Volume 50 — New York State Reporter

<p>1. Bills and notes—Burden of proof.</p> <p>Where the answer admits the making of the note in suit, but alleges that it was made pursuant to certain agreements which were not set out in the complaint, the burden of proving such agreements is on the defendant.</p> <p>3. Same—Appeal.</p> <p>The point that the note contained the condition that bonds deposited as security should be returned before payment was due, cannot be raised for the first time on appeal to this court.</p> <p>3. Same—Agreement—Covenant as to unity of action.</p> <p>A covenant in a collateral agreement that in a certain event the members of a syndicate should act as a unit, is only made for the benefit of such syndicate, and cannot be taken advantage of by defendant, who is not a member.</p>

<p>Attorneys—Contingent pees—Lien—Value op services.</p> <p>Defendant L., an attorney, was employed to bring certain suits, his compensation to be contingent on recovery. He, by his clients’ consent, employed plaintiff as counsel under a like agreement. A recovery having been had and the proceeds placed in the hands of a trustee, this action was brought for the compensation due the counsel and attorney, and the judge at special term determined the amounts due, and gave them an equitable lien upon the funds in the hands of the trustee. Held, error; that while the agreement gave plaintiff an equitable lien on the proceeds, as it did not fix the sum, plaintiff was bound to establish the value of his services upon the trial by evidence competent against all the parties interested, and that an agreement between the different counsel agreeing what share each wanted in the funds furnished no evidence of the value of them services.</p>

<p>Motion for reargument.</p>

<p>1. Judgment—Correction of.</p> <p>If the judgment entered in an action be not in pursuance of the decision, or be improper in form, the defendant, if he has an opportunity, should object thereto and then make a motion to correct it; and if his motion be denied, and the defect or error be matter of substance, he may appeal, in a proper case, even to this court for its correction. If the judgment be really objectionable, an appeal therefrom is not the proper remedy.</p> <p>2. Motions and orders—Affidavit.</p> <p>A statement in an affidavit that deponent denies that he had information or knowledge sufficient to form a belief, and alleging that he had no knowledge and information sufficient to form a belief, is an absolute nullity. Such form of denial is authorized only in a pleading.</p>

<p>1. Contract—Construction.</p> <p>A contract for the erection of certain houses for defendant provided that he might at any time during the progress of the work require any alteration, deviation, addition or omission from the contract to he made, and that the amount of the same, upon a fair and reasonable valuation, should be added to or deducted from the amount of the contract, as the case might be. Held, that this would cover double plumbing, of which the specifications made no mention, and that for this a fair and reasonable compensation should be made.</p> <p>2. Same.</p> <p>By a prior contract, which had been abandoned, plaintiff had agreed to do such double plumbing at $800 per house. Held, that in the absence of other proof on the subject, this might properly be regarded as a fair and reasonable compensation for such extra plumbing done under the subsequent contract.</p>

<p>1. Homicide—Evidence.</p> <p>Upon the trial of defendant; charged with murder, the prosecution gave evidence tending to establish that defendant was alone with the deceased after four o’clock upon the afternoon in question ; had caused his boy to be sent away upon a letter forged by him, and had gotten the mother out of the shop ; that a butcher’s cleaver was in his hands ; that he had come there to collect some money, but was unsuccessful; that a few minutes after having been left alone with the deceased, he ran quickly from the shop ; that the autopsy revealed a wound of such severity and dimen- ■ sions as only a heavy instrument like a cleaver could have inflicted, and that from the appearance of the wound it must have been given from behind and not thrown at deceased, etc. Held, that the evidence, in connection with a voluntary confession to Inspector Byrnes that accused had killed the deceased in a quarrel, was sufficient, if believed by the jury, to make out a case of killing with deliberation and premeditation and to negative the theory of self defense.</p> <p>2. Same—Pbxvilegb—Physician.</p> <p>A phj sician who is sent by the prosecuting authority to make a report upon the sanity of thp prisoner is not barred under the statute from testifying what defendant stated about the matter of the killing, as the relation of physician and patient does not exist.</p>

<p>1. Summary proceedings—Adjournment.</p> <p>A justice has no power to adjourn a summary proceeding to a future day on his own motion where an answer has not been filed by the tenant.</p> <p>3. Attorneys—Authority.</p> <p>The authority of an attorney to appear for a party in a district court is to be presumed.</p>

<p>1. Executors and administrators—Accounting—Discharge.</p> <p>Where executors upon asking to be discharged hold a security which is larger than the trust estate for which it is held, and their successor refuses to receive the same, the expense for negotiating such security cannot be allowed on their final accounting.</p> <p>2. Same—Costs.</p> <p>Where executors ask to be discharged before fulfilling the trust, the expense of the special accounting rendered necessary thereby should not be charged to the estate.</p>

<p>1. Vendor and purchaser—Title.</p> <p>Where an agreed case stated that “more than thirty years ago” one 8. was the owner of the premises in question; that in 1851 G. gave a mortgage to S. to cover the parcel of ten acres, which contained a statement that it was given for purchase money, etc., and which was subsequently discharged by an assignee of the mortgage, but there is no statement in the case that 8. owned the ten acres when he took the mortgage from G., the court will not infer that S. owned the land at that time, and the record title is so imperfect that a purchaser will not be compelled to complete.</p> <p>2. Same—Adverse possession.</p> <p>The fact stated that G, and his grantees “were in the undisturbed possession of the land for twenty years and upwards,” does not show that the possession was adverse.</p>

<p>Appeals from judgments of the New York superior court, general term, affirming judgments in favor of plaintiffs entered upon reports of referee.</p>

<p>1. Railboads—Elevated—Damages.</p> <p>In estimating damages to property by reason of the construction of an elevated railway, the trial judge refused to find that the easements taken or impaired had, as to the abutting owner, only a nominal value, independent of their relation to the land. Held, error.</p> <p>2. Same.</p> <p>A very clear case should be presented on the part of the owner of improved property to justify an award of fee damages when an award of past damages is denied. The court ought not to assume that the present condition is not to continue, or to award fee damages on the speculation that by future changes in the operation of the road, or the location of its stations, the benefits which it now receives will be withdrawn.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.</p>

<p>Homicide—Appeal.</p> <p>Defendant, who occupied a set of rooms next to deceased, went into the room of the latter, and as deceased's father testified, when ordered out hy him, stabbed him with a knife. The testimony as to what occurred was very conflicting, defendant claiming that deceased and his father came into his room and attacked him with an iron and a club and that he seized a knife but did not know what he did with it. A boarder, one M., confirmed defendant’s story in part. Held, that there is no legal ground for disturbing the conclusion reached by the jury, as this court cannot reverse a verdict In a capital case unless it is of the opinion that the facts were not fairly considered or that they did not justify the verdict.</p>

<p>Appeal—Executors and administrators.</p> <p>An order denying a motion by an administrator for his discharge during the pendency of an accounting, and when further objections thereto are presented and facts appear militating strongly against his good faith, rests in the discretion of the surrogate, and an appeal from the order will not lie to the court of appeals.</p>

<p>No papers.</p> <p>Motion for re-argument.</p>

<p>Motion to withdraw or dismiss.</p> <p>No papers. ■</p>

<p>Appeal from decree of surrogate of Kings county adjudging that appellant had no interest in the estate of John H. Seebeck, deceased.</p>