Error in the description of real estate devised — the misdescription
may be struck out.] Where it is shown that an error exists in the description
of real estate, purporting to be devised by will, the court may in an appro-
priate action strike out the misdescription, and read the will as if it had never
been inserted, provided that independently of the false description such
devise is effectual.
The third clause of the codicil to a will was as follows:
"Third. I bequeath to Felix, Emilia and Guillermina Govin, whom I
love as children: To the first, the lot and house constructed on the same
marked with the number 241 West 23rd street; to the second, the house and
lot marked with the number 204 Lexington avenue, and to the third, the
house and lot with the number 204 West 39th street, said three houses being
situated in this city."
The testator never owned 204 Lexington avenue, and the only premises
on Lexington avenue he owned at the time of making such codicil, and at the
time of his death, was No. 738.
Held, that such clause should be read as if the misdescription, viz., the
figures 204, was not inserted therein, in which case the description would be
sufficient to vest in the devisee the property No. 738 Lexington avenue,
the only house which the testator owned on such avenue. GOVIN . METZ.. 461
10. Covenants in a deed, not enforcible in equity, justify the allowance
of damages at law — unmarketable title.] It does not necessarily follow from
the fact that the performance of certain covenants contained in a deed will
not be enforced or their violation restrained by a court of equity, that the
damages resulting from their violation cannot be recovered at law.
Whether certain covenants contained in a deed constituted such an incum-
brance on the title of the property in such deed described as to render it
unmarketable, considered. FOURTH PRESBYTERIAN CHURCH . STEINER.. 314
From a wife to her husband — void at law, sustained in equity — disa-
bility of married woman — -payment of a consideration by one person and a
conveyance by another. common-law rule, and present law, in regard thereto.
Incumbrances" — when "taxes" are not included therein construc-
tion of a contract — when extrinsic evidence may be given to aid the construction
thereof.
See MILLER v. EHEINZWEIG.
See ALTERATION OF INSTRUMENTS.
DE FACTO- Officers.
See OFFICERS.
DEFAULT- Judgment by.
See JUDGMENTS.
DEFECT- Of parties.
See PARTIES.
DEFINITION" Child”.
See MILLER v. MILLER...
as used in a will-defined.
"Incumbrances"— when "taxes" are not included therein.
See MILLER v. EHEINZWEIG.
"Invention -secret process its use, when open to the world, when
restrained by a court of equity.
Payment guaranteed" - written on bills of merchandise by the vendee,
does not transfer the original into a collateral agreement.
Word "willfully," as used in section 56 of the Penal Code, defined.
See PEOPLE v. BATES..
DELIVERY - Trover the possession of the chattel under a pledge is a defense
thereto a delivery is necessary - what delivery is sufficient.
See CLARK v. COSTELLO
Of gift inter vivos — essentials thereof.
See GIFT.
Oral extension of payment of a demand note-made in consid-
eration for its being then signed by an additional maker—no demand necessary
as against the maker — payable in a reasonable time.
DEPOSITION- The deposition of a party under Code of Civil Procedure,
DISCOVERY — Receiver — refusal to deliver property to him-order for
examination concerning the property — it is not an examination of an adverse
party to be used as evidence.
See MATHUSHEK PIANO MFG. Co. v. PEARCE.
· Examination of a party before trial.
See DEPOSITION.
DISCREDITING-Witnesses.
EJECTMENT - Action of- to what cases applicable.] The purpose of an
action of ejectment is to enforce a right of entry by a person who, having
the right of possession, is excluded from it by another. The remedy may
be made use of when the property is such that a judgment can be executed
by the delivery to the party entitled thereto, and the retention by him, of the
possession thereof. SMITH v. REVELS.
ELECTION - Order continuing a mechanic's lien-not affected by the fact
that the lienor has commenced an action at law.
See MATTER OF GOULD COUPLER Co..
Estoppel-election of remedy.
See COLVIN v. SHAW.
