15. Letters of an agent are admissible as part of the res gesta, where the agency is proved by other evidence. Luthers v. Hunt (N. Y. C. P.), 691. 16. On the trial of an action on special contract for services rendered by plaintiff in sale of real estate, the question was as to when the commissions were due, and defendant offered to prove by two witnesses that at the time the contract was entered into, and before the agreement was made with plaintiff as to the time of payment of compensation, defendant communicated to plaintiff and the purchaser the fact of an existing lease subject to which the purchaser was to take and that he was to have possession after its expiration. Held, that the evidence was competent as against the plaintiff, who was not a party to the written contract. Lipski v. Peth (Sup. Ct.), 741.

17. An error in the admission in evidence of a deposition without the necessary preliminary proof is not ground for reversal, where the witness whose deposition was taken was afterwards produced and testified orally to the same facts. Slocum v. Slocum (Sup. Ct.), 1109.

See BUSINESS CORPORATIONS, 2, 3; CHATTEL MORTGAGE, 6, 7; ConTRACT, 16; CONVERSION, 2; EJECTMENT, 2, 3; EXECUTORS, ETC., 19, 20; FRAUD, 9; INSURANCE (ACCIDENT), 3; MASTER AND SERVANT, 19; MUNICI PAL CORPORATIONS, 14; MORTGAGE, 8; NEGLIGENCE, 23; OYSTERS, 2; PLEADING, 2; RAILROADS, 4; SALE, 2, 5; WILL, 27, 31; WITNESS, 1.

EXECUTION.

Leave to issue execution upon a judgment of a justice of the peace may properly be granted after the lapse of more than six years after its rendition, where a transcript thereof was docketed in the county clerk's office within that time. Section 382, subd. 7, of the Code does not extinguish or destroy the lien of a judgment so docketed. Townsend v. Tolhurst (Sup. Ct.), 21.

See CHATTEL MORTGAGE, 8; SHERIFFS, 3-5.

EXECUTORS AND ADMINISTRATORS.

1. The surrogate's court has ample authority on the settlement of the ac counts of an administratrix, the widow of the intestate, to consider and pass upon claims for moneys advanced by her for the maintenance of a child while in the insane asylum and the expenses incidental and preliminary to her confinement therein. Matter of Morris (Sur. Ct.), 145. 2. A will which gives the title to real estate to children of deceased and merely postpones the period of division until the youngest attains the age of twenty-one, confers no power upon the executor to collect the rents; but it is the duty of the testamentary guardian to collect such rents during the minority of the children. Matter of Blow (Sur. Ct.), 290. 3. A failure to appoint a successor to a testamentary guardian who resigns or is removed will not authorize an administrator with the will annexed to collect the rents and act as such. Id.

4. An administratrix with the will annexed who has collected rents cannot be made to account therefor as administratrix; nor can she be held responsible in surrogate's court by reason of the doctrine of equitable estoppel on the ground that she has included such rents in an account filed. The surrogate's court has no power to decide as to rents and profits of real estate. Id.

5. The administrator of a legatee made a motion in surrogate's court for the payment of the legacy, based upon an affidavit which stated the necessary facts and asked that such legacy be paid. Held, that the affidavit was sufficient as a petition to authorize a citation and that the notice of motion did no harm. Matter of Dunscomb (Sup. Ct.), 333.

6. Two legacies in a will were declared invalid and one of the legatees appealed. Held, that before the executors could be strictly required to distribute the amount of the other legacy it should be made to appear that the time for the other legatee to appeal had expired, or else provision should be made for reimbursing them in case of a final determination reNY. STATE REP., VOL. XXXII.

147

quiring a different disposition of the fund. Matter of Armstrong et al. (Sup. Ct.), 441.

7. Service of a copy of the decree with notice of its filing is not sufficient to limit the time for appeal. What is required is a notice of the entry of the decree, and such entry is defined as a record to be made in a book provid.d for that object. Id.

8. Where an application to remove an administrator is made under § 2684 et seq., Code Civ. Pro., the matter of removal is very much in the discretion of the surrogate. Moral guilt or delinquency is not enough to exclude one from office. And here, the failure by the admisistratrix to include in the inventory a mortgage which, as it subsequently appeared, she claimed as her own property (although it was alleged that her ownership, if existent, was the result of dishonest practices) was not enough to justify her removal from the administratorship. Matter of Moulton et al. (Sup. Ct.), 631.

