INDEX.

CRIMES-Continued.

ever he is brought before the court, and it is no defense to a criminal prose-
cution that the defendant was illegally or forcibly brought within the juris-
PEOPLE v. EBERSPACHER.
diction of the court.

See, also, BEACOM v. ROGERS..

12. Against whom in civil actions.] In civil prosecutions the force or
fraud used against the defendant in that respect is a good defense only
against those who are parties to the fraud or force, but this rule has no appli-
cation to trials for criminal offenses. Id.

13. Power of a magistrate to examine and that of a court to try, distin-
guished.] There is a marked distinction between the power of a magis-
trate to hold an examination and that of a court which has acquired juris-
diction of the charge to try the accused. The first is merely a proceeding
to detain for trial if indictment be subsequently found, and it may be that
such a detention is to be considered a continuation of the original arrest, but
Id.
such principle does not apply to the trial court.

14. Incompetent testimony — when it does not justify a reversal in a
criminal case.] Where, upon the trial of a prisoner for a violation of sec-
tion 527 of the Penal Code, incompetent testimony is admitted over his objec-
tion, if such testimony is not prejudicial to him, and does not affect sub-
stantial rights, it is not sufficient under section 542 of the Code of Criminal
Procedure, to justify a reversal of judgment. PEOPLE. MARVIN...

15.
Commitment and sentence of a minor to a reformatory under section
713 of the Penal Code.] Where a commitment made by a police justice states
the age of the delinquent to be thirteen years, showed a conviction of petit
larceny, and contains the words "it is adjudged that he be confined in the
State Industrial School in the city of Rochester, New York, under the pro-
visions of the statute relating thereto, and he is hereby committed to the cus-
tody of the board of managers of the said industrial school until discharged by
due course of law," it is in accordance with the statutes and is not void for
indefiniteness. PEOPLE EX REL. ZEESE v. MASTEN..

Word "willfully," as used in section 56 of the Penal Code, defined.
See PEOPLE v. BATES

See HUSBAND AND WIFE.

-

requests to find
DAMAGES To real estate caused by an elevated railroad ·
benefits and advantages in detail - no presumption that evidence was not con-
sidered because not found.] 1. In an action brought to recover damages to real
estate caused by the maintenance and operation of an elevated railroad, it
appeared that the justice before whom the action was brought acted upon
correct principles in making the award, the essential fact being the depre-
ciation of the fee and rental value of such premises over and above all bene-
fits and advantages resulting to the same from the maintenance and operation
of the road.

Held, that he was not bound to specify, at the request of the defendants,
each of those benefits and advantages in detail;

That it by no means followed that because he declined to find evidence that
he did not consider it;

That a judge or referee before whom the action is tried is not bound to find
mere statements of evidence not disputed or disputable.

2.

WAGNER v. N. Y. EL. R. R. Co...........

Caused by an elevated railroad-not awarded for premises not front-
ing on the avenue on which such railroad is.] Where real property is so
situated that it is properly considered as a single parcel, although the total
frontage may not be upon the street occupied by an elevated railroad, dam-
ages may be allowed for injuries to it caused by the construction, main-
tenance and operation of the railroad, but where such premises are improved
by buildings distinct within themselves, some of them having no frontage
upon the avenue on which such railroad is operated, it is erroneous to award
damages for an alleged injury to such of the premises as have no frontage

PAGE.

410

220

310

580

584

445

DAMAGES-Continued.

on such avenue; the fact that there is architectural unity of construction in
such buildings and unity of ownership does not alter the rule.

KEENE v. METROPOLITAN EL. R. Co....

3. Temporary annoyance to an owner of real estate caused by building
on an adjoining lot creates no claim for damages.] Temporary annoyances
caused to the owners of lots adjoining one on which new buildings are being
erected or extensive improvements made, where no trespass is committed,
and the work is prosecuted with care and diligence, do not give to such
owners of adjoining lots a legal cause of complaint for consequential injuries
caused by the prosecution of the work necessary in the erection of the build-
ings or the completion of the improvements. Such temporary use of prop-
erty is legitimate. LESTER v. MAYOR, ETC...

