Volume 13 — Bedell

The facts, so far as material, are stated in the opinion. It was error of law to. refuse to ■ dismiss the indictment at the close of the People’s case. (People v. Ledwin, 153 N. Y. 10; Matter of M. H. Bank, 153 N. Y. 199; Townsend v. Little, 109 U. S. 504.) The trial court erred in rulings upon the admission of evidence.

<p>1. Betting and Gaming—Pool Boom—Penal Code, Section 351—In-dictment Must Allege Presence of Books and Papers.</p> <p>A count in an indictment under section 351, Penal Code, for keeping and occupying a room for recording bets and selling pools on horse races is defective where it fails to allege that defendants kept and occupied a room with books, papers, apparatus or paraphernalia for the purpose of recording bets or wagers."</p> <p>•2. Same.</p> <p>The indictment need not specify the particular house or building in which the defendants are charged with keeping and occupying a room for the purposes forbidden. It is sufficient that the indictment ■ charged the facts constituting the offense and the place where it was committed .as within the jurisdiction of the court.</p> <p>3. Same—Where Another Penalty is Provided by Law.</p> <p>Such an indictment is fatally defective in failing to aver that the rooms kept and occupied by the defendants were not on a race course authorized by statute, since the keeping of an establishment for gambling constitutes a felony under section 351, “ except when another, penalty is provided by law,” no other penalty therefor is prescribed by the Revised Statutes nor by section 343, that section embracing only cases not specifically provided for by section 351; but under the Racing Law, 1895, ch. 570, in the absence of an allegation that vouchers for bets or pools were ever delivered or intended to be delivered, or that defendants occupied and kept the room for that purpose, another penalty is prescribed by law which is both civil and exclusive, and, therefore, both the indictment and the proofs should negative the fact that the case comes within the exception.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The exercise of diligence cannot protect the bank in view of its knowledge of the depositor’s death. (L. 1882, ch. 409, § 257; Farmer v. M. S. Inst., 60 Hun, 462; Fowler v. B. S. Bank, 113 N. Y. 450.)

<p>1. Railroads—Right of Way—■ Release. An instrument by which a property owner in consideration of the location of a line of railroad in the street adjoining his premises consents to its construction and operation thereon and agrees to execute a release, constitutes an agreement to release his interest in the soil of the street; but the extent of the right conferred upon the railroad company to make use of the street for railway purposes depends upon the surrounding circumstances at the time of the execution of the instrument.</p> <p>3. Right of Way—Right Acquired. One who, on condition that a railroad company should make “ no unnecessary obstruction of the street,” and make access to his lots “as easy and convenient as practicable,” grants “a light of way along the street only” in front of his property, to the company which, acting under tlic permission of the village authorities that it might grade, lay and operate its track, has constructed a single track thereon in conformity with the map filed by it which delineated the right by a single red line in the center of the street, does not confer upon the company the right to utilize the street for as many tracks, sidings and switches as it may deem necessary.</p> <p>3. Route —• Map. A map on which a proposed railroad is delineated by a single red line, which furnishes no indication whether the line is the center or an exterior lino of the proposed route, nor of its width or the amount of land to he taken, does not comply with a statute authorizing a railroad company to lay out and construct its road not exceeding six rods in width, and requiring it to make a map and profile of the route adopted by it.</p> <p>4. Right op Way — Additional Tracks. If the location or route of a propose 1 railroad is indefinitely described upon the map filed by the company and in the instrument executed by a property owner conferring a right of way upon it, the track as established at the time of the grant of the right of way and with reference to the location of which the consent was given, should he held unchangeable, and additional tracks, switches or sidings cannot be constructed without the property owner’s permission or the acquisition of the right through statutory condemnation proceedings.</p> <p>5. Additional Tracks—Injunction. A railroad company entitled to maintain and operate a single track in the highway becomes a trespasser if, without permission of the owner or acquisition of the right to do so, it adds to its tracks by the construction of switches and sidings, and it is liable to be restrained in its operations and for the damages sustained.</p> <p>6. Damages — Additional Tracks. A property owner who has consented to the construction and operation of a single-track railroad in front of his premises may >-ecover damages resulting from the operation by the railroad company of additional tracks without right, so far as such damages are separable from the injury consequent upon the operation of the single track.</p>

