8. The affidavit stated that the said judgment was docketed and the judgment roll filed in the office of the clerk of the county of New York on the 14th day of January, 1886, and a transcript filed and duly docketed in the office of the clerk of Oneida county on the 15th day of January, 1886, and that an execution against the property of the defendants was on that 15th day of January, 1886, duly issued on said judgment and delivered to the sheriff of Oneida county, where the defendants reside.

Held, that upon this state of the case it will be presumed as between the parties, that the execution was issued after the filing of the transcript.

Held, further, that there being a sufficient allegation of the recovery of the judgment in the supreme court, then the allegation that the execution was duly issued on said judgment is in substance an allegation that the execution was issued out of a court of record. (Id.)

4. Moneys received by the widow of a policeman from the police pension or insurance fund, cannot be reached by a judgment creditor on supplementary proceedings, instituted either before or after the

money reaches her hands. (Sargent agt. Bennett, ante, 515.)

5. The police pension or insurance fund is in the nature of a trust, expressly authorized by statute for the benefit of widows and orphans, and as the funds proceed from persons other than the judgmentdebtor, and are intended for the support of the beneficiaries, they cannot be directed by means of this proceeding and turned over to creditors. (Id.)

SURROGATE.

1. Upon an application for an appointment of a guardian of an infant, the surrogate has authority to direct that access to the infant shall be allowed by the guardian when appointed, to such persons as the surrogate may designate. (Matter of Derickson Minors, ante, 21.)

TAXATION.

See SUPERVISORS

People ex rel. Supervisors of Ulster County agt. City of Kingston, ante, 452.

TRESPASS.

1. A property owner has the absolute right to prevent, by injunction, unauthorized trespassing upon his lands. (Post et al. agt. Phelan et al., ante, 133.)

2. The owner of cattle leased them, together with her farm, for a term of years, for a money rent. The cattle, when in the possession of the lessee, committed trespass upon a neighbor's lands. Action was brought for the damage done by the trespass against the owner of the cattle:

Held, that the owner was not liable for the damage done by the Cattle while trespassing; that the

owner, having lost the control and possession of the cattle, and not being able to gain possession or obtain control of the cattle, is not responsible for damage caused by them (Van Slyck agt. Snell, 6 Lans., 299. followed and distinguished). (Atwater agt. Lowe, ante, 139.`

TRUSTS.

1. In an action brought by plaintiff as executor of his mother, M. N. De P., against the defendant, as an individual and as executor of his father, F. De P., the second husband of plaintiff's mother, to recover various sums of money alleged to have been received by F. De P., during his wife's life-time, for and on account of his wife, and which moneys, or the rights thereto, were acquired by Mrs. De P. prior to the married woman acts of 1848 and subsequent years, and, at the trial, the check book of testator was introduced in evidence, the stubs of which contained the following entries, viz.: Under date of February 5, 1884, "Mrs. F. De Peyster, Mrs. F. G. Foster, Mr. John Hone, proceeds from sale of their portion of P. I. Co. bond and stock as per mem. on file, and including checks 2,474 and 2,475, $16,733.33, note; Mrs. De P., $5,511.11; Mrs. F., $5,511.11; Mrs. Hone, $5,511.11; check, 2,474, $50; do, 2,475, $150.' Also entry made April 20, 1884, in check book, on the deposit side, as follows, viz.: "Mrs. De Peyster's legacy from Hone estate, $6,000; interest from November 22 last, as per receipt in Hone's receipt book, $172.66; total, $6,172.66:1

Heid, that these entries indicate a declaration of trust. (Hone agt. De Peyster, ante, 422.)

2. The division by the testator of the money arising from the bond and stock of the Peru Iron Company, by which the amount was divided between the parties from whose interest it arose, and the widow, was,

1.

in effect, credited with her share, is a plain indication of the intention of the testator to hold such proceeds, not for the benefit of himself, but for the benefit of his widow. It was, substantially, placing himself in the situation and relation of a trustee as to these moneys, for the benefit of his wife:

Held, further, that the plaintiff, as executor of the estate of the widow, was entitled to recover those moneys, as funds held in trust for the testatrix by her husband. (DAVIS, P. J., dissenting.) (Id.)