EMINENT DOMAIN — Judgment enjoining the operation of an elevated
railroad unless certain damages were paid and a conveyance taken — modified on
appeal so as to allow condemnation proceedings to be taken.] In an action
brought to recover damages, alleged to have been sustained by reason of the
construction and operation of an elevated railroad, the plaintiff obtained judg-
ment against the defendant restraining the operation of such road unless
within a certain time it should pay a certain sum and accept a conveyance
or release of the property rights in question, which, as a matter of fact,
would be invalid; the judgment did not fix a sufficient period within which
the defendant might acquire title to the real estate in question by condem-
nation proceedings.
Held, that such judgment should, on appeal, be modified by striking out
the alternative as to the payment of the money and the receipt of the release
or conveyance, and by directing that an injunction absolute issue, unless,
within six months after the entry of the order upon such appeal, the defend-
ant should have condemned the easements in question.
MCKEE v. N. Y. ELEVATED R. R. Co. (No. 1).....
Damages to real estate caused by an elevated railroad·
benefits and advantages in detail · -no presumption that evidence was not consid-
ered because not found.
See WAGNER v. N. Y. EL. R. R. Co...
·Damages caused by an elevated railroad― not awarded for premises not
fronting on the avenue on which such railroad is.
See KEENE v. METROPOLITAN R. R. Co....
Increase of value, after the erection of an elevated railroad not presumed
See STEETS v. N. Y. ELEVATED R. R. Co.....
EMPLOYER AND EMPLOYEE :
See MASTER AND SERVANT.
ENTICEMENT - Of a non-resident within the jurisdictionof a court-serv-
ive of papers upon him set aside.
EQUITY-Action quia timet—when_maintainable.] 1. To entitle a party to
maintain an action in the nature of a bill of peace to prevent a multiplicity
of suits, it must be clear that there is a right claimed or asserted which affects
many persons who are made parties, and for the support of an action of that
character it is essential that there be in the controversy some relation,
interest or question common to the parties, and which may be settled or dis-
posed of in the action, in which case several may unite as plaintiffs or the
action may be brought by one against several defendants.
BUFFALO CHEM. WORKS v. BANK OF COMMERCE
When a receiver will be appointed.] A receiver may and generally
will be appointed where a plaintiff has a cause of action, and his recovery is
probable, the benefit of which will be lost or greatly impaired unless a
receiver is appointed. Id.
3. Right of a mortgagee, as against junior lienors, to enforce his lien.]
Except under peculiar crcumstances an order will not be granted enabling
those having subordinate interests in property to obtain relief, while deny-
ing to a creditor having the senior specific lien the right to execute it in
the manner provided by law.
As a general rule a mortgagee is entitled to the full benefit of the lien of
his mortgage with the right to make it available without embarrassment
from those having subordinate interests, other than such as arises from a
defense interposed in the action brought to enforce the mortgage by means
of a judicial decree. Id.
Mortgage foreclosure.] Semble, that an action may be brought in
equity by the heirs at law and administrators of an intestate to restrain the
foreclosure of a mortgage, to have it declared paid and satisfied, and to com-
pel its cancellation of record. KELLY. JAY.
void at law, sustained in equity
Deed from a wife to her husband -
disability of married women-payment of a consideration by one person and a
common-law rule, and present law, in regard thereto.
conveyance to another.
See SCOTT v. CALLADINE ..
Liability of stockholders under section 10 of chapter 40 of 1848 - when
equitable relief will be granted — exhaustion of the remedy against the corpora-
tion must be shown.
See UNITED GLASS Co. v. VARY..
Doctrine of mutuality — right to compel specific performance of a con-
tract for the sale of land-when such contract will be reformed.
Gift inter vivos — delivery is essential — equity will not perfect a defec-
tive gift made without consideration.
See GOVIN v. DE MIRANDA..
Written contract—parties thereto assumed to know its contents — equi-
See ROCHESTER LAND CO. v. DAVIS.
Covenants in a deed, not enforcible in equity, justify the allowance of
damages at law.
ESTATES - Trust estate- undisposed of rents and profits belong to the person
entitled to the next eventual estate, not to the surviving beneficiary nor to the next
of kin of the deceased beneficiary.
ESTOPPEL- Res adjudicata -judgment in replevin for the recovery of bonds
when not a bar to the recovery of interest collected thereon.
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EVIDENCE- Inadmissible under section 829 of the Code of Civil Procedure.]