This action was brought to recover upon a policy of life insurance. The facts, so far as material, are stated in the opinion. The court erred in excluding evidence of the sickness of the insured prior to the time the application was made. (Dwight v. G. L. Ins. Co., 103 N. Y. 341; Cook v. Barr, 44 N. Y. 156; Smith v. Nat. B. Society, 123 N. Y. 85; B. L., etc., Co., v. Knights Ternplar, 126 N. Y. 450; Helwig v. M. L. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The receipt is not a contract, and oral evidence explaining it was admissible. (C. A. G. Co. v. U. S., 20 Ct. of Cl. 1; Herrick v. Throop, 24 Fed. Rep. 532; Hotchkiss v. Mosher, 48 N. Y. 478; Abbe v. Eaton, 51 N. Y. 410; Mosel v. F. B. Co., 2 App. Div. 95; Pfeifer v. Campbell, 111 N. Y. 631; Ryan v. Ward, 48 N. Y. 204; Boardman v. Gaillard, 60 N. Y. 614; Patterson v. Ackerson, 2 Edw.

The facts, so far as material, are stated in the opinion. This court has jurisdiction to entertain the appeal from, the order for the reason that the Appellate Division affirmed the proceedings of the board in refusing to seat the relator. (Code Civ. Pro. § 190, subd. 1; People ex rel. v. Board of Tax Comrs., 85 N. Y. 655; People ex rel. v. Comrs., 103 N. Y. 370; People ex rel. v. York, 166 N. Y. 582.) This appeal only involves the determination of questions of law.

The nature of the action and the facts, so far as material, are stated in the opinion. ' Numerous errors were committed upon the trial in the admission of evidence which call for a reversal of the judgment. (Foote v. Beecher, 78 N. Y. 158; Jefferson v. N. Y. E. R. R. Co., 132 N. Y. 487; Schoonmaker v. Wolford, 20 Hun, 168; Matter of Smith, 95 N. Y. 527; Eldredge v. Eldredge, 79 Hun, 516.) There was no error in the admission or rejection of evidence.

The facts, so far as material, are stated in the opinion. The attorney-general cannot maintain an action to dissolve the appellant in the name of the People, without a relator, merely because the superintendent of banks deems it “unsafe and inexpedient” for the corporation to continue business. (People v. M. C. Bank, 53 App. Div. 295; People v. R. S. & L. Assn., 53 App.

Clark, an alleged incompetent person. The facts, so far as material, are stated in the opinion. The finding of the jury, “ That the said Eugene P. Clark is an incompetent person and unfit to manage his affairs. That such infirmity manifests itself in weakness of mind,” is not a compliance with the statute and is insufficient and could not be confirmed by the County Court.

<p>Partnership — Firm Name — Right to Use Is a Firm Asset Subject to Sale in Action for Partnership Accounting. Where a sale of the good will and assets of a copartnership has been ordered, in an action brought by the executrix of a deceased partner against a surviving partner for an accounting and a sale and distribution of the firm property, the right to continue the use of the firm name, under which the firm has done business for many years, is a firm asset which does not inure to the benefit of the surviving partner alone, but is subject to sale with the other firm property without condition, restriction or limitation upon the purchaser, and the estate of the deceased partner is entitled to share in the benefits thereof in the same manner that it is entitled to share in the distribution of the other firm property ; the purchaser at such sale, whether the surviving partner or otherwise, acquires the right to continue the business under the firm name upon complying with the provisions of sections 20 and 21 of the Partnership Law (L. 1897, ch. 420).</p>