9. Where the interest of the administratrix is hostile to that of the estate, and she refuses to bring an action under chap. 314, Laws of 1858, to disaffirm a transfer made by the deceased, which was fraudulent, the fact that she is administratrix is not an embarrassment, nor does it require her removal from office. Creditors may bring such an action and make her a defendant both as individual and as administratrix. Id.

10. An order for partial distribution under §§ 2717, 2718, of the Code, can be made while the contest over items which affect the general settlement is going on. The remedy which a distributee has under these sections is not within the principle that two proceedings are pending for the same thing at the same time and that the first in time is the first in right. Matter of Ockershausen (Sup. Ct.), 709. .

11. The omission of one tract of land in the petition by creditors of an estate to subject testator's land to the payment of his debts does not affect the jurisdiction of the surrogate, where there was no want of diligence or proper inquiry, and no description of it in the will. Matter of Bingham (Sup. Ct.). 782.

12. Defects may be supplied in the petition after it has been filed by including names not known at the time, and such defects are not jurisdictional.

Id.

13. Where an administrator in his official capacity holds stock in a national bank, which he has never transferred to himself, the sole heir, he is exempt from assessment upon it under U. S. R. S., § 5152. Id.

14. Decedent and her brother each receipted to their father's executors for one-half of certain stock belonging to his estate. After her death her executors met her brother, and he produced a box, and took therefrom two bonds, one of which he gave to them, and the other securities, including the stock, were replaced in the box, and it was stated that it was doubtful if the stock was worth anything. On the brother's death the stock was found among his effects. Held, that, under the circumstances, his possession of the stock was evidence of his ownership thereof, and that his administrator was entitled to it. Matter of Mapes (Sur. Ct.), 786. 15. Plaintiff brought action to recover the amount of an insurance policy issued by defendant on the life of one M., who died in Massachusetts and was a resident of Maine. The policy passed into the possession of the administrator appointed in Maine and he sued upon it and recovered judg ment, which was paid and the policy surrendered. Held, that the policy never having been within this state could not form any part of the assets of the deceased to which plaintiff acquired title, and that his want of possession thereof was fatal to the action. Morrison v. Mutual Life Ins. Co. (Sup. Ct.), 846.

16. Where there was an express contract between the deceased and the claimant, the latter on failure to prove its terms cannot abandon it and seek to recover on a quantum meruit. Matter of Lang et al. (Sur. Ct.), 903.

17. An executor is personally liable on a contract made by him for the burial of his testator. Tracy v. Frost (Sup. Ct.), 907.

18. Respondent presented a claim against the estate for services as nurse and for board of decedent's nephew and niece, which was rejected and referred. He proved that deceased had stated to others that she had promised him $200 to take the nephew and niece away, and also by the physician and claimant's wife that decedent said she would pay him all he lost and the same as a professional nurse. Held, that the claim was fully proven. Heyne v. Doerfler (Sup. Ct.), 960.

19. Plaintiff was asked if he had a conversation with deceased about the nephew and niece coming to his house. Held, not improper under Code Civil Procedure, § 829, as it called merely for the fact that a conversation took place, and that was not the material fact to be proved. Id.

20. Defendant having given evidence as to a conversation with deceased favorable to himself, plaintiff was allowed to give his version of the conversation. Held, no error.

Id.

21. Within a year after testator's death the executors had paid the debts, set apart the trust funds, and made a distribution of the balance of the estate, and one of them accounted and was discharged. He had received a part of his commissions, and the surrogate decreed that a certain amount was due him. Held, as to such executor's right to the commissions received, no objection could be raised, but the other executors were chargeable with interest on the commissions paid to themselves in advance of a legal allowance thereof. Matter of Herrick (Sur. Ct.), 1032.

22. One of the daughters became dissatisfied with a security given to her on the division, and the executors purchased it back with funds of the estate. Held, that such purchase was unwarranted, and was made at their own risk and they were liable for any loss thereon. Id.