4.

An action to recover a chattel —value fixed as of the time of trial.]
In an action brought to recover a chattel or the value thereof, and damages
for its unlawful detention, the value of the chattel to be fixed under the pro-
visions of section 1726 of the Code of Civil Procedure is its value at the time
of the trial.

Semble, that the fact that the value of the chattel was fixed by the verdict
of the jury as of the time of the demand therefor, instead of being fixed as
of the time of the trial, is a good ground for a new trial, although an excep-
tion was not taken. DUFFUS v. SCHWINGER

PAGE

451

479

541

·Damages caused by the collision of two vessels - proof of previous intoxi-
cation of the person in charge of one of such vessels is inadmissible.

574

See SENECAL v. THOUSAND ISLAND STEAMBOAT Co......
When services are rendered under an agreement that compensation for
them shall be made by will, which is not done, the value of the services may be
recovered against the decedent's estate.

See STOKES v. PEASE.

....

304

Libel-justification - facts set up in an answer, not alleging the truth
of the alleged libel, go only in mitigation of damages.
See FEELY v. JONES

18

Trespass by cattle — liability therefor — verdict of a justice's jury, not set
aside to allow the recovery of nominal damages.

See PHILLIPS v. COVELL.

210

Increase of value, after the erection of an elevated railroad, not presumed
to be caused thereby.

See STEETS v. N. Y. ELEVATED R. R. Co......

288

Executory contract for sale of personal property — liability of vendor
for breach of warranty — damages must be proved.
See HOOPER v. STORY

-

53

-

Carrier of passengers — liability for misconduct or neglect of its serv-
ant exemplary damages.

See MUCKLE. ROCHESTER RY Co.....

32

Limitation of liability for damages done by a vessel, under U. S. R. S.

§§ 4283, 4284 and 4285.

See ELWELL v. BENDER.

243

For the breach of a contract to defend a vendee from infringement suits -

defense items of damage.

See GRANT v. LAWRENCE

565

Covenants in a deed, not enforcible in equity, justify the allowance of

DEBTOR AND CREDITOR- Right of a failing debtor to prefer creditors —
action to set aside transfers of property by a debtor.] A failing debtor may
practically prefer any of his creditors to as great an extent as his property

DEBTOR AND CREDITOR-Continued.

permits, provided he does it by giving mortgages and bills of sale, or con-
fessing judgments, instead of expressing such preference in the terms of a
general assignment for creditors, which the statute alone condemns.

LONDON . MARTIN...

Motion to vacate an attachment -the merits of the case will not be
decided on such motion—right of a junior attaching creditor to intervene·
defense he may interpose.

PAGE.

229

407

...

See JOHNSON v. HARDWOOD DOOR & TRIM CO......
Receiver-appointed in supplementary proceedings — execution not
returned unsatisfied — a junior judgment creditor cannot take advantage of the
irregularity — when waived.

See BAKER v. BRUNDAGE...

Action by the general creditors of a firm for the appointment of a
receiver — maintainable against a limited, but not against a general partnership.
See HARDT v. LEVY (No. 1)..

-

Application to sell real estate for the payment of a testator's debts
order of sale - real estate referred to in Code of Civil Procedure, section 2763.
See MATTER OF LAWRENCE..

Agreement by a cemetery association to apply the proceeds of sales of its
lots to the payment of a loan.

382

348

176

See THACHER ?. HOPE CEMETERY ASSN....

222

Lien of the creditors of a decedent on real estate- - action to acquire such
a lien - against whom it may be maintained.

See ROGERS v. PATTERSON.

483

Remedies of creditors of an insolvent corporation · not defeated by an
assignment of part of the assets.

See SALT v. ENSIGN

107

...

"Payment guaranteed" written on bills of merchandise by the vendee, do
not transfer the original into a collateral agreement.

"See JONES v. NEWTON.....