<p>Guardian and Ward—When General Guardian op Infant May Maintain Action against Sureties upon Bond op Deceased General Guardian for Moneys Adjudged to Be Due Infant upon Involuntary Accounting by Administrator of Deceased Guardian. Where the general guardian of an infant, appointed to succeed a deceased general guardian, has obtained, in a proceeding in Surrogate’s Court compelling the administrator of the deceased guardian to account for the property of the infant held by his intestate at the time of her death, a decree adjudging that a certain sum was due the infant and directing it to he paid to the general guardian of the infant, a certified copy of which decree was served upon the administrator of the deceased guardian and payment of the sum named therein demanded, which was not paid, the general guardian of the infant may maintain an action as such against the sureties on the bond of the deceased guardian for the amount due the infant; it is not necessary that the general guardian be appointed a guardian ad litem, for that purpose, nor is it necessary that an execution be first issued upon the surrogate’s decree and returned unsatisfied under section 2607 of the Code of Civil Procedure, since such section must be read in connection with section 2606, which provides for a situation where such action may be brought without issuing an execution, and, therefore, creates an exception to the general rule provided for by the other section; the recovery in such case cannot be defeated by an attack upon the sufficiency of the bond of the present general guardian, the sole object of which is to protect the infant, since, under section 2746 of the Code of Civil Procedure, the amount and sufficiency of such bond is within the discretion of the surrogate• having jurisdiction, and if the bond was insufficient it was his duty and within his authority to require an additional bond, but such additional bond is not a condition precedent to the bringing of the action, and, although the decision of the surrogate as to such bond could be reviewed on appeal from his decree, it cannot be attacked collaterally in the action.</p>

<p>Receiving Stolen Property—Evidence oe Defendant’s Receiving Goods Stolen by Same Thieves from Another Owner—Admissible to Show Guilty Knowledge.</p> <p>Upon the trial of a defendant indicted for the crime of feloniously receiving stolen property, known to him to have been stolen, evidence that the defendant had received property stolen by the same thieves from a different owner is admissible to establish the guilty knowledge of the defendant in receiving the property charged in the indictment to have been stolen. '</p>

The nature of the action and the facts, so far as material* are stated in the opinion. The plaintiff established his right to a vendor’s lien and to a judgment enforcing the application upon the purchase price •of the proceeds of the incumbrance placed by the defendant upon the property. (Maroney v. Boyle, 141 N. Y. 462; Seymour v. McKinstry, 106 N. Y. 230; Benedict v. Benedict, 85 N. Y. 625; McWhorter v. Stewart, 39 App.

The facts, so far as material, are stated in the opinion. The order is appealable. (Merges v. Ringler, 158 N. Y. 701; Kingsland v. Fuller, 157 N. Y. 507.) The court did not violate rule 49 in the appointment of guardians ad liiem. (Brevoort v. Brevoort, 70 N. Y. 136; Smith v. Smith, 10 Paige, 470; Hayward v. Judson, 4 Barb. 228; Gallie v. Eagle, 65 Barb. 583; Huntington v. Huntington, 9 Civ. Pro. Rep. 182; Tilton v. Vail, 42 Hun, 638; 53 Hun, 324; Eisner v. Curiel, 2 App.

Appeals from a judgment, of the Supreme Court, rendered at a Trial Term for the county of Columbia, April 18, 1902, upon a verdict convicting defendants of the crime of murder in the first, degree. The facts, so far as material, are stated in the opinion.

Appeals from orders of the Appellate Division of the Supreme Court in the second judicial department, entered January 13, 1903, which affirmed orders of Special Term granting peremptory writs of mandamus requiring the defendants, constituting the state civil service commission, to place the positions held by each of the relators herein in the exempt class. The facts, so far as material, are stated in the opinion. Mandamus is not the proper remedy for the relief sought.

The nature of the action and the facts, so far as material, are stated in the opinion. Where damages have been recovered against a person not at fault on account of the negligence of some third party, the person so held liable may pay the judgment and thereupon sue the guilty party and recover.

The facts, so far as material, are stated in the opinion. The court below erred in admitting incompetent evidence over the objections of the defendants. (Matter of Thompson, 127 N. Y. 463; Jamieson v. K. C. E. R. R. Co., 147 N. Y. 325; Witmark v. N. Y. El. R. R. Co., 149 N. Y. 393; Gutman v. Ry. Co., 91 Hun, 642; Winters v. Ry. Co., 15 Misc. Rep. 8; Boetzkes v. M. Ry. Co., 1 App. Div. 526; Innes v. M. Ry. Co., 3 App. Div. 541; Stuyvesant v. M. Ry. Co., 4 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff cannot recover because its proof of loss was not served upon the defendant within sixty days after the fire. (P. P. G. Co. v. S. G. Ins. Co., 189 Penn.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment in the former case, of the defendant against the plaintiffs, in the action for the balance of the contract price for these same carriages remaining unpaid, is a bar to this action.

