a party before trial when not refused because it might tend to show the party to be guilty of a criminal offenseCode of Civil Procedure, sec. 870. (See Davies agt. Fish, 35 Hun, 430.) Digest. 17. Slander - privileged communication what is when actual malice must be proved-an unsustained justification is not evidence of malice. (See Decker agt. Gaylord, 35 Hun, 581.) 18. When the title of a purchaser will not be affected by declarations or admissions made by his grantor, while owning the land as to the right to draw water from a spring upon the land of another. (See Root agt. Wadhams, 35 Hun,57.) 19. Commercial custom - when admissible to show the effect of a particular form of check. (See Sims agt. U. S. Trust Company, 35 Hun, 533.) value of the services is competent, as bearing upon the probable truth of the claims of the respective parties. (Cornish agt. Graff, 36 Hun, 160.) 26. Proceedings to review erroneous assessments-1880, chap. 269 the earning capacity of real estate is a test of its value-review of a decision of the special term on appeal-how objections to the reception of evidence should be stated erroneous admission of evidence when the decision will not be reversed therefor. (See People ex rel. Railroad agt. Keator, 36 Hun, 592.) Digest. ment in making a levy. (See O'Donohue agt. Simmons, 36 Hun, 331.) 33. Sale of an interest in a partnership business-what is included in it-evidence of prior agreements is not admissible to contradict a written one-nor can the subsequent conduct of the parties be shown. (See Albright agt. Voorhies, 36 Hun, 437.) 34. Power of the legislature to make tax deeds conclusive evidence of the regularity of the proceedings. (See Chamberlain agt. Taylor, 36 Hun, 24.) 35. Obstructions to light, air and access to land, by an elevated railroad measure of damages opinion of a real estate broker as to such damages. (See Hine agt. N. Y. Elevated R. R. Co., 36 Hun, 293.) 1. At the close of the testimony in this case the counsel for the defendant submitted to the court an unnecessary and unreasonable The court not having embodied all these requests in its charge, the counsel for the defendant said: "I desire to call your honor's attention to certain propositions embodied in the written requests to charge which I have submitted"-the court here said: “I decline to charge further than I have already," to which the defendant excepted: Held, that the exception was well taken; that the counsel was entitled to distinguish and point out the specific propositions he desired to have charged. (De Bost agt. Albert Pulmer Co., 35 Hun, 386.) 2. Where upon trial exceptions are, without objection, ordered to be heard at first instance at General Term, the party succeeding at General Term may not object to a review of its decision here, on the ground that the case was not one proper to be so heard. (Wyckoff agt. De Graaf, 98 N. Y., 134) 3. This court, on appeal in criminal actions, may not consider objections to portions of the charge as to which no exceptions were taken on the trial. (People agt. Mills, 98 N. Y., 176.) 4. Upon trial before a court or referee an exception to a general finding of law, holding that one party is entitled to recover against the other, raises the question as to whether, upon all the facts found, the successful party was entitled to judgment. (Hemmingway agt. Poucher, 98 N. Y., 281.) 5. Where improper evidence has been received under objection and exception, which subsequently, on motion of the party against whom it was offered, is stricken out, this is to be deemed an abandonment of the exception, and such party may not have the benefit of it on appeal. (Price agt. Brown, 98 N. Y., 388.) number of requests to charge. 6. Although, on appeal from a Digest. judgment, in an action tried by the court, no exceptions appear to the findings of fact, or error in their determination, but the general term draws a different legal conclusion therefrom than that of the trial court, this does not authorize it to render a final judgment in accordance with its own conclusion. Whenever the character of the issues framed by the pleading is such that, upon a new trial, it will be possible for the respondent to recover, a new trial should be ordered. Having succeeded on the trial, he is not required to procure the appearance of excep tions upon the record, and so the appellate court cannot determine that there were no exceptions or errors. (Thomas agt. N. Y. L. Ins. Co., 99 N. Y., 250.) EXECUTION. 1. This action was brought against the sureties upon an undertaking given to indemnify the sheriff when making a levy under an execution upon property alleged to belong to the judgment debtor named therein. The undertaking was conditioned that if the obligors should well and truly save, keep and bear harmless and indemnify the said William C. Conner, and all persons aiding and assisting him in the premises from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judg ments, &c., that should arise or be brought against him for or by reason of the levy, or of any sale made thereunder of any property which he should judge belonged to the judgment debtor, then the obligation to be void, else to remain in full force and virtue. After the property had been seized a judgment for the value thereof was recovered by the true owner against the sheriff: Held, that as the defendants had entered into an absolute agreement to protect the sheriff against any judgment that 4. An execution having been issued upon a judgment recovered against a defendant, the sheriff, shortly before the expiration of the sixty days within which it was to be returned, commenced to advertise for sale certain real property alleged to belong to the defendant. After the expiration of the sixty days, and prior to the day of sale, the sheriff made a return in which he stated that he had collected nothing under the execution, and had not found any personal property out of which the execution could be made, but that he had levied upon certain real estate and advertised the same for sale. Upon this return the plaintiff procured an order for the examination of the defendant in proceedings supplemetary to execution: Held, that the return was not such as to justify the granting of the order. (Marx agt. Spaulding, 35 Hun, 478.) |