Conkling v. . Weatherwax
New York Court of Appeals
Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 16, 1904, reversing a judgment in favor of appellants herein entered upon a decision of the court on trial at Special Term and granting a new trial.
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Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 16, 1904, reversing a judgment in favor of appellants herein entered upon a decision of the court on trial at Special Term and granting a new trial. This action was brought to establish and enforce a legacy as a lien upon real estate and on the trial the following facts appeared: Henry Weatherwax, a resident of the county of Rensselaer, died on the 8th of May, 1868, leaving a will which was dated March 14th, 1863, and was admitted to probate on the 3rd of September, 1868. He…
1Concurrence
Cullen, Ch. J.
I concur with Judge Vann in the view that the declarations of the mortgagor that the legacy had not been paid were incompetent as against the mortgagee. I also concur with my brother in the proposition that the lapse of time created a presumption that the legacies, which are the subject of the action, had been paid or, at least, that the trial court might so find. The admission of incompetent evidence (the only evidence on the question) to rebut this presumption was, therefore, a vital error for which the judgment of the Special Term was properly reversed by the Appellate…
2Cases cited29 opinions
- McKyring v. . BullNew York Court of Appeals · 1857
- Lent v. New York & Massachusetts Railway Co.New York Court of Appeals · 1892
- Knapp v. . RocheNew York Court of Appeals · 1884
- Quin v. . LloydNew York Court of Appeals · 1869
- Lerche v. . BrasherNew York Court of Appeals · 1887
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