8. The construction and maintenance of con-
necting ditches through and across the lands
of adjoining owners, for the purpose of
draining and discharging the surface water
into a creek below, and the use and en-
joyment thereof for the period of more than
twenty years creates no right or easement
by prescription to have the ditches kept
open for the discharge of the water over
the land of the lower proprietor. The
draining of the upper lands through the
ditch being by the license or permission of
the owner the use or enjoyment was not
adverse, and consequently could not ripen
into a right by prescription.-White v. Shel-
don, 548.
EMINENT DOMAIN.
1. When a person whose lands are sought to
be condemned by a railroad company under
the general railroad act makes an issue
for trial it is improper to appoint commis-
sioners to condemn said land until the
route of said road is finally located, and an
allegation in the answer of the party whose
land is sought to be condemned that it is
not the intention of said railroad company
in good faith to construct said proposed
road puts the burden of proof on the
petitioner. In re application of the S. I. R.
T. RR. Co. v. Bechtel, 15.
2. Before confirmation of the commissioner's
report in railway condemnation proceed-
ings motion may properly be made by the
railway company to discontinue the pro-
ceedings, and the court in granting it may
annex such terms as justice requires.-In
re application of the N. Y., W. S. & B.RR.
Co. v. Thorne et al., 128.
3. A general land agent having charge of the
subject of purchasing lands for all the pur-
poses of a railroad corporation must be re-
garded as an officer of the corporation hav-
ing the right to verify petitions in proceed-
ings to acquire title to lands.-In re appli-
cation of the N. Y., L. & W. RR. Co. v.
Scheu et al., 194.
4. Notice of the proposed route need not be
given to owners of land required for other
purposes than the construction of the em-
bankment and the laying of the rails.-Id.
5. Where the Common Council of a city in
authorizing the construction of a railroad
through its streets required the company to
construct a swing bridge across a canal, to
do which it became necessary to obtain
land over which to swing the bridge when
open, Held, that the company could acquire
title to such lands under the general statute.
-Id.
6. On the trial before the commissioners the
land owner has the right to open and close.
-Id.
7. It is not error for the commissioners, after
the submission of the case, to view the
premises a second time in the absence of
counsel.-Id.
8. The measure of damages for property
taken for railroad purposes is its fair market
value based on existing conditions and not
on speculations of future developments.-
In re petition of the N. Y., L. & W. RR. Co.
v. Bennet et al., 212.
9. Where the parties have made a contract of
bargain and sale of the premises, leaving
the question of consideration to be decided
by certain commissioners named, who are
to proceed under the statute, and the con-
tract reserves to the parties the right to ap-
peal from their decision, Held, That the
court upon setting aside the award on ap-
peal cannot direct the appointment of new
commissioners.-Id.
10. To authorize a reversal of the awards of
commissioners appointed to appraise the
value of lands condemned for railroad pur-
poses, they must be so grossly unequal and
inadequate as to warrant the conclusion
that the commissioners proceeded upon a
wrong principle or acted corruptly in
awarding damages. The court will refuse
to require the commissioners to reconsider
their report upon the weight of evidence or
questions of value, unless the facts are of
so decisive a character as to be almost con-
clusive. In re application of the N. Y. C.
& H. R. RR. Co., v. Pierce et al., 405.
11. The owner or lessee of the premises is not
entitled to compensation for the expense of
removal of the personal property thereon.
-Id.
12. Where, in proceedings to condemn land
for a railroad, the commissioners allow a
witness for the company to testify, against
the owner's objection, that the value of the
portion not taken would be advanced by
the proposed improvements, it is error. And
the error is not cured by a statement of the
commissioners in their report, that in fixing
the amount of compensation that should be
awarded they did not make any allowance
or deduction on account of any real or
supposed benefits which the owner might
derive from the construction of the road.—
In re application of the N. Y., W. S. & B.
RR. Co. v. Sutherland, 434.
13. Where, on taking land for railroad pur-
poses, an award was made to the city which
was paid to the chamberlain as directed,
Held, That he was only a depositary, and
that in the absence of proof that the city
had taken or used the money his receipt
thereof could not be held a waiver of the
right to appeal.-In re petition of the N. Y.
& H. RR. Co., 466.
14. An order of General Term, reversing an
order of confirmation of the report of com-
missioners of appraisal, and directing a new
appraisal before new commissioners, is not
final, and no appeal lies therefrom to the
Court of Appeals.-Id.