1. The evidence of an heir at law of a testatrix in a contested proceeding
relating to the probate of her alleged will, to the effect that the witness was
present at the time of the execution of the will, and saw the person who
was in attendance upon the testatrix administer to her an opiate, is inad-
missible under section 829 of the Code of Civil Procedure, where no valid
release of the interest of such witness in the estate is shown to have been
made.
Upon the contested probate of a will an interested witness, whose tes-
timony was excluded as inadmissible under section 829 of the Code of Civil
Procedure, produced an instrument of which the following is a copy:
"To the Hon. Joseph A. Adlington, Surrogate of Monroe County: I,
George W. Rumble, one of the legatees, heirs at law and next of kin of Sarah
R. Torkington, deceased, do hereby renounce and release all my interest of
whatsoever name and nature in and to the estate of said deceased as legatee
or otherwise. Witness my hand and seal this 27th day of December, 1892.
George W. Rumble (seal)."
The witness testified that he executed such instrument, but there was no
proof that it had ever been delivered to any one.
Held, that the instrument did not qualify the witness to give his testimony
where the incapacity of the testatrix to make a will was the ground of con-
MATTER OF TORKINGTON
2. Inadmissible under Code of Civil Procedure, § 829.] In an action
brought by a vendor to recover from the executors of the deceased vendee
the value of goods sold and delivered, the testimony of the vendor upon
the trial to the effect that such goods had never been paid for is inadmissible
under section 829 of the Code of Civil Procedure. BRAYMAN v. STEPHENS.. 28
3. -Decree admitting a will to probate — when not reversed for error
in the rejection of evidence.] Under the provisions of section 2545 of the
Code of Civil Procedure, a decree of a surrogate admitting a will to probate
will not be reversed for an error in the admission or rejection of evidence,
unless it appears to the appellate court that the appellant was necessarily
prejudiced thereby. Id.
Privileged communications — absolute and prima facie privileged —
action to recover damages for libel — malice.] There are two classes of privi-
leged communications- those which are absolutely privileged and for the
publication of which an action cannot be maintained, no matter what the
motive of the author may be, and those which are prima facie privileged,
which are of two kinds, those which relate to matters of public interest, and
those which relate to merely private interests.
In case a communication is prima facie privileged, the existence or non-
existence of malice on the part of the defendant is a question of fact, and
the plaintiff, in an action brought to recover damages for the publication of
ar alleged libel, before he can recover, must affirmatively establish to the
satisfaction of the jury that the publication complained of was made through
malice.
There are two questions involved in the issue whether a communication is
prima facie privileged, viz., was the occasion on which it was made privi-
leged, and did the communication go beyond what the occasion justified, or
did it exceed the privilege? HILL v. DURHAM HOUSE DRAINAGE Co........ 335
5. Dying declarations.] To render dying declarations admissible in
evidence it is not sufficient to show that the declarant believed he was about
to die, but it must also be proved that he was at the time without any hope
of recovery; the fact that the declarant lived nearly three days after the
making of the declaration would have little effect in determining the ques-
tion as to the admissibility of such declarations. PEOPLE . CHASE.......
6. Their admissibility depends on the facts of each case.] It is not
necessary that any specific words or phrases should be used by a declarant,
exhibiting his condition of mind, in order to render a dying declaration
admissible in evidence; the condition of mind of the declarant must be
established by the facts and circumstances which surround each individual
case. Id.
7. Increase of value, after the erection of an elevated railroad, not
presumed to be caused thereby.] The fact that a lot of land on which buildings
were erected increased in value after the erection and operation of an elevated
railroad, is no evidence that the property (the lot and buildings thereon) has
increased in value because of the construction of such road, as the occupa-
tion of the building on the premises may, notwithstanding such increase
of value in the lot, have been materially affected by the construction and
operation of the railroad. STEETS v. N. Y. ELEVATED R. R. Co........... 288
8. The deposition of a party under Code of Civil Procedure, § 838.]
Under the provisions of section 838 of the Code of Civil Procedure the testi-
mony of a party to an action, taken at the instance of the adverse party.
orally or by deposition, may be rebutted by other evidence, and the party
compelling the examination may prove his case by any competent evidence,
although such evidence may show the facts to be different from the state-
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