Volume 46 — New York State Reporter

Appeal by the plaintiff, Mary S. Huber, from a judgment entered in Monroe county on the 8th day of October, 1890, dismissing her complaint, and from an order denying her motion for a new trial, made on the minutes of the court, and entered in the same county on the 26th day of May, 1891, after a non-suit of the plaintiff at the circuit.

<p>Trial—Findings.</p> <p>It is not reversible error for the court to direct requests to find to be marked “Refused, except so far as covered by the findings” already made, where the findings asked were not material to the decision of the case.</p>

<p>1. Pleading—Demurrer.</p> <p>On demurrer to an answer the defendant may show that on the record plaintiff is not entitled to final judgment.</p> <p>2. Same—Action against executor.</p> <p>In an action by the receiver of a legatee against an executor the complaint showed that the debtor was indebted to the testator, and. that the executor had paid him more than the difference between the debt and amount due on the legacy. Held, that it was the duty of the executor to first apply the debt upon the legacy, and as it appeared from the coplaint that he had paid more than the difference, there was nothing due to the legatee or his receiver, and the complaint was properly dismissed.</p>

<p>Appeal from judgment dismissing complaint, entered on report of referee.</p>

<p>Money paid.</p> <p>The right of a party to recover moneys advanced at the request of defendant, to he delivered to his agent, is not affected by the fact that some of such moneys were not delivered to the agent, but were disbursed by plaintiff at the agent’s request.</p>

<p>Depositions—Negligence—Examination oe plaintiff.</p> <p>An order for the examination of the plaintiff before trial in actions for _ personal injuries should be confined to questions as to the time and place " of the alleged accident and plaintiff's residence at that time.</p>

<p>1. Service—Notice of trial—Mail.</p> <p>Where notice of trial has been duly served by mail, the fact that the attorney to whom it was directed claims not to have received it is immaterial on the question of the right to proceed upon it.</p> <p>3. Reference—Consent.</p> <p>Where a case is properly referable, the court has jurisdiction to grant an order of reference irrespective of the consent of the attorney for a defendant who is in default.</p>

<p>Pleading—Amendment on trial—Teems.</p> <p>On sustaining demurrer to part of an amended answer the court gave defendant leave to serve a second amended answer, which leave he did not avail himself of. When the case was brought to trial he moved for leave to serve an amended answer. Held,, that payment of term fees from the time of service of the first amended answer and an affidavit of merits should have been required as conditions for granting such motion.</p>

<p>Surrogate’s court—Opening decree.</p> <p>The mere fact that the executor or his attorney in drawing a decree made a mistake on a matter of law is not sufficient to authorize the open-ing of the decree within the meaning of § 2481, subd. 6 of the Code.</p>

<p>1. Supplementary proceedings—Contempt—Special surrogate.</p> <p>A special surrogate who issued the original order in supplementary proceedings has power to punish a contempt thereof.</p> <p>2. Same.</p> <p>Evidence sufficient to establish contempt in disposing of property after service of order.</p>

<p>Limitation—Death op debtoe.</p> <p>The maker of a note executed in September, 1880, payable in one year, died in August, 1887. Contest arising over his will, no letters were issued on his estate until March, 1889, two days after the expiration of eighteen months from his death. Held, that as during this period there was no person in being_ against whom the holders oí the note could have brought suit to enforce it against the estate, this was in effect a statutory prohibition, and such time-was no part of the time limited for the commencement of an action.</p>

<p>1. Will—Genuineness of sig-natube.</p> <p>Where the testimony of the experts, upon a comparison of the signature to the will and genuine standards of the testatrix, handwriting, differ as to whether such signature is genuine or forged, but the subscribing witnesses, testify unequivocally to having seen the testatrix write the same, the weight of evidence is in favor of its genuineness, and a finding to that, effect will not be disturbed.</p> <p>2. Same.</p> <p>A signature cannot be held to be forged or simulated from the mere fact that it is divided in a different manner from that usually adopted by the testatrix, where it appears that she formerly wrote her name in that manner.</p> <p>3. Same—'Undue influence.</p> <p>Undue influence must be such as is exercised by coercion, imposition or fraud, and not such as arises from gratitude, affection, confidence and esteem; unless it be proved that a weak minded or deluded testator has been misled and deceived by artifice or fraud.</p> <p>4. Same—Errors in admission of evidence.</p> <p>If the error of the surrogate in the admission of evidence does not affect the determination on the merits, the decree should not be reversed.</p>

<p>Costs—Stenographer's fees on reference.</p> <p>The stenographer at a reference is not an officer of the court, and in the absence of a stipulation or entry on the minutes to the contrary, his fees cannot be taxed as a disbursement.</p>

<p>Excise—Premises near church.</p> <p>The prohibition contained in § 43 of chap. 401, Laws 1893, against licensing places for the sale of liquor within 300 feet of a church or school house, does not apply to persons who have heretofore been licensed, although such license expired the day prior to that on which the act took effect. Such person comes within the exception in the section and has a proprietary interest which the legislature intended should be protected.</p>

Appeal by plaintiff from judgment dismissing complaint after trial of the issues by a judge without a jury, and also from order denying plaintiff’s motion for a new trial.

<p>Trial—Order of proof.</p> <p>It is not error for the court to refuse to allow the defendant to prove his defense on the cross-examination of the plaintiff before the plaintiff rests.</p>

<p>Certiorari—Return.</p> <p>Where the return to a writ of certiorari does not state that all the acts and proceedings of the board are therein returned, and the case contains a judgment not referred to in the return, a further return will be directed.</p>

Action to enforce defendant’s liability under § 21, chap. 611, Laws of 1875, as a director of the American Opera Company, Limited, a corporation organized pursuant to that act, for the signing and filing of an alleged false report.

<p>Appeal from judgment entered after trial at special term.</p>

<p>Appeal by efendants from a judgment entered upon the report of a referee.</p>

<p>Appeal by defendants from a judgment entered upon the report of a referee.</p>

<p>Appeal by defendants from a judgment entered upon the report of a referee.</p>

<p>Appeal by defendant from judgment entered on verdict of jury and from order.</p>

<p>Appeal from an order denying defendants’ motion to remove from the judgment roll certain matter, etc.</p>

<p>Appeal by defendants from judgment entered on the report of a referee, awarding the plaintiff $797 damages, and restraining the defendants from the further operation of their elevated railway in front of the plaintiff’s premises, No. 792 Second avenue, unless within a time fixed by the decree the defendants pay the sum of §1,250, the value of the easements taken.</p>