Statement of the Case. JAMES WATTS, RESPONDENT v. CALEB B. KNEVALS AS TRUSTEE, ET AL., APPELLANTS. Discovery under § 806 Code Civil Procedure, before answer-grounds for denial of, (1) where the applicant avers he never made the instrument ; (2) where the proof shows that the party against whom the motion is made has not the possession or control of the instrument. Before SEDGWICK, Ch. J., TRUAX and INGRAHAM, JJ. Decided October 25, 1888. Appeal by defendants from order vacating order requiring the plaintiff to deposit with the clerk the agreement upon which the cause of action is based, or etc. Knevals & Perry, attorneys, and Jumes W. Perry, of counsel for appellants. Goodrich, Deady & Goodrich, attorneys, and of counsel for respondent. PER CURIAM. The application for the discovery, was professed to be made for the purpose of enabling the defendants to frame an answer. The affidavit of the principal defendant shows that the answer can be made without a discovery, for he avers that the agreement or alleged agreement asked to be discovered, was never made by him, whether or not there should be relief after issue joined, is not before the court. Further, the court below was right in setting aside the order upon its finding from the affidavits that the plaintiff had not the possession or control of the instrument in question: $806 Code Civil Procedure. The proof on this subject was of such a nature, that the conclusion of the court below, as to this fact, cannot be reversed. The order should be affirmed with $10 costs and disbursements to be taxed. Statement of the Case. ANN DUFFY, PLAINTIFF v. MICHAEL DUFFY, DEFENDANT and RESPONDENT. Revivor-Motion for under § 757 Code Civil Procedure as amended by chapter 542, Laws of 1879, as to denial of on mere ground of delay. Before SEDGWICK, Ch. J., FREEDMAN and INGRAHAM, JJ. Decided January 7, 1889. The action was one at law. The original plaintiff died more than ten years before a motion to revive was made. The motion was denied at Special Term on the ground that too much time had elapsed; and an order was entered denying the motion. E. B. & C. P. Cowles, attorneys, and of counsel for moving parties, appellants. John E. Parsons, attorney, and with II. B. Closson, of counsel for respondent. The Court (FREEDMAN, J., writing) held "that under Coit v. Campbell, 82 N. Y. 509, the motion was properly denied; but that the late case of Holsman v. St. John, 90 N. Y. 461 (which was decided without noticing Coit v. Campbell) was in apparent if not in real conflict with Coit v. Campbell; that the late case should be followed unless some distinction could be drawn between them; that the only distinction the court was able to draw is, that the first case was in equity and the latter an action-at-law; that it might still be a debatable question, notwithstanding Greene v. Martine, 21 Iun 136, affirmed, 84 N. Y. 648, whether a distinction between an action in equity and one at law should be maintained; and that in view of the circumstances and the great importance of the question, it was in the interest of all parties to affirm the order so that the question VOL. XXIV.-38 Statement of the Case. involved might be squarely presented to the court of appeals, and put at rest by that court.' The order was affirmed. SEDGWICK, Ch. J., and INGRAHAM, J., concurred. ANN MARIA PALMER, PLAINTIFF v. GEORGE H. SAFFT, DEFENDANT. Ejectment; adverse possession is established where the premises sought to be recovered have been for the twenty years immediately prior to the commencement of the action inclosed by a substantial inclosure, and have during all that time been in the possession of the defendant and his grantors claiming title thereto, and neither the plaintiff nor his ancestors, predecessors or grantors have been seised or possessed thereof within that period. Before SEDGWICK, Ch. J., FREEDMAN and INGRAHAM, JJ. Decided January 7, 1889. This is an action of ejectment. A verdiet was directed for the plaintiff, and exceptions were ordered to be heard at the General Term. McKoon & Foote, attorneys, and D. D. McKoon of counsel for plaintiff. Eugene K. Sackett, attorney, and Lemuel Skidmore, of counsel for defendant. The Court (INGRAHAM, J., writing) held "as set forth in the head note, citing Code of Civil Procedure, §§ 365372; Page v. Waring, 103 N. Y. 636; and held that there was sufficient evidence of the facts constituting Statement of the Case. adverse possession to carry the case to the jury; and therefore sustained defendant's exceptions and ordered a new trial." SEDGWICK, Ch. J., and FREEDMAN, J. concurred. CHARLES MAYER, ET AL., RESPONDENTS v. PHILIP HEIDELBACH ET AL., APPELLANTS. Appeal-On a second appeal, the law as expounded on the first must govern, there being no essential differences in the facts. Before SEDGWICK, Ch. J., FREEDMAN and INGRAHAM, JJ. Decided February 4, 1889. The above case was twice tried. It was first tried before the court without a jury by consent of the parties, and resulted in a decision and judgment against plaintiffs. On the appeal to the General Term by the plaintiffs, the appeal book did not contain the evidence, but only the findings of fact and law. The General Term reversed the judgment and ordered a new trial (54 N. Y. Super. Ct. R., p. 438). On the new trial which was also had by consent before the court without a jury, a decision was made in plaintiffs' favor, from the judg ment on which the appeal was taken. The appeal book contained all of the evidence as well as the findings of fact and law. The findings of fact and law contained in the appeal book on the first appeal presented all the material facts disclosed by the evidence given on the new trial. The court in affirming the judgment rendered for the plaintiffs on the new trial, held as set forth in the head note. Statement of the Case. Sterne & Thompson, attorneys, and Simon Sterne and John K. Creevey, of counsel for appellants. James C. Foley, attorney and of counsel for respond ents. SOPHIE HILLESUM, RESPONDENT v. THE MAYOR, &c., OF THE CITY OF NEW YORK, APPELLANT. Trial, conduct of—Rulings on objections to questions, and striking out answers. Uncertainty of questions, ground for their exclusion—Statement to Physician if not appearing to be made for his professional guidance, and the time when made not appearing, is inadmissible—Where on a party's examination, a witness has denied having had any conversation with another witness on a certain subject, it is in the discretion of the trial judge whether on the same party's examination, he will allow further interrogation as to a conversation on that subject. The necessary consequences of a future or conditional state of affairs cannot be asked of a witness. Credibility of witness, assuming that of two witnesses for the defence one or the other must be responsible to the defendant by reason of an accident complained of occurring through the defective condition of the sidewalk in front of his particular premises, yet that fact cannot be used by the jury to estimate the credibility of either in particular, therefore a refusal to charge that the defendant has a right of action over against the owner of the property in front of which the accident occurred for the reimbursement of any verdict rendered, is not error. Instances of irresponsive answers. Before SEDGWICK, Ch. J., FREEDMAN and TRUAX, JJ. Decided March 5, 1889. Appeal by defendant from order granting a motion for a new trial, made by plaintiff upon the minutes. Henry R. Beekman, counsel to the corporation, attorney, and Henry B. Twombly of counsel for appellant. Klebisch & Marks, attorneys, and M. L. Marks of counsel for respondent. |