SECOND DEPARTMENT, FEBRUARY TERM, 1875. Present-BARNARD, P. J., TAPPEN and DONOHUE, JJ. Judgment affirmed, with costs. CHARLES H. VAN SIZE, APPELLANT, v. THE LONG ISLAND RAILROAD CO., RESPONDENT. Trespasser-effect of putting fixtures on the land of another. THE 'defendant being in occupation of a strip of land, with its track thereon, took proceedings under the general railroad act to acquire title. It appeared that when the track was laid, the farm, embracing this strip of land, belonged to one Stewart, and that he conveyed to Van Size, who was the owner when such proceedings were taken. Van Size sought compensation, not only for the land, but for the improvements put thereon by the company. He offered to prove that its entry on the land was without the owner's consent, and also the value of the rails, ties, etc., on the strip in question. The commissioners refused to allow proof of these facts, and Van Size appealed from the order confirming their report. The court was of opinion that the railroad company, if it entered without consent, was a trespasser as to the then owner, and as to Van Size who acquired title from him; and that any fixtures it placed on the land while its occupation thereof was that of a trespasser, belonged to the owner who was such at the time of the making of the valuation; and that the commissioners therefore erred in rejecting the testimony offered by Van Size. The railway track, composed of rails and ties, was a fixture of the land, and its value as a fixture, enhancing the value of the land for the beneficial enjoyment thereof, was the measure of compensation. Thomas Young, for the appellant. Benjamin W. Downing, for the respondent. Opinion by TAPPEN, J. SECOND DEPARTMENT, FEBRUARY TERM, 1875. 3 614 65 223 ELIZA A. DENHAM AND OTHERS, APPELLANTS, v. SAMUEL Evidence-Code, § 399. APPEAL from an order of the Kings county Special Term, confirming the report of a referee. The defendants held certain lands in trust for Maria, the wife of Mark Cornell, and to secure to the defendants certain advances of money made by them from time to time for account of Mrs. Cornell. A reference was ordered to determine the amount of these advances, and from an order of the Kings Special Term, confirming the referee's report thereon, the plaintiffs appeal. The referee found $4,700 due the defendants; the plaintiffs conceded that the advances, with interest, amounted to $3,262, and disputed the balance. Mrs. Cornell was the original plaintiff in this action, the present plaintiff's having, on her decease, been substituted as her representatives. Mrs. Cornell signed and verified the first complaint, in which it was set forth that the amount due the defendants was $5,000; this complaint had been prepared under the direction of the defendant Jayne, who, as a witness before the referee (Mrs. Cornell being then deceased), testified that she signed the affidavit in his presence; he also gave testimony going to show generally that he was acquainted with her handwriting. The first complaint had been amended, and the amended pleading did not contain the admission relied upon by the defendants; the testimony of Jayne failed to show that he was acquainted with Mrs. Cornell's handwriting. The referee admitted the complaint as evidence of the amount due the defendants Jayne and Mercer. Held, that the evidence of Jayne, a party to the action, that he had seen Mrs. Cornell sign it, was evidence of a transaction between them, and was not admissible under section 399 of the Code.* Miller, Peet & Opdyke, for the appellants. for the respondents. * Resseguie v. Mason, 58 Barb., 89. SECOND DEPARTMENT, FEBRUARY TERM, 1875. Opinion by TAPPEN, J. Present- BARNARD, P. J., TAPPEN and DONOHUE, JJ. Amount found due reduced to $3,262, with interest, and the order as modified affirmed. JOHN SHAFFER APPELLANT, v. JOSEPH RICE AND OTHERS, TRUSTEES, ETC., RESPONDENTS. APPEAL from a judgment of the Queens County Court, reversing a judgment of a justice of the peace, in favor of the plaintiff. The trustees of a school district issued a warrant to collect a tax, including a tax against the plaintiff as a resident of the district, and there was a levy and sale of plaintiff's property to satisfy the tax. He brought an action of trespass against the defendants, claiming to be a non-resident of the district, and not liable to be assessed therein, and on a trial before a justice of the peace the plaintiff had judgment for damages. On appeal the County Court reversed the judgment, for errors of the justice in admitting and rejecting testimony. This court was of opinion that such errors were committed, and, without any discussion of them in the opinion, decided that the reversal was right. Theodore J. Cogswell, for the appellant. James W. Covert, for the respondents. Opinion by TAPPEN, J. Present- BARNARD P. J., TAPPEN and DONOHUE, JJ. Judgment affirmed, with costs SECOND DEPARTMENT, FEBRUARY TERM, 1875. THE GUARDIAN MUTUAL LIFE INSURANCE COMPANY, RESPONDENT, v. ELEANOR KASHOW AND OTHERS, APPELLANTS. Usury. APPEAL from a judgment in favor of plaintiffs entered on the report of a referee. The action was brought to foreclose a mortgage given by defendants to the plaintiff. The defense set up was usury, defendants having given a bonus of $3,000 in mortgages to get a loan of $7,000. The court after a review of the evidence, was of opinion that the plaintiff took the mortgages thus given to procure the loan, and that the defense was therefore sustained by the proof; and it reversed the judgment, and ordered a new trial, costs to abide the event. Smith & Stanbrough, for the appellants. Livingston K. Miller, for the respondent. Opinion by BARNARD, P. J. Present-BARNARD, P. J., TAPPEN and DONOHUE, JJ. Judgment reversed, and new trial granted at Special Term, costs to abide the event. WILLIAM H. HALLOCK AND ANOTHER, APPELLANTS, v. J. ORLANDO RANDALL, RESPONDENT. Cross-examination — power of judge at circuit to limit. APPEAL from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The only question presented by the appeal, related to the exclusion of a question, asked upon the cross-examination of a witness. The General Term held, that "The question referred to, is one of SECOND DEPARTMENT, FEBRUARY TERM, 1875. that class which it is not error to admit or reject; there was so much testimony in the case, from different witnesses, that the judge at circuit might exercise the power in his judicial discretion, of limiting all examinations and cross-examinations within reasonable bounds." Miller & Tuthill, for the appellants. Strong & Spear, for the respondent. Opinion by TAPPEN, J. Present-BARNARD, P. J., TAPPEN and DONOHue, JJ. Judgment and order affirmed, with costs. SAMUEL R. BRICK AND OTHERS, APPELLANTS, v. JULIA E. BRICK AND OTHERS, EXECUTRIX AND EXECUTORS, ETC., RESPONDENTS. APPEAL from a decision of the Surrogate of the county of Kings, admitting to probate the will of Joseph K. Brick, deceased. The principal question raised by the contestants, was as to the testamentary capacity of the deceased. Mr. Justice BARNARD, in delivering the opinion at General Term, says: "From a very careful reading of the evidence, I can discover no ground upon which the will or codicil can be successfully questioned." Henry E. Davies and D. R. Jaques, for the appellants. Samuel Hand and William M. Ingraham, for the respondents. Opinion by BARNARD, P. J. Present- BARNARD, P. J., TAPPEN and DONOHUE, JJ. |