The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-12-03

fectory garden" This bsquest has called at
tention to tho subject OF deiamatory matter In
Wits. and 10 is surprising to learn how often
testators have paid OF old scores in this way
In England the Court OF Probate has the power
to order the libellcus portions OF q will to be
omitted In engrossing the instrument for pro-
bate and registry. This power. however, is ex-
ercised only In extreme cases. In the matter OF
Honywood. decided by Lord Penzance in 1871.
the testator expressed his most sacred wish that
q brief In the case OF Honywood vs.. Hony-
wood should be kept In the family and
handed down to all ages as a witness OF tho
terrible iniquity which had robbed him OF hs
birthright and blotted out the Essex branch OF
Honywood forever. He accused his brothers
wife OF having deliberately defrauded him OF
his inheritance. and to leave no doubt OF his
views on the subject, added: Il hereby record
my most solemn conviction that my poor
brother was perfectly unconscious and inno-
cent OF what was done and that he was simply
an instrument in the hands Of his wicked and
remoTseless wife" Lord Penzance would not
order these remarks to be omitted from the
record. saying 1t was unlikely that any ono
would feel hurt at the angry expressions OF
disappointed litigant.
On Wednesday afternoon there was a novel
ut Albany. For six hours. with the exc. ption
OF recess for luncheon. Gov. Roosevelt la
toned to argument from lawyers Of the Eighth
judicial district in reference to the appoint
ment OF successor to Mr.. Justice White OF
Buffalo on the bench OF the Supreme Court
Four delegations attended before the Gov
ernor. representing four different candidates
The aspirants whose fitness and ability were
thus exploited are: George Clinton OF Buffalo.
William H. Hotchkiss OF the same city Fred
erick W. Kruse Of Olean. the present County
Judge OF Cattaraugus county. and hlvah X.
Potter Of Lockport. So much OF the legal busl-
ness OF the Eighth district arises in Buffalo
that there is much force In the demand OF tho
bar OF that city that the new Judge should be
Buffalo man. Tho Governor said that he
thought he had received more lettcrs for Mr..
Hotchkiss than In favor OF any other candidate.
On the other hand. the supporters OF Judge
kruse find encouragement in tho fact that
their favorite was in the Legislature whom the
Governor was member o, the Assembly.
where he had m opportunity to observe his
capacity and atta!nments.
Tho unexpected death OF Judge John r.
Putnam OF Saratoga, which was announced
early In the week from Hong Kong. whsre he
had gone to visit son in the Chinese Imperial
Supreme Court in the Fourth Judicial district.
The Governor Ia authorized to Ill this vacancy
by an appointment TO last until the end OF next
year. The Fourth district comprises the
counties OF Warren. Saratoga, Washington.
Essex. Franklin. ST. Lawrence. Clinton. Mont
gomery. Fulton, Hamilton and Schenectady.
1t Is entitled to six judges Saratoga was
represented by Judge Putnam. The other
judges reside as follows: Mr.. Justice Laudon
In Schenectady. Kellogg In Clinton county.
Russell In ST. Lawrence. Slower in Montgom-
cry and Mclaughlin in Essex county. Judge
Putnam is tho fith member OF the Appellate
Division who has died since the organization
OF that branch OF the Supreme Court at the
beginning OF 1898. the Second Department
having Lost Calvin L. Pratt and tho Fourth
Department Manly G. Green. Hamilton Ward
and David L. Follstt. The First Department.
in this city. is the only one which has not been
invaded by death.
We have received the full text Of tho opinion
OF the Court ot Appeals In the case OF Reynolds
against the Ftna Life Insurance Company, to
which reference was m ado last week II Ia writ
ten by Judge Celora T. Martin. and takes sub
stantaly the same view OF the con luct OF the
receiver as was taken by Mr. Justice Wood
ward in the Appellate Division. speaking OF
the obvious fraud" OF the appellants IN oh
tanning from the insurance company the money
that justly and legally belonged to the plaintiff
The opinion Is noteworthy. however. as con-
tanning q very clear and explicit statement by
the Court OF Appeals OF the powers aud func-
lions Of the Appellate Division OF the supreme
Court. In all matters OF substantial right"
says Judge Martin. "the Appellate Division has
not only the power. upon review Of the decision
Of trial court. to use its own discretion as to
matters OF discretion. but also has the power to
decide for itself all questions OF fact Just ned by
the evidence. 1t may modify as well as revorse
the order or judgment appealed from. II Ia the
correctness OF the decision that Is up for review
in that court. and 1t may make such an order
or direct such a Judgment a. the Trial Term
should have made or directed In the first in
stance"
Tho death OF the venerable James ". Smith
OF Buffalo. which occurred on Monday last, has
deprived the bar Of western New York Of one
OF It's most distinguished members. Ho was
bcst known to the public by his service for up
ward OF fourteen years t1S73-lSS7l on the
bench OF the Superior Court Of Buffalo. That
tribunal, like the former City Court OF Brook
lyn and the Superior Court and Court OF Com
mon Pleas In this city. became merged in tho
Supreme Court by the operation OF the new
Constitution OF 1894. Judge Smith was born
In Vermont in 1916. came to st. Lawrence
county In 1924. where he obtained the creator
part OF his education. studied law chiefly ut
Albany, where he was admitted to the bar In
1897, and in the following year went to Buffalo.
which was still suffering severely from the
effects OF the commercial panic OF 1898. His
subsequent career there is tho story OF the
successful lawyer OF high character and oXcrp-
tional professional and business sagacty
Judge Smith was at one timG II partner " tho
late John Ganson, OF whom We wer" once told
by q Judge OF tho Court OF Appeals that he
never spoke longer than twenty minutes in TN
argument before that tribunal-yet few law
yers were more successful thore In his time.
Rarely do wo find 4 higher ttihu q - tho
memory ~ a lawyer than il contained In thr.u
few words which We copy from tn" Eug,iO h.
press In ref"ren"' TO the ntr Judge Smith OF
that city. james NJ Smith, who died vcstrr-
dny was an upright Judg", ana ia his timo
Identified with many o! the loading interests
OF Buffalo; hut his test monument Is his
reputation for hon"v0louce. He not only Gurn