436

Collateral securities given to a surety — enforcible by the creditor.
See MERCHANTS' NAT. BANK v. CUMMINGS..

-

DEED Action to set aside a deed — evidence sufficient to justify a judgment for
the plaintiff therein.] 1. A widow of seventy-six years of age, who was
visiting her daughter, was taken to ride by her son-in-law, with a view to
seeing a monument in a cemetery, on which occasion she stopped at the
house of one Barker, and while there two deeds were prepared and executed
by her.

Upon the trial of an action brought by her to have such deeds adjudged to
be void, the trial judge found that on the 25th day of September, 1891, the
plaintiff executed and acknowledged two deeds, purporting to convey all
of her real estate, in one of which Silas F. Bettinger was named as grantee,
in which a portion of said real estate was described, and in the other of which
Edgar G. Bettinger and Betty E. Van Alstine were named as grantees, in
which the balance of said real estate was described; such deeds were drawn by

DEED-Continued.

and executed before Schuyler M. Barker, who thereafter caused them to be
delivered to one Van Alstine, who caused them to be recorded in the office of
the clerk of Jefferson county. That the persons named in said deeds as
grantees were not, nor was either of them, present at the time the same
were executed and left with Barker, nor was any person then present repre-
senting any of them. That said deeds were without any valuable considera-
tion, and that at the time they were left with Barker the plaintiff did not
intend by their execution and by so leaving them, to convey a present irre-
vocable title to the grantees therein named to the lands therein described; nor
did she intend thereby to deprive herself of the power to withdraw or alter
them at pleasure; nor had she since so intended; nor did she ever irrevocably
deliver said deeds to the grantees therein named, or to their heirs, or to any
person for them.

These deeds each recited a consideration of one dollar, and contained a reser-
vation of the use of the property during the life of the plaintiff.

Judgment was awarded in favor of the plaintiff that such deeds be sur-
rendered and delivered up to be canceled of record.

After the execution and acknowledgment of such deeds, the grantor had
a conversation with Barker in which she proposed to leave them with him,
and she stated that she might want to make a change, and that she would
be at his place again. The plaintiff testified in regard to such conversation
as follows:

"I may want to make a change. I shall be here again. And I said to him,
'Can't I?' And he said, 'Yes, any time you are a mind to;' that if he
wasn't there when I came his wife could do the business about as well as he
could. I then said to him: Can't I leave them, and can't I change it if I
want to?' He said, 'Yes.' And I said, 'I will leave these here; I trust you
to keep them. I don't want you to let them go out of the house.' He said,
They shant go out of my house nor out of my hands.' I said, 'Keep them
right here. I don't want you to let them go." I never ordered him to give
it up to any one. I changed my mind later, because I asked if I couldn't
change it. He told me I could, and he promised to me it shouldn't go out
of his hands nor out of his house. I did tell him to keep it there until I came
again; that I might want to alter it."

Barker testified that the plaintiff said to him: "Mr. Barker, you take
these papers and keep these in your possession until my death, and then you
deliver Silas' deed to him and the other deed to Betty and Edgar. I think
there was something said about recording them. After I had drawn these
papers she directed me to keep the papers in my hands until her decease,
and then to deliver Silas' deed to Silas and the other deed to Betty and Edgar.
Deeds were then talked about. The deeds were talked about there and in
that connection. I did not suggest, the plaintiff had directed me, to keep the
deeds till her death, and then that I deliver them to the grantees. Plaintiff
originated that idea-that I hold the deeds until she died and then deliver
them over; that was her suggestion. She said, 'I want you to take these
papers and keep them, and deliver them to these persons after my death.'
She didn't deliver the deeds or authorize them to be delivered to the grantees

until after her death."

Barker's wife testified that she was present on the occasion when the deeds
were prepared, and heard the grantor's instructions to Mr. Barker. "She (the
plaintiff) told him to keep the deeds in his possession and deliver them to the
parties at her death. I heard Mrs. Bettinger tell my husband that she wanted
him to keep the papers until after her death, and then to deliver them to
Edgar and Betty and Silas."

