(Donnelly

3. Counsel fee should be allowed where the wife has succeeded before the referee, in case the husband desires to further prosecute. (Id.)

DOWER.

1. The plaintiff sues for admeasurement of her dower in real estate at corner of Broadway and Howard street. William D. Blackwell died in 1848 intestate, possessed of the property in question, leaving a widow, Mrs. L. A. Blackwell, one daughter, Mrs. L. A. Poillon, and one son, Joseph Blackwell, who subsequently married plaintiff. Joseph Blackwell died in 1859 intestate, without issue, and possessed of an undivided one-half of these premises, subject to his mother's dower right. He left him surviving his widow, the plaintiff, his sister and his mother. After his death his sister executed leases in her own name on the different parcels of real estate. These leases were outstanding at her death. She died in September, 1866, leaving a will appointing trustees of her property. After her death, the trustees appointed by her executed leases of separate parts of these premises for two years. Mrs. L. A. Blackwell and plaintiff joined with the trustees in the leases, and the rents were to be divided as agreed upon. The trustees received three-ninths, Mrs. L. A. Blackwell five-ninths, and the plaintiff one-ninth. L. A. Blackwell died February 8, 1873. The original trustees under the will of Mrs. Poillon resigned, and new trustees were appointed, who took a conveyance of the property, subject to the plaintiff's dower right. (Aikman agt. Harsell, ante, 110.)

Mrs.

precluded herself from demanding further admeasurements of her dower, and that she could not have dower out of lands of which the ancestor's widow was endowed:

Held, that there had been no assignment of the dower of Mrs. L. A. Blackwell intermediate the death of her husband and of her son Joseph; and that upon the death of Joseph her right of dower became merged in the life estate which she acquired by statute in his undivided one-half of the lands.

Held, that nothing was done by plaintiff, Mrs. L. A. Blackwell and Mrs. Poillon, prior to the latter's death, which estopped the plaintiff from maintaining this action, and that plaintiff's subsequent joining with the trustees in the leases was not an admission that her dower had been assigned, and that she was only entitled to one-ninth of the rent of the lands. (Id.)

EJECTMENT.

1. A defendant who has been evicted from the possession of real estate by virtue of a judgment in favor of the plaintiff in an action of ejectment, provided a new trial is granted in such action upon an appeal, and he succeeds upon such new trial, cannot enter a formal judgment of restitution upon such verdict, without an order of the court allowing it. (Martin agt. Rector, ante, 362.)

EVIDENCE.

1. On the trial of an indictment for attempting to obtain public moneys by presenting a fraudulent account for burial and taking care of dead bodies, it was claimed that the defendant had agreed with one C. as to the cost of a certain burial included in said account, and that C. had paid the same. C. testified that before making the arrangement with defendant, he had bar

2. Examinations taken in supplementary proceedings being now admissible in evidence under sec tion 2460 of the Code, as amended, as an admission against the interests of the party examined and against a defense he may set up, the exclusion of such testimony in which defendant swore he was not a partner in a certain firm, necessitates the reversal of a judg ment for defendant entered on dismissal of plaintiff's complaint, even though witnesses called by the plaintiff testified that defendant was a partner, it not being so clear that no injury was done the plaintiff by the exclusion of the testimony offered as that the judg ment should nevertheless be sustained. (Dusenbury agt. Dusenbury, ante, 349.)

3. Evidence in actions for divorce upon the ground of adultery should be closely scrutinized, and, unless clearly convincing and pointed, the presumption of innocence should prevail. In such actions the defendant is at the mercy of a witness. (Donnelly agt. Donnelly, ante, 481.)

4. Counsel fee should be allowed where the wife has succeeded before the referee, in case the husband desires to further prosecute. (Id.)

See ASSIGNMENT.

Johnson agt. Williams, ante, 233.

5. Upon the trial of the plaintiff in error for the crime of abduction, the defense being insanity, his

counsel requested the court to charge that the true test of criminal responsibility, where the defense of insanity is interposed to an indictment, is whether or not the accused had sufficient reason to know right from wrong, and whether or not he had sufficient power of control to govern his actions. The court charged the first part of the request, but declined to charge the latter portion

thereof:

Held, no error; that if the accused had sufficient reason and intelligence to know right from wrong, it was a matter of no moment whatever whether or not he had sufficient power to control or govern his actions. (Walker agt. People, 26 Hun, 67.)