23. Elizabeth Underhill died in 1860 and bequeathed $8,000 and certain bank stock to her husband. The bank stock was transferred by him to his son, who was executor of his mother's will. The husband d'ed in 1861, and the son was appointed administrator of his estate. On this ap plication for an accounting made in 1889, a paper in the son's handwriting was introduced, purporting to be a statement of account between himself as executor and administrator and his father, in which he charged himself with interest on $8,000 and with dividends on the bank stock. It was not shown what the paper was made for or to whom it was given. Held, that this paper was not sufficient to charge him with holding the stock as trustee; and that as appellant was entitled to an accounting in 1863, the present application is barred by the statute. Matter of Underhill (Sup. Ct.), 1061. 24. An accounting by executors will not be opened to allow an heir to litigate a compromise and settlement made by the executors with the assent of such heir and the surrogate, in the absence of proof of fraud, collusion or misrepresentation inducing such settlement. Matter of Engs (Sup. Ct.), 1063.

See CONTEMPT, 5; HUSBAND AND WIFE, 7; WILL, 2, 15, 30.

FACTORS.

1. A del credere commission is earned when the guarantee is made, not when it is performed. Springville Mfg. Co. v. Lincoln (N. Y. C. P.), 668.

2. Where the proceeds of sales are to be remitted "from time to time," the identical moneys received are not required to be paid over, and a failure to remit is not equivalent to embezzlement, so as to deprive the factor of his right to commissions. Id.

3. Defendant's assignors sold goods on commission for plaintiff under an agreement by which they were to receive a certain commission for selling and an additional commission for guaranteeing prompt payment. They made collections which they did not remit, and executed a general assignment for creditors, and further payments on the sales were made to the assignee. Held, that the assignee was entitled to set off the amount of the del credere commission on the sales against the amount due to plaintiff from the assignors. Id.

4. Where the assignor agrees to pay commissions on sales within a specified time after receipt of bills for the same, and the factor agrees to keep all

entries as to such sales in separate books, to collect and remit the amounts at date of maturity by check, the remittances to be made daily if collections amounted to $1,000, payments made before maturity to be remitted less discount for anticipation of payment, the factor is entitled to commissions only upon the amounts actually remitted. Hockanum Co. v. Lincoln (N. Y. C. P., 672. FALSE IMPRISONMENT.

See PLEADING, 16.

FALSE REPRESENTATIONS.

See FRAUD, 5, 6, 8.

FORECLOSURE.

1. A defendant, in an action of foreclosure, who sets up the defense of fraud, intimidation, false representations, champerty and maintenance, is not thereby entitled, as matter of right, to a trial of those issues by jury. Stephens v. Humphreys (Sup. Ct.), 211.

2. In an action of foreclosure the defendant's answer alleged that in 1888 she conveyed the premises to certain of the defendants on an agreement that they should advance moneys to pay debts and the interest on the mortgage and reconvey in two years on repayment of the sum advanced, and also a breach thereof, and asked that the agreement be reformed and decreed to be specifically performed, and that defendants keep the premises free from the mortgage in suit. Held, that affirmative relief of this nature was not authorized by § 521 of the Code; that there was no defense to the mortgage and that appellant was not entitled to delay the foreclosure. Mutual Life Ins. Co. v. Cranwell (Sup. Ct.), 376.

3. The village of New Rochelle gave its consent to the construction and operation of defendant's road on its streets and highways on condition that it should indemnify the village from all damages which might result therefrom and give a bond for that purpose, and has since commenced action on the bond. Held, that the village had no lien on the property of the railroad but was only a general creditor and could not be made a party, under § 452 of the Code, to an action to foreclose a mortgage given by the railroad company. Farmers' L. & T. Co. v. New Rochelle & P. R. Ř. Co. (Sup. Ct.), 714.

4. A complaint in an action to foreclose a mortgage executed by a trustee is not demurrable on the ground that the cestui que trust was not made a party. A cestui que trust is a proper party, but not ordinarily a necessary party. Harlem Co-operative B. & L. Ass'n v. Quinn (Sup. Ct.), 909.

5. Application was made to set aside a foreclosure sale on the ground of the insanity of the mori gagor at the date of sale and inadequacy of price. The affidavits as to the time when the mortgagor became insane were conflicting and proof of inadequacy of price unsatisfactory, the main proof being that the plaintiff, who was the purchaser, sold four years later at an advance in price. The court ordered a reference to determine the amount received by plaintiff on the resale and from rents and payments made by him and that the balance be applied on the judgment for deficiency. Held, Provost v. Roediger et al. (Sup. Ct.), 1101.

error.