Barker's son testified that he was present on the occasion when his father
drew the deeds, and he heard the grantor's statements to his father. "She
said to him to have them (the deeds) recorded when it was convenient for him
to do so, I think, and for him to keep them in his possession and to deliver
them to the persons after she was dead."

Held, that the testimony amply sustained the findings of the trial judge
that the plaintiff did not intend to deprive herself of the power of withdraw-
ing or altering such deeds at pleasure, and that she did not irrevocably deliver
them to the grantees therein named;

That the fact that such deeds were recorded, under the circumstances,

PAGE

DEED-Continued.

created at most a presumption of delivery which it was competent for the
plaintiff to overcome by parol evidence;

That the Special Term had ample power to remove the cloud upon the
plaintiff's land, and as she had remained in possession thereof she was
entitled to the relief granted by the trial court, authorizing the county clerk
to cancel the records of the deeds, and to a judgment to the effect that
such deeds were inoperative and invalid to pass title to the grantees therein
named. BETTINGER v. VAN ALSTINE..

2. Action to reform a deed - merger of prior agreements between the
parties — burden of proof.] It is presumed that all the prior negotiations and
agreements between grantees on the subject of the estate to be taken by
them have been finally concluded by, and are embraced in, the terms of the
deed conveying such estate, and in an action brought to reform a deed because
it does not conform to the understanding of the grantees therein named as to
the title to be taken by them, the burden of proof is upon the plaintiff to
overcome such presumption by evidence.

To reform an agreement between parties it is essential that mutual mis-
take or fraud on the part of one of the parties be shown, but such rule is not
necessarily applicable to a case where the mistake occurs merely in the
reduction of the agreement to writing.

PAGE.

517

When a grantor fails to observe the contract pursuant to which a deed is
made, a grantee who has not assented to the terms of the deed nor been
advised at the time of its delivery of the defective execution of the contract,
may seek a remedy in an action for the reformation of the deed founded
upon the charge of fraud on the part of the grantor. BROWN v. BROWN.... 44
3. Deed from a husband to his wife-laches.] The fact that a wife
relied upon her husband to prepare a deed according to their mutual under-
standing, and rested in the belief that it was so made, and did not ascertain or
know that it did not express their intentions, does not necessarily constitute
laches on her part, or deny to her or her heirs the right to make the mistake
and misapprehension a ground for reformatory relief. Id.

4. Mutual mistake.] It is enough to authorize the reformation of
a contract if it appears that, through the mistake of both parties to it, the
intentions of neither have been expressed in it. Id.

5. Power of husband and wife to take as tenants in common.] Since
the statute has given to the wife individuality, for the purpose of taking and
holding property as effectually as if she were a feme sole, she may take as a
tenant in common under a single deed to her and her husband, if the deed
properly expresses an intention to that effect. Id.

6.

When valid in equity.] While a deed made by a husband directly
to his wife is void at law by reason of the marital relation, yet, if it has for
its support an adequate consideration paid by her to him, it may be valid and
effectual in equity. Id.

7. Condition subsequent in a grant in fee-enforcible only by the
grantor or his heirs.] Where there is a grant of an unqualified fee the rule
is that a condition subsequent reserves to the grantor no estate or interest
in the land. Every estate and interest of the grantor passes absolutely to the
grantee, and upon the breach of such condition the estate does not ipso facto
revest in the grantor.

No one can take advantage of the breach except the grantor during his
lifetime, and after his death those in privity of blood with him, his heirs,
but not his devisees. UPINGTON v. CORRIGAN

......

8. - A forfeiture not defeated by the transmission of title-recovery of the
estate by reason of a forfeiture — proper party defendant.] A forfeiture, by
reason of the breach of a condition subsequent contained in a deed, cannot
be defeated by a transmission of the title to the premises in question, and the
person in possession of such premises, and claiming to be the owner thereof
in fee, is the proper defendant in an action brought to recover such prem-
ises whether he be the devisee of the grantee or obtained title by deed from
such grantee. Id.

488