6. The judge charged the jury that, to establish a defense on the ground of insanity, it must be clearly proven that at the time of committing the act, which was the subject of indictment, the accused was laboring under such a defect of reason from a disease of the mind as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know that he was doing wrong; that if the testimony satisfied them beyond reasonable doubt of his guilt, and that he was not insane, it would be their duty to convict; and further, that if there was any reasonable doubt arising upon the evidence in the case, and upon nothing else, it would be their duty to give him the benefit of that doubt and acquit him.

The prisoner's counsel requested him to charge that the defendant in a criminal case was not required to prove his insanity in order to avail himself of that defense, but merely to create a reasonable doubt upon this point, and that thereupon the burden of proving the sanity falls upon the people. This the judge declined to charge:

Held, that in view of the charge already given the judge com

mitted no error in refusing to charge as requested. (Id.)

7. In an action brought to foreclose a mortgage, the martgagor defended on the ground that the mortgage was given as collateral security for the performance of an agreement made by him to convey certain real estate to the mortgagee, the plaintiff's testatrix, and that he had offered to perform the agreement by tendering a sufficient deed. Upon the trial the defendant testified in his own behalf that he had seen a paper signed by the plaintiff's testatrix and himself, and produced evidence tending to show that it was lost. He was then allowed, against the plaintiff's objection and exception to testify that the paper had been read to him and to state its contents:

Held, that the evidence was inadmissible under section 829 of the Code of Civil Procedure. (Hadsall agt. Scott, 26 Hun, 617.)

8. Another defendant, a subsequent mortgagee, was called by the mortgagor and allowed to testify in his behalf as to a conversation had with the deceased:

Held, that the evidence was inadmissible. (Id.)

9. After an action had been brought upon the note of a firm against the surviving members thereof, and an execution issued upon a judgment recovered therein had been returned unsatisfied, this action was brought thereon against the executors of one who was claimed to have been a member of the firm :

Held, that it was error to allow one of the surviving members to testify upon the trial as to personal transactions had with the deceased, which tended to show that deceased was a member of the firm. (Hunter agt. Herrick, 26 Hun, 272.)

10. This action was brought upon an alleged guaranty by the defend- |

ant of the payment of certain bonds and coupons purchased by the plaintiffs' testator. The guaranty was as follows: "Whereas, I have this day agreed with Lot C. Clark (the plaintiffs' testator) to purchase upon the most favorable terms for our joint account fifty thousand dollars of the bonds of * * Now, for and in consideration of one dollar to me in hand paid, I do hereby guaranty the collection and punctual payment of the said bonds and the coupons thereon, and do further agree to hold said Clark harmless against all loss arising from the

same:

*

Held, that the court erred in refusing to allow the defendant to testify that neither the bonds in suit nor any others had ever been purchased by him upon the joint account of the testator and himself. (Sutherland agt. Woodruff, 26 Hun, 411.)

11. After the commencement of this action, which was brought to foreclose a mortgage, the plaintiff made a general assignment, and thereafter his assignee was, by an order granted upon a motion made upon due notice to the defendant, substituted as plaintiff in his place and stead. Upon a trial before a referee the order and motion papers were, against the defendant's objection and exception, received in evidence :

Held, that the papers were properly received in evidence, and that, in the absence of proof to the contrary, they proved the transfer of the bond and mortgage to the plaintiff and his ownership thereof. (Smith agt. Zalinski, 26 Hun, 225.)

12. After a steamer was disabled, the

shipper's agent stated to the master of the steamer his inability to preserve meat shipped on the vessel for such a period of time as would necessarily be required to complete the voyage to Liverpool under sail :

Held, that the evidence was properly received in an action for damages for loss of the meat by decay. (Sherman agt. Inman Steamship Co., 26 Hun, 107.)

13. Section 872 of the Code of Civil Procedure, as amended by chapter 536 of 1880, providing for the examination of the parties to an action before trial, authorizes the examination of the officers and directors of a corporation, when their testimony is necessary and material, but does not authorize the examination of its servants, agents or employes. (Reichman agt. Manhattan Co., 26 Hun, 433.)