The nature of the action and the facts, so far as material, are stated in the opinion. ■The respondent has wholly failed to bring his loss within the terms of the policy, or within any reasonable interpretation of the policy. (W., etc., R. Co. v. T. Ins. Co., 180 Mass. 263; P. I. Co. v. E. A. Ins. Co., 161 Mass. 122; Horse Car Co. v. F. & C. Co., 160 Penn. St. 350; Wollman v. F. & C. Co., 87 Mo. App. 677.) The policy must be interpreted according to the intent of the parties.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in excluding evidence that since January 1, 1899, the defendant had been incompetent, by reason of lunacy, to manage his affairs, and in refusing to try the issue of the sanity of the defendant at the date of the appraisal. (Merritt v. Merritt, 43 App. Div. 68; 27 App. Div. 210; Booth v. Fuller, 35 App.

The nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. Real Property—Deeds — Constructive Notice. A grantee is presumed to have examined the conveyances in his chain of title and is chargeable with constructive notice of a lease of a portion of the premises for a term of years, and of the rights of the lessees thereunder, although the lease was never recorded, where all the conveyances, except the deed to such grantee, contained exceptions and reservations of the rights of the lessees under the lease, especially where an assignee of such lease was occupying the leasehold premises and the slightest inquiry by the grantee would have disclosed the facts.</p> <p>2. Merger—Fee — Lease. The acquisition by the owner of real property in fee of an outstanding lease of a portion of the premises for a term of years, under which a building erected thereon by the lessees is declared in legal effect to be personal property subject to the right of removal at the expiration of the term, does not merge the title to such building in the fee of the land, since such title does not rest upon the law of merger, but upon the terms of the lease.</p> <p>3. Appeal — Findings — Conclusiveness. The Court of Appeals is confined to the findings of fact made by a referee and is not permitted to look into the record for additional facts.</p> <p>4. Evidence — Immateriality. The erroneous admission of immaterial evidence does not constitute prejudicial and reversible error when it has no bearing upon the issues.</p> <p>5. Same. The admission of incompetent and immaterial evidence by a referee in a causé tried before him is not ground for reversal where it. worked no such prejudice as to constitute reversible error.</p>

(175 N. Y.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 26, 1902, reversing a judgment of the Hew York Court of General Sessions, which allowed a demurrer to the indictment, and directing the defendants to plead thereto. The defendants demurred upon various grounds, but principally upon the ground that the facts stated did not constitute a crime, and that is practically the only ground relied upon.

<p>1. Fobgeby—Evidence—Sufficiency of Evidence Cobbobobating Accomplice a Question of Fact—Absence of Such Evidence Pbesents Questions of Law—Code Cbim. Pboc., Sec. 399.</p> <p>Under section 399 of the Code of Criminal Procedure, providing that “ a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the crime,” the corroboration must be of a character and quality which tends to prove the defendant’s guilt by connecting him with the crime. If there is evidence fairly tending to show such connection, so that the conviction will not rest entirely upon the evidence of the accomplice, then the question whether the evidence is a sufficient corroboration to induce the jury to find against the defendant is for it to determine; but if there be no evidence tending to connect the defendant with the commission of the crime, a question of law is presented, which is reviewable by this court.</p> <p>2. Same—Testimony of Two Accomplices must be Cobbobobated.</p> <p>The testimony of two accomplices does not fulfill the requirements of the statute as to corroboration, and the court erred in denying the defendant’s request to advise the jury to acquit and in refusing to charge that there was no evidence corroborating the evidence of the accomplice.</p>

<p>1. Penalties — One Action fob One Penalty. A party suing for penalties can recover for but one violation or one default prior to the commencement of the action.</p> <p>2. Cobpobation—Refusal to Exhibit Stock Book to Stockholdeb — Stock Cobpobation Law, Section 53— Accumulated Penalties Not Recovekable in the Same Action. The refusal of the secretary of a corporation to permit a stockholder at his request to examine the stock book, followed the next day by a similar demand and refusal, and'the president’s refusal of the same request the day following, constitute but one demand and but one refusal on one occasion and not three demands and three refusals, and renders each officer and the corporation liable to but one penalty under section 53 of the Stock Corporation Law, imposing a penalty upon each officer of a corporation who refuses to exhibit the stock book, and also a like penalty upon the corporation.</p>