TRUSTEES.

Where executors are also trustees, they are entitled to commissions in both capacities, where the will contemplates a severance of duties, and a point of time at which those of the executor would be ended and those of the trustees begin, but where a portion of the trust estates consists of real property, the commissions should not be computed upon the value of the real estate subject to the trust, but only upon sums of money, or other equivalent, received and paid out. (Wagstaff agt. Lowerre, 23 Barb., 209, overruled.) (Phoenix agt. Livingston, ante, 400.)

UNDERTAKING.

1. Where an order of arrest is obtained in an action where the cause of action and cause of arrest are identical, and the order of arrest is vacated on motion, and the plaintiff on the trial withdraws by stipulation the allegation of fraud from the complaint.

Held, that the order vacating the order of arrest became the final decision that the plaintiff in said action was not entitled to the order of arrest, and an action was maintainable upon the undertaking for damages sustained by reason of

the arrest. (Rothnell agt. Paine et al., ante, 187.)

2. Rule 5 of the General Rules of Practice which provides, that an attorney and counselor shall not be surety on any undertaking or bond, does not apply to a person whose name still appears on the roll of attorneys, but who abandoned the practice of the law many years ago to engage in another occupation, in which he still continues. (Stringham agt. Stewart, ante, 214.)

VOLUNTARY PAYMENT.

1. Upon the application of plaintiff, proceedings for the foreclosure of a mortgage were stayed, the plaintiff, although not a party to the mortgage, but liable on the bond, undertaking to pay the same by a certain day. Before the day named he procured a person to take an assignment of the mortgage. The defendants, the attorneys of the mortgagees, agreed to have the mortgage assigned, the plaintiff to pay the costs and expenses of the foreclosure suit. The defendants included in such costs and expenses an item of two and one-half per cent, amounting to $137.50, in the nature of an allowance, which plaintiff disputed, and it was reduced by defendants to $100, to which they claimed to be entitled, which latter sum was paid by the plaintiff. he, however, at the time protesting that it was illegally and wrongfully exacted. In an action brought to recover back the sum so paid:

Held, that it could not be recovered back, as paid under duress. (Bliss agt. Walis, ante, 325.)

WILL.

1. In construing a will whose provisions are fully set forth, infra: Held, that the testator's widow

2.

3.

4.

was given a life estate simply, with power to receive and enjoy only the interest and income of the principal, which, at her death, was to go to the testator's children. (Matter of Fernbacher, deceased, ante, 81.)

A testamentary provision for masses for the benefit of the testator's soul is valid, and should be upheld. (Holland agt. Smyth, ante, 106.)

Where the will directed the property to be sold, but gave no directions as to who should exercise the power of sale, such power being one authorized by the Revised Statutes, it would be the duty of this court to designate a trustee to execute the will, provided that it could be seen, from the will itself, that the execution of the power, without such designation, would utterly fail. (Loring agt. Binney, ante, 143.)

But where, by the terms of the will, the realty is converted into personalty, or a sale is necessary, as its proceeds to be realized from a sale, and not the land itself, is given to the heirs, there is an implied power in the executor to sell such realty for the purpose of distribution. (Id.)

See MUTUAL BENEFIT ASSOCIATION. Kaiser agt. Kaiser, ante, 104.

See COSTS.

WITNESS.

Pfandler Baun Bunging Apparatus Company agt. Pfandler et al., ante, 253.

1. A plaintiff cannot, under the provisions of article 1, title 3, chapter 9 of the Code of Civil Procedure, compel his adversary to appear and bexamined before the trial, when the object of the examination is to compel him to disclose the evidence

by which he intends to establish his defense; such an examination must be confined to facts which tend to establish the applicant's cause of action or defense. Where, in an action brought to foreclose a mortgage for non payment of interest, the execution of the mortgage is admitted and the action is defended on the grounds of payment of the interest and of usury, the plaintiff cannot compel the defendant to appear and be examined before trial, when it is apparent that the purpose of the examination is to ascertain the evidence by which the defendant intends to support his defense. (Adams agt. Cavanaugh, 37 Hun, 232.)