See DISCONTINUANCE, 1; EVIDENCE, 10; MORTGAGE, 2; REFERENCE, 7, 8.

FORGERY.

See BILLS, NOTES, ETC., 7.

FORMER ADJUDICATION.

1. The principle of res adjudicata does not apply to matters raised only incidentally or collaterally. Springer v. Bien et al. (N. Y. C. P.), 63.

2. In a former action for an injunction against using a name and trademark brought by defendants against plaintiff and others the complaint contained an allegation in regard to the compensation to be paid plaintiff the same as in the complaint herein, which was admitted by the answer therein, but the court notwithstanding such admission made a finding thereon. Held,

that there was no issue of fact on that question and that the finding was not binding on the parties. Id.

3. In a former action upon a similar mortgage the defendant answered denying liability. The plaintiff waived all claim for deficiency against any party except one R., and the court stated in the findings that the liability of the other defendants was not tried before him, and dismissed the complaint as to them. Held, that such decision was no bar to the present action. National Hudson River Bk. v. Reynolds (Sup. Ct.), 124.

4. A judgment cannot be res adjudicata as to matters which it expressly refuses to decide, and leaves open to further litigation. Buhler et al. v. Hubbell et al. (Sup. Ct.), 343.

5. An adjudication which upon its face is an adjudication upon the merits of a controversy cannot be shown by parol evidence in a collateral proceeding to have been otherwise. Brooks v. Mayor, etc., of N. Y. (Sup. Ct.), 559.

6. In a proceeding to reduce an assessment the defense was that plaintiff had previously presented a petition to have said assessment adjudged irregular and void and vacated; and that such application was denied. The court admitted, under objection, parol proof that the denial was consented to because it was discovered that the assessment had been paid. Held, error; that the former judgment was a bar to this proceeding and parol evidence could not be admitted to impeach that record. Id.

7. In a former action brought by defendants against plaintiff on certain notes, the answer set up their invalidity and demanded a reconveyance of lands given as collateral thereto. Evidence in relation to a right to reconveyance was excluded as not within the issues, and judgment was rendered in favor of the defendant therein, the jury having found the notes invalid. Held, that such judgment was not a bar to an action to obtain a reconveyance of such lands. Henderson v. Kohn (Sup. Ct.), 1056.

8. In a former action between these parties the same defenses were interposed. Held, that as to the issues thus raised, which were common to both suits, the decision then made is binding on the parties. Montrose v. Wanamaker (Sup. Ct.), 1059.

See ADVANCEMENTS; MUNICIPAL CORPORATIONS, 7.

FRAUD.

1. Testimony of defendant that he took plaintiff's money without intending to hold it for her benefit, taken in connection with testimony of other witnesses that it was given him for that purpose, is sufficient to establish fraud. Shaw v. Shaw (Sup. Ct.), 80.

2. Defendant claimed that before their wedding plaintiff gave him her money without any trust, and in consideration of the marriage; that he had no affection for her and refused to marry her on any terms except an absolute conveyance of all her property. She was young and did not consult her friends, and her letters showed an infatuation which might impel her to give him all her estate without conditions. Held, that the conveyance should not be allowed to stand. Id.

3. Sending for a surgeon after the horse was dead, or proving his age, has no tendency to prove fraud unless followed up by proof that the horse was unsound at the time of purchase. Kierans v. Wolff et al. (Sup. Ct.), 83.

4. One K. procured J. to advance money for the purchase of land under an agreement to take title in their joint names, and for their joint benefit, but the deed was actually taken in the name of one P. Subsequently F. took a deed thereof from P.'s grantee pursuant to an arrangement with K. similar to that made with J. The deed was recorded, and F. paid off liens. Thereafter K. conveyed his interest to plaintiff. Held, that F. was protected by the recording act to the extent of advances made by him in good faith; that a trust was imposed upon the several grantees from P. to M. in favor of J., who was therefore entitled to be next paid his cash advances, after which the balance of the proceeds of sale should be divided between F. and J. Kearney v. Fleming et al. (Sup. Ct.), 148.