FIRST DEPARTMENT, DECEMBER TERM, 1874. such surplus moneys, as may be just." While the moneys remain in court undistributed, the equitable powers of the court over the proceedings must be complete; and in opening the confirmation and referring the matter to the referee for further proofs, the court acts in the exercise of such powers. There is hardly any analogy between the motion for, and the granting of new trials in actions at law after issues tried, and the exercise by the court of its equitable powers over proceedings of this nature. They are not governed by the same technical rules, but by the wider discretion of equity, in seeking to do justice in accordance with its own established rules, without regard to legal technicalities which do not in the given case receive the approval of the court. In granting the order appealed from, the court below acted in the exercise of the discretion pertaining in such cases to courts of equity. It is insisted that for this reason the order is not appealable. We are not inclined to pass upon that question, because, in our judgment, the order may with propriety be affirmed. The report excluded the respondent from participating in the surplus to any extent, because his mortgages, which were prior liens in point of time, were void for usury. Under the circumstances of the case, and in view of the new facts presented on behalf of the respondent, the court deemed it just and equitable that a rehearing on the question of the validity of the mortgages should be had before the referee upon additional proofs, at the same time preserving all the testimony taken by the referee. We see no abuse of the discretion of the court that calls for our interference; on the contrary, the order seems not to have been improvidently made. It should be affirmed, with ten dollars costs on this appeal, besides disbursements. DANIELS and LAWRENCE, JJ., concurred. Ordered accordingly. FIRST DEPARTMENT, DECEMBER TERM, 1874. ROBERT SEAMAN AND OTHERS, APPELLANTS, v. JACOB GLEGNER, RESPONDENT. Code, § 304, sub. 3— when plaintiff not entitled to costs. Where, in an action brought to recover damages for the conversion of personal property, the plaintiff in his complaint demands judgment for $10,000, and upon the trial recovers a verdict for one dollar, he is not entitled to costs, as the action is one of which a justice of the peace would, upon proper pleadings, have had jurisdiction. APPEAL from an order of the Special Term, denying a motion to set aside an adjustment of costs in favor of defendant. The following is the opinion delivered by WESTBROOK, J., at the Special Term: "I think subdivision 3 of section 304, was intended to cover the class of cases, of the subject-matter of which a justice has no jurisdiction. It cannot be that a party who claims, in an action of which a justice has jurisdiction, more than $200, and then brings an action here, and recovers less than fifty dollars, is entitled to costs. The recovery in the cause established that the justice would have had jurisdiction to try it. Subdivision 4 of section 4 controls the costs. If the recovery at circuit was wrong, the remedy is by appeal. The motion to readjust costs is denied. (See 42 How., 131; 8 Abbott, 39.)" S. F. Cowdrey, for the appellants, cited Ryan v. Doyle (40 How., 215); Glacken v. Zeller (52 Barb., 153); Stilwell v. Staples (5 Duer, 693); Griffen v. Brown (35 How., 375); Bellinger v. Ford (14 Barb., 250); Rockwell v. Perine (5 id., 573). David Levy, for the respondent. DAVIS, P. J.: This action was brought for the recovery of damages for the conversion of personal property, of the alleged value of $7,300, for which conversion damages were demanded in the sum of FIRST DEPARTMENT, DECEMBER TERM, 1874. $10,000. On the trial, the plaintiff recovered a verdict for one dollar. On this recovery the defendant procured the adjusting of the costs in question. The point is, whether the case is embraced in subdivision 3 of section 304 of the Code, by which costs are given to the plaintiff, irrespective of the amount of recovery, in the actions in which courts of justice of the peace have no jurisdiction. It is clear that a justice of the peace, upon proper pleadings, would have had jurisdiction to have tried this action. It was for the recovery of damages for the conversion of personal property, and the verdict establishes (for all the purposes of this question) that such damages were in fact only one dollar. To have recovered that sum, the plaintiff might have pleaded in Justice's Court precisely as he has in this court, except that he should have conformed the amount of damages demanded to the requirement of the statute regulating those courts. Because he has, in an action the subject-matter of which was within the jurisdiction of the court of a justice of the peace, demanded $10,000 damages, where his real claim was for but one dollar, does not entitle him to costs of this court, on recovery of the dollar here. To give the provision of the Code that construction, is to nullify and bring into this court every cause of action, now triable in Justices' Courts, by a demand of damages exceeding $200, and to entitle plaintiff to costs in such actions, if he recover six cents. We think the court below was correct in its decision, for the reasons expressed in the opinion of WESTBROOK, J., and upon the authority cited by him.