<p>1. Murder—Sufficiency of Evidence.</p> <p>The evidence upon the trial of an indictment for murder examined and held sufficient to warrant a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>2. Special Jury Law Constitutional—Acts of Commissioner of Jurors de Facto Valid.</p> <p>A challenge to the panel or the array is properly overruled where it is based upon the claim that the Special Jury Law (L. 1896, eh. 378) is unconstitutional, and that the panel was drawn by a person who was not a commissioner, since the law is constitutional, and the mere fact that another person was subsequently declared entitled to tie office does not affect the validity of the official acts of the incumbent for the time being.</p> <p>3. Jury—Challenge for Cause.</p> <p>The knowledge or ignorance of a juror concerning questions of law is not a proper subject of inquiry upon the trial of a challenge for cause.</p> <p>4. Evidence—Dying Declarations.</p> <p>Declarations of the deceased to the effect that her husband shot her, made under circumstances warranting the conclusion that what she said was in view of impending death without any hope of recovery, are properly admissible in regard to the cause of death and the author of the crime.</p> <p>5. Trial—Opening Address of District Attorney.</p> <p>Where nothing is said in the opening address of the prosecuting officer which exceeds the proper limit of advocacy, no question of law is presented for review by the Court of Appeals.</p> <p>6. Refusal of the Court to Hear Additional Requests to Charge.</p> <p>A ruling by the court that questions by jurors must be through the foreman is reasonable and within its discretion, and a refusal of the court, late at night, to hear counsel when the jury who had retired came in for further instructions, where every aspect of the case had been already covered by the charge, is not reversible error.</p> <p>7. Evidence—Immaterial Error in Exclusion of—Code Grim. Prog., Sec. 542.</p> <p>The exclusion of testimony tending to prove that three years prior to the homicide a pistol had been in the hands of the deceased and that she then stated that she intended to commit suicide, while erroneous, under the circumstances not regarded as material.</p> <p>8. Same.</p> <p>The admission in evidence of records from the police courts of criminal proceedings instituted by the wife against the defendant several years before, in order to show the relations between the husband and wife, and hence a motive on his part for the commission' of the crime, not objected to specifically on the ground that they were not evidence of the crime charged therein, but generally upon the ground that they were too remote, cannot be regarded as a substantial error where it could have worked no prejudice to the defendant.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in refusing to hold that the plaintiff cannot recover any damages in this action because of his omission to present such a claim for damages in writing to the common council at least three months before commencing the action.

<p>Railroads — When Owners of Land Abutting on Park Avenue in the City of New York Can Maintain Actions against the New York and Harlem Railroad Company for Damages to Fee and Rental Value Caused by the Station Houses of the Company. While the owners of land abutting on Park avenue in the city of New York cannot maintain an action against the New York and Harlem Railroad Company to restrain the maintenance and operation of the railroad of defendant upon the viaduct structure erected in and through that street under the statute (L. 1892, ch. 339), or, as an alternative, to recover damages resulting to the fee and rental value of the premises, such owners may recover both fee and rental damages where the station houses of the company occupy more of the street than the viaduct and thereby deprive the owners of their easements of light, air and access to the premises.</p>

, The nature of the action and the facts, so far as material, are stated in the opinion. The ease was for the jury. (Eastman v. Shaw, 65 N. Y. 522; Claflin v. Boorum, 122 N. Y. 385; McDonald v. M. S. Ry. Co., 167 N. Y. 69; Padburg v. M. S. Ry. Co., 75 N. Y. Supp. 952; Gildersleeve v. Landon, 73 N. Y. 609; Volkmor v. M. Ry. Co., 134 N. Y. 422; Kennedy v. McAllister, 31 App.

■ The nature of the action and the facts, so far as material, are stated in the opinion. It was material error to admit the testimony of the plaintiff in regard to the conversations between his aunt and-uncle and with regard to going with his aunt to the bank and drawing the money, and afterwards to the office where the deed to this property was taken.

The nature of the action and the facts, so far as material, are stated in the opinion. Whether the plaintiff had equal knowledge with the defendant of the risks, and assumed it, was a question for the jury. (Daley v. Union Dry Dock Co., 29 N. Y. Supp. 1063; 151 N. Y. 649; Johanssen v. Eastmans Co., 44 App. Div. 270; 168 N. Y. 648; O'Maley v. Light Co., 158 Mass. 135; Galazzo v. Steamship Co., 27 App. Div. 169; Yaw v. Whitmore, 46 App.