1. The mere fact that a justice of the peace
failed in his return to a writ of certiorari
to include the oral examination taken on
the criminal complaint will not estop him,
in a subsequent action for false imprison-
ment, from showing that such examination
was taken. Mixter v. Bronner, 241.
2. The acceptance of payment of a claim
against a county in the amount audited by
the Board of Supervisors thereof is a waiver
by the claimant of any right to further
prosecute the same.-The People ex rel. Mc-
Donough v. The Board of Suprs. of Queens
Co., 312.
3. A person who has induced another to ad-
minister upon the estate of an intestate by
the declaration of such person that she had
been divorced from the deceased and was
married to another person and had no in-
terest in the estate of the deceased, is estop-
ped from denying the truth of such declara-
tions when the consequence would be to
work an injury to the person so adminis-
tering.—In re accounting of Rusko, 408.
4. That an offer has been made, by way of
compromise, to accept a less sum in satisfac-
tion of a claim, which sum has not been
paid, is no defense to an action for the
whole amount of the claim.-Ryan v.
Burnham, 536.
5. Such offer does not estop the party making
it from claiming the whole amount due
him where it does not appear that the party
to whom the offer was made has acted on
it to his injury.—Id.
See APPEAL, 2; CONTRACT, 11; FIRE IN-
SURANCE, 1, 6, 8; HIGHWAYS, 11; PART-
NERSHIP,
TOWN BONDS, 7.
1. Where the question is whether a certain
transaction amounted to a purchase or a
payment of a note, the intent of either of
the parties is immaterial, except as it was
communicated to the other at the time. —
Madden v. Benedict, 30.
2. The liability of one of the makers of a sev-
eral note to the holder is not affected by
the equities of the makers as between them-
selves.-Id.
3. A party by cross-examining his opponent's
witnesses in reference to the same matter
embraced in the direct-examination does
not make them his own, but is entitled to
call witnesses to contradict them. So held,
where defendant put questions to plaintiff's
witnesses based upon assumed facts which
varied in some particulars from those em-
braced in plaintiff's hypothetical questions,
and they gave their opinions as to the value
of the services upon such assumed facts.-
Tucker v. Ely, 66.
Where, in a suit originally commenced in
justice's court, plaintiff gave evidence as to
value, defendant was held entitled to give
evidence in rebuttal though the question of
value was not put in issue by the answer.-
Id.
5. In an action to recover for goods delivered
under a contract the defendant set up fraud
as a defense and proved that the agent em-
ployed to sell the goods to the city made
offers of money to one C. to procure his
friendly offices to aid in introducing them.
This was objected to as the declarations of
a stranger, and that it was so far removed
from the scope of the agency as to be inad-
missible against plaintiff, the assignee of
the claim. The objection was overruled.
Held, Error.-Baird v. The Mayor, &c., of
N. Y., 100.
6. In an action to recover money loaned,
plaintiff put in evidence an envelope on
which was endorsed the date of the loan,
defendant's name and address, the terms of
the loan and a list of the collaterals. The
indorsement contained no promise to pay.
Held, That the indorsement did not state
sufficient to constitute a complete contract
and that the evidence tending to show that
defendant's name was written on the envel-
ope after the loan was made on collaterals
belonging to other parties was admissible.
-The Union Trust Co. v. Whiton, 106.
7. The existence of a custom cannot overrule
the terms of a contract ambiguous on its
face and the explanation by parol evidence
showing what the parties really intended.—
Id.
8. Communications which may fairly be said
to have been induced by the previous rela-
tionship of attorney and client are privi-
leged. Meyers v. Doeman, 111.
9. In an action to recover damages for a
breach of contract to furnish a portion of
the money required for the purchase of
certain mining property, the privilege of
purchasing which within a certain time was
held by plaintiff, which privilege he lost on
account of the defendant's failure to per-
form is contract, it was proved that on the
day set for purchasing the property, a por-
tion of which defendant was to receive, de-
fendant refused to perform upon the
ground that there were defects in the title,
and that thereupon an extension of time
was procured for the purpose of removing
such defects. It was then offered to be
shown that in the interval an arrangement
was effected obviating the objection. This
evidence was excluded. Held, Error.-
Selover v. Chaffee, 115.
10. It was also shown that at one time plain-
tiff had offered to relieve defendant of his
contract and defendant had declined to give
it up. Plaintiff was then asked whether at
that time he could have raised the money
necessary to purchase the property else-
where if defendant had given up his con-
tract. This was excluded. Held, Error.-
Id.