2. In an action in which the plaintiff seeks to hold the defendants liable as partners for goods sold to them by him, the fact that the defendants deny in their answer the alleged partnership furnishes no ground for denying an application by the plaintiff to have them compelled to appear and be examined before trial. (Olney agt. Hatcliff, 37 Hun, 286.)

4. In this action, brought to recover the possession of a farm, the defendant claimed that one Stuart, under whom the plaintiff claimed, had held the title to the farm in trust for the defendant to secure the payment of a certain sum of money, and that the said sum had been paid to Stuart. Stuart was a member of the firm of Freeland, Hoffman & Co., of New York, to which firm the defendant was indebted, as well as to Stuart, individually. Upon the trial evidence

was given tending to show that in November, 1842, the defendant deposited a package of gold in an express office at Rochester, containing an amount of money less than the amount of his indebtedness to the firm. Testimony was given from which it might be inferred that the gold was sent to the firm, and that it had received it and sent the defendant its voucher therefor. It also appeared that the package was opened at the place of business of the firm by Stuart himself. The defendant was allowed, against the plaintiff's objection and exception, to testify that the package was addressed to Stuart, individually, and not to the firm, Stuart having since died. Held, that it was error to admit this testimony. (Stuart agt. Patterson, 87 Hun, 113.)

5. That if it was admitted to show that the package was sent to Stuart, and not to the firm, it related to a personal transaction or communication, and was inadmissible under section 829 of the Code of Civil Procedure. That if it was admitted simply as a part of the description of the package delivered to the carrier, it was immaterial and irrelevant. (Id.)

6.

Where the testimony of the surviving party will tend directly, or by proper inference, to prove a communication made, or a transaction had, between the witness and the deceased, under such circumstances as that it can be seen that the deceased if living, might give testimony directly contradictory to that of the witness, or tending to repel the inference to be drawn therefrom, the testimony is inadmissible, provided the case, in all other respects, is within the statutes. (Id.)

7. This action was brought upon a promissory note, purporting to be made by the defendant to the order of one Leach, by whom it was in.

dorsed and transferred to the plaintiff. The defense was that the signature of the defendant was forged. Upon the trial the defendant, having been sworn in his own behalf, was shown the note and asked, is the signature to this paper, marked 'A' (the note in suit), your signature?" An objection interposed by the plaintiff that the question was inadmissible, under section 829 of the Code of Civil Procedure, as calling for a personal transaction with the payee, who was then dead, was sustained by the court. Held, that it erred in so doing. (Saratoga County Bank agt. Leach, 37 Hun, 336.)

8. This action was brought to recover for services rendered by the plaintiff, as attorney and agent, to the defendant's intestate. Upon the trial a certified copy of a power of attorney, from the deceased to the plaintiff, was received in evidence, together with other proof tending to show that the plaintiff had been employed by the deceased. plaintiff was then allowed, against the defendant's objection and exception, to testify as to services rendered by him under the employment, and as to their value. Held, error; that such testimony was excluded under section 829 of the Code of Civil Procedure. That it

The

ployment is to be carefully scrutinized, and the weight and effect of their evidence should be submitted to the jury. (See Michigan Carbon Works agt. Schad, 38 Hun, 71)

11. Criminal trial-what evidence is inadmissible on cross-examination -evidence cannot be given to sustain the character of a witness until it has been attacked. (See People agt. Van Houter, 38 Hun, 168.)

12. Perjury-when a witness testifying under an honest mistake is not guilty of that offense-Penal Code, sec. 96. (See People agt. Dishler, 38 Hun, 175.)

13. Evidence-a physician cannot testify as to information acquired while attending a patient-no one but the patient can waive the privilege-Code of Civil Procedure, secs. 834, 836. (Renihan agt. Dennin, 38 Hun, 270.)

14.

When a party may testify as to the value of services rendered by him to a deceased person. (See Burrows agt. Butler, 38 Hun, 157.)

15. Evidence-when inadmissible as calling for a personal communication with a deceased person-Code of Civil Procedure, sec. 829. (See Campbell agt Hubbard, 38 Hun, 806.)

16. Witness-he cannot be asked whether he was ever indicted (See Kober agt. Miller, 38 Hun, 184.)