* The order should be affirmed, with ten dollars costs of this appeal and disbursements. DANIELS and LAWRENCE, JJ., concurred. Ordered accordingly. * Alexander v. Hard, 42 How. P. R., 131. FIRST DEPARTMENT, DECEMBER TERM, 1874. MAGDALENA ROLLWAGEN, APPELLANT, v. FREDERICK ROLLWAGEN, JR., AND OTHERS, RESPONDENTS. Will-Witness—when opinion of, cannot be given - Decree of surrogate — appeal from-presumption in favor of — Fraud-Undue influence. Except in matters of science, art, skill, trade, navigation, value, and other similar inquiries, witnesses are confined in their statements to facts observed and known by them, as distinguished from their opinions and conclusions. Where probate of a will is contested upon the ground of the mental and physical incapacity of the testator, witnesses cannot state the opinions and conclusions drawn by them from his acts and motions, but should confine their testimony to the acts and motions themselves. The court cannot reverse the decree of the surrogate, unless it appears to have been erroneously made. The presumption is in favor of its correctness. Where an application is made for the probate of a will of a person, who at the time of its execution was suffering from paralysis, and was unable to speak or articulate distinctly, on the ground that he was able to express his thoughts and desires by certain sounds and motions made by him, the character and meaning of such sounds and motions must be clearly and unequivocally established. By a former will the deceased had devised to his wife a life estate in a house, which was subsequently sold by him. Afterward he directed another will to be prepared, in which the house in which they then lived, should be given to his wite in place of the one which had been sold. The will, prepared in pursuance of such directions, and executed by him, devised the house in fee to the wife, and also contained a bequest to her of one-third of the personal property. Held, that as his condition was such that he could not detect the alteration upon hearing the will read over, such alteration was a fraud of so material a character as to require that the instrument should not be admitted to probate. Shortly before his death the deceased, who was at that time helpless and dependent, and entirely subject to the influence of his wife, made, under her direction and procurement, certain changes in a will, formerly executed by him, all of which were entirely for her benefit. Held, that the presumption was that they resulted from her influence, unduly and improperly exercised over him. APPEAL from a decree of the Surrogate's Court of the county of New York, denying probate of instruments claimed to be the will and codicil of Frederick Rollwagen, deceased. Wm. Henry Arnoux, for the appellant. The will was properly subscribed by the testator. (Meehan v. Rourke, 2 Brad., 385; ButHUN-VOL. III. iô FIRST DEPARTMENT, DECEMBER TERM, 1874. ler v. Benson, 1 Barb., 533; Ross v. Chester, 1 Hagg. Ecc. Rep., 227; Reynolds v. Root, 62 Barb., 251; Nelson v. McGiffert, 3 Barb. Ch., 158; Jauncey v. Thorne, 2 id., 41; Weir v. Fitzgerald, 2 Brad., 42.) The publication of the will fulfilled all the requirements of the Revised Statutes. (Hun v. Case, 1 Redf., 307; Doe v. Roe, 2 Barb., 202; Barry v. Butlin, 1 Curteis, 639; Moore v. Moore, 2 Bradf., 261; Chaffee v. Baptist Miss. Con., 10 Paige, 90; Seamen's F. Soc. v. Hopper, 33 N. Y., 633; Vaughan v. Burford, 3 Bradf., 78; Tunison v. Tunison, 4 id., 138; Whitbeck v. Patterson, 10 Barb., 608; Boyd v. Cook, 3 Leigh, 205; Barton v. Robins, 3 Phillimore, 455, note b; Brown v. De Selding, 4 Sandf., 15; Peck v. Cary, 27 N. Y., 1; Newhouse v. Godwin, 17 Barb., 240; Smith v. Smith, 2 Lans., 266; Martin v. Wotton, 1 Lee's Ecc. R., 131; Ross v. Chester, 1 Hagg. Ecc. R., 227; Gilman v. Gilman, id., 355.) The assent of the testator may be by signs. (Lewis v. Lewis, 11 N. Y., 226; Coffin v. Coffin, 23 id., 15; Van Hooser v. Van Hooser, 1 Redf., 370; Seamen's F. Soc. v. Hopper, 33 N. Y., 633; Hutchings v. Cochrane, 2 Brad., 295.) As to the mental condition of the testator. (Watson v. Donnelly, 28 Barb., 655; Banks v. Goodfellow, 39 L. J. R., 237; Delafield v. Parish, 25 N. Y., 59; Den v. Van Cleve, 2 South., 660; Reynolds v. Root, 62 Barb., 251; Williams v. Goude, 1 Hagg. Ecc. R., 581; Watson v. Donnelly, 28 Barb., 655; Harrison v. Rowan, 2 Green [N. J.] Ch., 570; McMasters v. Blair, 29 Penn., 305; Thompson v. Thompson, 21 Barb., 114; Kempsey v. McGinnis, 21 Mich., 141; Leech v. Leech, 21 Penn., 68; Stewart's Executor v. Lispenard, 26 Wend., 255; Blanchard v. Nestle, 3 Denio, 37; Clarke v. Sawyer, 2 N. Y., 499; Thompson v. Quimby, 2 Brad., 490.) As to fraud and undue influence. (Kinne v. Johnson, 60 Barb., 70; Small v. Small, 4 Greenleaf, 223; Tyler v. Gardiner, 35 N. Y., 610; Zimmerman v. Zimmerman, 23 Penn., 375; Barfitt v. Lawless, 21 Weekly R., 200; Williams v. Goude, 1 Hagg. Ecc. R., 580; Eadie v. Slimmon, 26 N. Y., 11; Mountain v. Bennett, 1 Cox, 355; Miller v. Miller, 3 Serg. & R., 269; Browne v. Mollerton, 3 Wharton, 131; Watson v. Donnelly, 28 Barb., 656; Remsen v. Brinckerhoff, 26 Wend., 340; Bleecker v. Lynch, 1 Bradf., 471; Harrell v. Harrell, 1 Duval, 203; Van Guysling v. Van Kuren, 35 N. Y., 71.) The |