14. The presumption of law, that a sane man found dead has not committed suicide, does not extend to the case of an insane man so found. (Germain agt. Brooklyn Life Ins. Co., 26 Iun, 604.)

EXAMINATION OF PARTY BEFORE TRIAL.

1. When a plaintiff has examined the defendant under the provisions of the Code, he may nevertheless bring such defendant into court as a witness to prove additional facts about which no examination was had. (Berdell agt. Berdell, ante, 339.)

2. An order for the examination of a party before trial as a witness should not be granted, where the entire object of the examination sought is to show by the party that he has procured property by means of false and fraudulent representations. (Yamato Trading Company agt. Brown, ante, 283.)

3. Such an order is unauthorized, and, if made, will be reversed. (Id.)

4. This action was brought to recover damages for the publication by the defendant, in its newspaper, of a libel, charging that

the plaintiff, who was then running for office, was during the war for the suppression of the rebellion a rebel spy, and that he had been, as such, arrested within the Union lines and imprisoned some fourteen months. The defendant before answering, upon an affidavit showing that it intended to justify the statement and prove, in mitigation of damages, that it was published in full belief of its truth, procured an order requiring the plaintiff to appear and be examined. It appeared from the affidavit that the only facts and circumstances as to which the defendant desired to examine the plaintiff, were such as tended to show that the plaintiff was a rebel spy and had been arrested and imprisoned as such:

Held, that as every issue as to which the testimony of the plaintiff was sought, was such that an affirmative answer to the questions to be put to the plaintiff, would subject him to a criminal prosecution, or to a penalty or forfeiture, or would render him imfamous, he would be privileged from answering them, and that the order should not have been granted, as it could only serve to compel the plaintiff to appear upon the record as pleading his privilege. (Kinney agt. Roberts, 26 Hun, 166.)

5. That an examination should not have been ordered to enable the defendant to procure evidence which would tend to mitigate the damages, as the facts and circumstances to be available for that purpose must have been known to and believed by the defendant at the time of the publication of the libel. (Id.)

6. The special county judge of Oneida county has power to make an order requiring a party to appear and be examined under the provisions of the Code of Civil Procedure, upon the application of his adversary. (Id.)

EXECUTION.

1. For the enforcement of a lien of an execution upon personal property, a levy and sale is necessary, and such levy must be made during the lifetime of the execution. No constructive levy can arise or be presumed from the mere delivery of the execution. After the return day thereof without a levy, all claim to a lien is lost. (Walker agt. Henry, 85 N. Y., 130.)

2. Where upon application under the statute (2 R. S., 31, sec. 1 et seq.) for the discharge of a debtor imprisoned on execution, a question of fact arises as to whether the petitioner has disposed of his property with intent to defraud, the determination of the court below is not reviewable here (Code of Civil Procedure, sec. 1337). (In re S., 85 N. Y., 630.)

3. It seems, that a sale of land under execution against a third party will not be restrained at the suit of one in possession having the paper title. (Lehman agt. Roberts, 86 N. Y., 232.)

4. Property of N. was sold on execution against him in favor of defendant, and bid off by the latter; a surplus of the purchase price, after paying the executions, was not paid over by defendant to the sheriff:

Held, that an action could be maintained by plaintiff as receiver of the property of it, appointed in proceedings supplementary to execution against him to recover the surplus. (Davenport agt. McChesney, 86 N. Y., 242.)

5. Also, that if any counter-claim or equity existed which should debar plaintiff from recovering this surplus, it should have been asserted by defendant and established on the trial. (Id.)

6. Under the Code of Civil Procedure (sec. 1368), where an execu

7.

tion omits to give directions as to the collection of interest, it is properly satisfied when the amount of the judgment is collected. (Todd agt. Botchford 86 N. Y., 517.)

So, also, the judgment creditor having chosen not to assert the right given him to collect interest, cannot issue another execution after satisfaction of the first. (Id.)

8. It seems, that where a sheriff, without collecting the full amount required by the mandate of an execution, returns the same satisfied, and an entry to that effect is made upon the docket, the remedy of the party is by motion to vacate the return and have the entry modified, or by suit for compensation. (Id.)