<p>Appeal&emdash;Compensation to Counsel on Appeal in Capital Case UNDER SECTION 308 OF THE CODE OF CRIMINAL PROCEDURE. An application to the Court of Appeals pursuant to section 308 of the Code of Criminal Procedure, to fix the compensation of counsel for services rendered on appeal in a capital case, will be denied where the sole object of the appeal was to secure delay for the defendant.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants, common carriers, were guilty of a violation of a duty imposed by statute when they delivered merchandise for which a bill of lading had been issued not bearing upon its face the words “ nonnegotiable” without demanding the surrender and cancellation of such bill. (Colgate v. P. R. R. Co., 102 N. Y. 120; F. Nat.

The facts, so far as material, are stated in the opinions. Mandamus should not issue. (In re Haebler v. N. Y. P. Exchange, 149 N. Y. 418; People ex rel. v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 575; Matter of Guess, 16 Misc. Rep. 306; People ex rel. v. Cruger, 12 App. Div. 536; Matter of Grady, 15 App. Div. 504; Matter of Kennedy, 75 App. Div. 188.) Ho demand was made upon the respondents for the relief demanded. (People ex rel. v. Cruger, 12 App.

February 23, 1901, upon a verdict convicting the defendant of the crime of murder in the first degree. The facts, so far as material, are stated in the opinion.

<p>Taxpayer’s Action — Action under Statutes (Code Civ. Pro. § 1925; L. 1892, Ch. 301, or L. 1899, Ch. 370, § 27) Cannot Be Maintained to Restrain Payment of Salary to Public Officers Holding Presumptively Valid Appointments. A taxpayer’s action to restrain the payment of salaries to public officers holding regular and presumptively valid appointments in the civil service cannot be maintained under any of the statutes authorizing such actions (Code Civ. Pro. § 1925; L. 1892, ch. 301, or L. 1899, cli. 370, § 27), upon the ground that, although the appointments are valid in form, they are invalid in fact; since the salary of an office is property, the right to which depends upon the right to the office and the former cannot be constitutionally taken away until the latter is destroyed, and when the question of title to the office is not collateral or incidental, but on the contrary is the central and pivotal question, the proper remedy is a proceeding by quo warranto.</p>

<p>1. Practice — Action by Wipe for Negligence and by Husband for Loss of Services Arising from Same Injury Triable Together — Inconsistent Verdicts Require Setting Aside of Both. It seems, that the practice of trying, with the consent of all concerned, the wife’s action for personal injuries caused by negligence and the husband’s action for loss of services owing to the same injury, at the same time and submitting them to tire samo j ury upon the same evidence, should not be discouraged, since it saves the time of the court and witnesses and reduces the expenses of the parties. When, however, the two actions are thus tried together and inconsistent verdicts are rendered, sound practice requires both verdicts to be set aside at once, without attempting by analysis of the evidence, or otherwise, to discover whether either should be allowed to stand.</p> <p>2. Evidence — Incompetency of Opinions of Lay Witness. Where the main issue in an action for negligence is whether the plaintiff had had a miscarriage, which fact had not been established, the denial of a motion to strike out her answer to a question assuming such fact, upon the ground that it involved a conclusion of the witness, constitutes reversible error.</p> <p>3. Same. Evidence of witnesses who in their opinion had had miscarriages, to the effect that what happened to the plaintiff was the same as had happened to themselves.-is incompetent and its reception constitutes reversible error.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The language upon which it is sought to base this alleged contract is indefinite, uncertain and incapable of an intelligent meaning. (22 Am. & Eng. Ency. of Law, 1006; Foote v. Webb, 59 Barb. 38; Pt.

<p>Appeal from a judgment of the Supreme Court, rendered at a Trial Term for the county of Schoharie January 24,1902, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 22, 1902, modifying and affirming as modified a judgment in 'favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from a order of the Appellate Division of the • Supreme Court in the second judicial department, entered March 6, 1903, which affirmed an order of the Kings County Surrogate’s Court vacating a former decree assessing a transfer tax on the estate of William Scrimgeour, deceased.</p>