11. A propeller, in trying to reach her dock
without a tug collided with a canal-boat.
Held, Error to admit evidence that the pro-
peller, after the accident, hired a tug to
assist her to her dock, and to admit evi-
dence to prove that it was not the custom
to obey an ordinance as to keeping a light
on canal boats.-Case v. Perew, 131.
12. The defendant, being absent from the
trial, may insist that plaintiff must establish
his case by legal evidence.-Hawley v. The
P., T. & B. RR. Co., 142.
13. Plaintiff's cows were injured by defend-
aut's trains and engines, and plaintiff was
permitted to state his opinion of his loss in
reduced production of butter resulting
therefrom, without giving his data for his
opinion. Held, Error.-Id.
14. If there is enough legal evidence to sus-
tain a judgment it should not be reversed
because incompetent evidence of a cumu-
lative character was received.-Shehan v.
Johnson, 157.
15. In an action for goods sold and delivered
a witness testified that during a specified
time defendant bought goods of plaintiff to
a specified amount; that she had made cer-
tain payments, and that there was a certain
balance due. He then identified a copy of
the account, which was read in evidence.
Held, That the admission of the account
was not error calling for reversal, as there
was sufficient evidence without it to estab-
lish plaintiff's cause of action.-ld.
16. Where plaintiff relies wholly upon the
testimony of himself and his wife, defend-
ant has the right to demand that their evi-
dence, though uncontradicted, should be
passed upon by the jury.-Longyear v. The
U. S. Life Ins. Co., 165.
17. An answer given by a party in supple-
mentary proceedings prior to September 1,
1880, may be used as evidence against him.
-Bush v. Preston et al., 190.
18. Evidence that a witness has been con-
victed of being drunk and disorderly is ad-
missible as affecting his credibility.-The
People v. Burns, 197.
19. The admission, against objection, of a
party's declarations in his own favor made
to an employee of his adversary, who had
no authority to bind him by his answers, is
such an error calculated to influence the
jury and prejudice the adversary's case as
calls for a reversal of the judgment, al-
though the question put did not call for the
whole conversation, and no objection was
made to the admission of the employee's
answers against his employer's interest.-
Gilbert v. Manning, 206.
20. A judgment roll not certified as a whole,
but the separate parts of which were each
certified to be a true and correct copy of the
original on file, no statement being made
therein that the copies were compared with
the original, and accompanied by no cer-
tificate of a judge authenticating the clerk's
attestation, is not properly authenticated
and is inadmissible.-Humaston et al. v.
Beekman, 238.
21. Under a stipulation allowing either party
to read the testimony of any and all wit-
nesses given on the trial of an action brought
by another person in reference to the same
action, either party reserving the right to
recall any of said witnesses and to call
others, no objections can be taken to the
testimony so read that were not taken on
the trial of the other action, and a party
reading the direct-examination of a witness
may also read the cross-examination where
his adversary omits to do so.-Burgess v.
The N. Y. C. & H. R. RR. Co., 249.
22. Evidence that there was no gate across
the highway is admissible as descriptive of
the situation.-Id.
23. In an action by a husband, as adminis-
trator, to recover damages for the death of
his wife, in a case where she left no sur
vivors but himself and her mother, evidence
as to the means or property of the mother
is irrelevant and inadmissible.—Malonee v.
The N. Y. C. & H. R. RR. Co., 252.
24. The erroneous admission of such evi-
dence is not cured by a charge to the jury
to assess such damages as would pay plain-
tiff for his actual pecuniary loss, without
instructing the jury to disregard such evi-
dence.-Id.
25. Entries in a train sheet of a railroad com-
pany as to the passage of trains at a sta-
tion other than that at which it is kept are
not admissible against strangers unless veri-
fied by the station-man and telegraph op-
erator at the station in question.-Graville
v. The N. Y. C. & H. R. RR. Co., 257.
26. In an action to recover for services as
hostler, plaintiff claimed and gave evidence
tending to prove that he was employed at
$20 per month. Defendant denied this aud
testified that he had previously employed
plaintiff at $10 and made no other agree-
ment. He then offered to show a general
custom at hotels for hostlers to receive
scale money, and that this formed part of
their compensation. The offer was
jected. Held, Error; that if such usage
existed the parties may be presumed to have
contracted with reference to it and there
was no such clear proof of a special con-
tract in conflict with the usage as justified
the rejection.—Jonsson v. Thompson, 269.
