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He had sufficient active memory to realize that he had a wife with whom he had lived for about fifty years whom he ought to protect.

He was capable of appreciating the importance of the act in which he was about to engage, and to make his own selection of a draftsman.

He could, without prompting as to the person, state to whom he desired to give his property. In short, he fulfilled all the requirements prescribed by the court of appeals in that leading and well considered case of Delafield v. Parish, 25 N. Y., 9, where the court says:

"He must have sufficient active memory to collect in his mind, without prompting, the particulars, or elements of that business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them."

The fact that an aged person is forgetful does not per se establish want of testamentary capacity, so long as the testator is not so far bereft of reason as not to have a just appreciation of the nature of the business, and the natural objects of his bounty.

Here the emotions manifested by the testator showed that he regarded this as one of the most important acts of his life.

On the whole case on the proof as it stands we think the decree of the surrogate refusing to admit this will to probate should not be sustained. Decree reversed.

Order for trial at court on issues.
Issues and order to be settled by MAYHAM, J.
LEARNED, P. J., and LANDON, J., concur.


Resp't. (Supreme Court, General Term, Third Department, Filed February 18, 1891.) NEW TRIAL.

The granting of a new trial upon the minutes rests in the sound discretion of the trial judge, and where plaintiff's case was supported only by her own evidence and was opposed by that of the defendant and of two disinterested witnesses and the judge granted a new trial, the general term will not interfere.

APPEAL from an order setting aside the verdict of the jury, and granting a new trial, upon a motion made by the defendant at the circuit upon

the minutes of the court. This action was for an assault and battery, on the trial of which the jury rendered a verdict for the plaintiff for $35.00.

The only evidence in support of the verdict bearing upon the question of the assault was the testimony of the plaintiff.

She is positively contradicted by the defendant, and his testimony is in part contradicted by two witnesses, who were present at the time of the alleged assault and battery.

Shedden & Booth (J. F. Shedden , of counsel), for app'lt; Riley & Conway (T. F. Conway, of counsel), for resp't

MAYHAM, J.—The granting of a new trial upon the minutes of the court rests in the sound discretion of the trial judge, and his determination should not be interfered with on appeal unless it is apparent that that discretion was abused or improperly exercised. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628.

We do not think that there was an abuse of that discretion in this case.

The verdict rested solely upon the testimony of the plaintiff, wholly uncorroborated as to the assault.

It is true that the doctor called by her as a witness, says that the discoloration upon her arm might have been produced by the violent grasp of the hand, but he also says that it might have been produced in some other way, so that his evidence scarcely amounts to a corroboration of the plaintiff's upon that subject, .

The verdict being founed upon the uncorroborated testimony of the plaintiff, the court might set aside and order a new trial, although her testimony when taken by itself might be sufficient if contradicted to prove her case. Meddaugh v. Bigelow, 67 Barb., 106. And this is especially true when the motion is made before, and granted by the judge before whom the action was tried, who had the opportunity of observing the demeanor of the witnesses, and judging of the amount of credence to which they were entitled.

In Meddaugh v. Bigelow, supra, the court says: “The judge who tried the cause and heard the witnesses testify was better qualified to determine whether the jury was misled than any other tribunal, and as he exercised discretion

this court should not interfere.”

It is true that the verdict of a jury upon a disputed question of fact should not be set aside when the evidence clearly supports the verdict, although from the evidence the court might have reached a different conclusion from that found by the jury. Beckwith v. N. Y. C. R. R. Co., 64 Barb., 299.

But when the verdict is so decidedly against the weight of evidence that it is clear that the verdict is the result of sympathy, passion or prejudice, the verdict will be set aside for that reason; and when the verdict is supported only by the testimony of an interested party, who is contradicted by the adverse party and two disinterested witnesses, upon the material facts in dispute, and the trial judge, upon that proof, in the exercise of the discretion vested in him, sets aside the verdict as against the weight of evidence, in such a case we think this court on appeal ought not to reverse the order.

The order is affirmed, with costs.
LEARNED, P. J., and LANDON, J., concur.

MATTHEW MARSHALL, Resp't, 2. DANIEL H. LINK, App'lt. (Supreme Court, General Term, Third Department, Filed February 18, 1891.) 1. SUPPLEMENTARY PROCEEDINGS-SECOND ORDER.

The principle that a second order of examination in supplementary proceedings shall not be granted unless good reason therefor be shown is not jurisdictional and the matter rests in discretion.

2. SAME.

Upon application to vacate a second ordet it is therefore proper for plaintiff to show, if he can, more strongly than upon the exparte applicaiion, that the proceeding is not taken to harass the defendant, but to reach subsequently acquired property. APPEAL from an order refusing to set aside an order for a second examination of defendant in supplementary proceedings.

Cady & Hoysradt, for app'lt; E. F. McCormick (L. Royce Tilden, of counsel), for resp't.

LEARNED, P. J.—The principle that a second order for examination in proceedings supplementary shall not be granted unless good reason therefor be shown is not jurisdictional. It is only to prevent the unreasonable harassing of a defendant.

Therefore on the motion to set aside the second order in this case it was not improper for the plaintiff to show more strongly than had appeared on the exparte application that the proceeding was not taken to harass the defendant, but with good reason, and to reach property which had come to the defendant since the prior examination.

The jurisdictional facts in these applications under $ 2436 are the recovery of the judgment and the issue and return of the execution.

On the hearing of the motion to vacate the second order for examination the learned judge could decide whether the application for that order had been made in good faith or with evil intent; and he could grant or refuse the motion as he thought best.