27. An offer of a certificate of stock for sale
at auction where no bid was made for it is
immaterial to show that the actual value of
the stock was below par, and the opinion
of a witness, based on such facts, is incom-
petent.-Hanna v. Sandford, 288.
28. To prove the value of stock which has no
market value it is competent to show that
the company which issued the stock has
continued in business and employed a large
number of men, and has been in fair credit,
and that the property is valuable and the
stock has been considered valuable up to
the time of the inquiry.-Id.
29. Whether a man is a skillful mechanic or
not is a fact as to which those who have
knowledge may testify.-Wheeler v. The
D. & H. C. Co., 301.
30. Hypothetical questions must be based on
facts admitted or established by the evi-
dence, or which, if controverted, the jury
might legitimately find. Purely imaginary
or abstract questions, assuming facts for
which there is no foundation in the evi-
dence, are not admissible as matter of
right. The People v. Augsbury, 307.
31. The allowance of such a question on
cross-examination to test the knowledge or
information of a witness rests in the dis-
cretion of the court.-Id.
32. In an action to recover damages for the
pecuniary loss to the next of kin of a per-
son whose death has been caused by the
negligence of a party, it is proper to show
the number, age, sex and condition of
health of the children of deceased; and
while it is true that the statute only pro-
vides for pecuniary loss to the next of kin,
and that such loss is independent of the
fact of the sickness or health of the next of
kin, yet the evidence is admissible to show
the condition of the family of the deceased
as a basis for the jury.-Lockwood v. The
N. Y., L. E. & W. RR. Co., 341.
33. The feeling of a witness toward the party
calling him or adverse to the party against
whom he is called, is always material, but
the rejection of testimony to show feeling
of hostility upon the part of the witness is
not error unless such evidence be direct
and positive.-Teets v. The Village of Mid-
dletown, 347.
34. The declarations of an assignor made be-
fore the assignment and not forming a part
of the res gesta, are not competent against
the assignee.-Vidvard et al. v. Powers et al.,
359.
35. Expert evidence is not admissible on the
question whether a certain day was a proper
one for burning a fallow. Where the facts
are of such a nature that jurors generally
are just as competent to form opinions and
draw inferences from them as witnesses,
there is no occasion to resort to expert evi-
dence. Ferguson v. Hubbell, 386.
36. In order to obviate an erroneous instruc-
tion upon a material point, the withdrawal
must be absolute and in such explicit terms
as to preclude the inference that the jury
may have been influenced thereby.-The
People v. Kelly, 395.
37. It is error to instruct the jury that an
alibi is a species of defense that the law
looks upon generally with suspicion.-Id.
38. Upon the denial of a witness that he had
been convicted of a certain offense, it may
be proven by the record.-Id.
39. Declarations made in the presence of a
party are received, not as evidence in them-
selves, but for the purpose of enabling the
jury to determine whether or not a reply
was called for, and if called for, was it the
intention of the party by his silence to
acquiesce in the truthfulness of the state-
ment.-McCusker v. Carlson, 424.
40. Where, therefore, a jury asked the justice
whether, when plaintiff said that the brick
did not come out as recommended and de-
fendant kept silent, they should construe
his silence as an admission that he had
recommended the brick, and the justice
answered "No," Held, That the reply
was correct as far as it went; that the court
could not charge as a matter of law that
defendant's silence amounted to an admis-
sion.-Id.
41. An admission contained in a verified
answer of the defendant in a previous suit
in which the complaint was dismissed by
default is as admissible against his execu-
tor in a subsequent suit involving the same
matters as it would have been against him-
self had he survived and been a party de-
fendant.-Miller v. McGuckin et al., 429.
42. The evidence of a deceased witness can-
not be read in any subsequent portion of
the proceedings against a party who did
not have the right to cross-examine him
when the evidence was given.-Id.
43. Where a witness testified that a marriage
certificate was given her at the time of the
marriage, and immediately after said it was
given to her afterward, and the referee
overruled an objection made to its admis-
sion in evidence, Held, That the referee
was warranted in understanding the wit-
ness in the former sense, and that the gen-
eral objection was not sufficient to raise
the question.-Wingate v. Haskins, 438.