We see no ground to interfere with his discretion. The first order and examination discovered a sum of $241.95 payable to defendant, but which the court decided could not be reached by those proceedings. The sum was in the hands of the county treasurer. Afterwards it was paid to defendant. And this second order was obtained, as it seems, in order to reach that money which had thus come into the actual possession and ownership of the defendant. We think the order was properly granted and that the refusal to vacate it was right.

Order affirmed, with ten dollars costs and printing disbursements.

LANDON and MAYHAM, JJ., concur.


App'lt. (Supreme Court, General Term, Third Department, Filed February 18, 1891.) 1. MECHANIC'S LIEN-INJUNCTION.

B. & P. leased buildings of M., then owner, and put in them boilers, etc., purchased of plaintiff. The latter filed a mechanic's lien against the interest of B. & P. The lease and premises were abandoned by B. & P. In an action to foreclose the lien plaintiff obtained an injunction forbid. ding M., pending the action, to use the boilers which remained on the

premises. Held, that the injunction could not be sustained. 2. SAME.

Under the statute the lien is only upon the person's interest in the land. If the boilers were removable by the tenant they were no part of the land; if they were part of the land the landlord had a right to re-enter and plaintiff could not abridge the owner's use of his own land. APPEAL from injunction order granted in this action. Action to foreclose a mechanic's lien.

On the 20th day of March, 1889, the plaintiff, Lee Chamberlin, filed in the Rensselaer county clerk's office a notice of mechanic's lien on premises owned by the defendant, Charles McCarthy, located on Grand street in the city of Troy, N. Y., wherein he claimed a lien for alleged work, labor and services done and performed and materials furnished by him in the alteration and repair of the house or houses erected upon said premises. Said work, labor and services were done and performed, and said materials were furnished at the request of William B. Brind and H. S. Pashkian, lessees of said premises and tenants of the said defendant, Charles McCarthy. Said mechanic's lien was for $577.37, and purports to be against_the interest of the said tenants, William B. Brind and H. S. Pashkian, in said premises.

Before the commencement of this action the lessees abandoned and surrendered the premises, and the owner let the same to other parties.

The injunction order in question restrains the defendant McCarthy and his tenants from using the materials put upon the premises, and attached to the freehold by plaintiff, until the further order of the court.

Thomas S. Fagan, for app'lt; Rufus J1. Townsend, for resp't.

LEARNED, P. J.-We think this injunction should not stand. McCarthy owned the land, and leased it to Brind & Pashkian. They purchased of plaintiff certain boilers and steam fittings, and the like, and had them put in the buildings. For these purchases they owe. The plaintiff filed a mechanic's lien against the interest of Brind & Pashkian in the premises, and he now brings this action to foreclose.

It appears that Brind & Pashkian abandoned and surrendered their lease; and McCarthy, as owner, took possession, and that his present tenants are using the boiler and fittings and the like. The plaintiff fears that these things will be injured by such use, and, therefore, obtained an injunction forbidding McCarthy to use them until the decision of the action.

The effect of the filing the notice of lien, assuming it to be valid, is to create a lien on the interest which Brind & Pashkian had in the premises.

Whether this boiler and these fittings became a part of the property of the owner, or whether they were such fixtures that Brind and Pashkian could remove them at the end of their term, we need not decide. We may assume that if the plaintiff bad, by contract with McCarthy, put in these fixtures he would have had a lien on McCarthy's interest. But a reference to chap. 342, Laws of 1885, § 1, will show that the lien is only on the interest in the land of the person for whom the work is done, either directly or through a contractor. The language is: “Whether owner in fee, or of a less estate, or whether a lessee for a term of

years, etc."

Now, while it may be that after the filing of the notice of the lien the lessee could not convey the lease-hold estate free from the lien, yet it is by no means clear that the landlord could not reenter for non-payment of rent.

However this may be, there is no propriety in preventing the owner of the fee from using the property which has thus been attached to his land. If the tenants had lawfully removed these fixtures, then they would not have been affected by the notice of lien, because that is a lien on the interest in land. And if these fixtures are rightfully removable, then they are not part of the land.

On the other hand, if these became a part of the land (as plaintiff seems to claim under Ward v. Kilpatrick, 85 N. Y., 413), then McCarthy as the landlord is rightfully in possession and cannot properly be prevented from using his property. The plaintiff had no lien except on the lease-hold interest of Brind and Pashkian. Whether that has ceased or not is not shown. rate the mechanic's lien cannot operate to increase the rights which the lessee had against the lessor.

The injunction order is reversed, with ten dollars costs and printing disbursements, and motion for injunction denied, with ten dollars costs.

LANDON and MAYHAM, JJ., concur.

At any


Impl’d, App'lt. (Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) EVIDENCE - ASSIGNMENT OF GOODS ABSOLUTE IN FORM MAY BE SHOWN TO


Defendant's firm being indebted to the plaintiff, gave to its superintenddent a check for part of the debt, and an assignment absolute in form of the firm's interest in certain goods in the hands of commission merchants for sale and in the amount due from such commission merchants for goods sold, and took a receipt in full from him. In an action to recover an alleged balance of such debt, Held, that evidence was admissible to show that the money was not paid as stated in the receipt and that the assignment was only collateral security and not received in discharge of the debt. APPEAL from a judgment entered in Oneida county June 22, 1889, upon the report of a referee, in favor of plaintiff, for $2,576.18 damages, besides costs.

Action for balance of account for yarn and merchandise sold and delivered by plaintiff to defendant prior to July 31, 1884. The answer alleged that on the 31st July, 1884, the claim of the plaintiff was fully paid and satisfied.

Doyle & Fitts, for app'lt; W. & N. E. Kernan, for resp't.

MERWIN, J.—The plaintiff was engaged in the manufacture of yarn at Utica. The defendants were engaged at Cohoes in the manufacture of knitted underwear, and prior to July 30, 1884,

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