44. And although it appeared, upon cross-
examination, that the certificate was not
competent evidence, either under the Code
(928) or at common law, yet, as defendant
failed to move to strike it out, but per-
mitted it to stand upon the record, he can-
not ask the court to disregard it by reason
of his objection made to it on the direct
examination.--Id.
45. And although the certificate was not
made in conformity to the statute, still if
it was an original certificate given at the
time of the marriage in the presence of the
parties, as it was doubtless understood to
be at the time of its admission in evidence,
it was competent at common law as part
of the res gesta.-Id.
46. In actions for injuries caused by negli-
gence, evidence as to the value of plaintiff's
services at the time of the injury is compe-
tent.-Campbell v. The City of Syracuse, 449.
47. While a party may not impeach a witness
called by him, he may prove a fact contrary
to the recollection of such witness.-Id.
48. Where incompetent evidence has been
volunteered by the witness the only way in
which it can be expunged from the record
is by motion to strike out.-Fowler v. The
Howe Mach. Co., 521.
49. The execution and delivery of a receipt
given for money paid by defendant's intes-
tate to the plaintiff being a personal trans-
action or communication with the deceased
within the meaning of § 829 of the Code,
plaintiff is not a competent witness to tes-
tify that the words, "in full of all demands
of whatsoever kind up to date," were not
in the receipt at the time she signed and de-
livered it to the deceased.-Boughton v.
Bogardus, 537.
50. Evidence bearing on the question of mo-
tive and intent is not incompetent because
it may charge the party with official delin-
quency, and might go in support of a
charge for another crime.-The People v.
Dewey, 555.
51. Admissions of a former owner of a note
affecting its validity cannot be given in
evidence against parties who acquired title
to such note from him subsequent to its
maturity, and who are proceeding for its
recovery.-Leonard et al. v. Demerritt, 558.
52. In an action against an executor it ap-
peared that the parties had had an inter-
view. Defendant testified that deceased's
account book was present and referred to
at the interview. Plaintiff denied that it
was shown to him. The book was admit-
ted in evidence. Held, No error.- Wil-
liams v. Davis, 572.
53. A plaintiff is incompetent under § 829 of
the Code to testify that an account set up
by an executor as a counterclaim has been
paid.-Id.
See ABANDONMENT, 3; ANIMALS, 4; ATTACH-
MENT, 4; ATTORNEYS, 4; BANKS, 3; BLACK-
MAIL, 2; BROKERS, 4; BURGLARY; CIVIL
DAMAGE ACT, 7; CONTRACT, 3, 9, 26;
CRIMINAL LAW, 2: FIRE INS., 12; FOR-
GERY, 5; HIGHWAYS, 3, 9; INFANTS, 1, 2;
JUDGMENT, 4; LIBEL; MORTGAGE, 17;
MUNICIPAL CORPORATIONS, 2; MURDER,
1-3, 9; NEGLIGENCE, 12, 25; NEGOTIABLE
PAPER, 1, 4, 5; PARTNERSHIP, 3-5; RAIL-
ROADS, 12; RECORD, 1; SURETYSHIP, 4;
TRADE SECRET, 3; TRESPASS, 1, 5;
TRUST, 1.
1. For the purposes of a civil action for a
penalty for selling intoxicating liquors
without a license a sale by an agent in the
shop of his principal, or by a servant in the
shop of his master, is prima facie a sale by
the principal or master.-Overseers of the
Poor v. Kall, 33.
2. The summons was indorsed thus: "This
summons is issued to collect penalties for
violations of Sections 13 and 14 of the act
to suppress intemperance, and to regulate
the sale of intoxicating liquors, passed April
16, 1857, and the acts amendatory thereof,
November 24, 1880. N. B. Packard, Jus-
tice of the Peace." Held, To be a sufficient
compliance with 1897 of Code of Civ.
Proc.-Overseers of the Poor v. McCann, 114.
3. The provisions of the statute respecting
the indorsement do not apply to the com-
plaint. The sufficiency of the latter is to
be tested by the rules of pleading.—Id.
4. Testimony that the witness bought cider
of defendant, and was partially intoxicated
by drinking several glasses of it, is enough
to bring the case within the prohibition of
the excise law. -Id.
5. Calling for liquor and drinking it on the
premises is prima facie evidence of a sale.—
The Board of Excise v. Merchant, 132.
6. The omission to have an excise commis-
sioner's bond approved, at the utmost,
affords cause for forfeiture of the office, but
does not create a vacancy; that can only be
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