Volume 103 — New York Appellate Division Reports

Appeal by the defendants, Edward W. Coughlin and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of February, 1905, appointing a temporary receiver of the property of the defendant The Coughlin-Sanford Switch Company, and granting an injunction pendente lite.

Appeal by the defendant, William Erbe, from an interlocutory judgment of the Supreme Gourt in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of March, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging the assignment of a certain lease from the plaintiff to the defendant to be fraudulent, null and void, and setting aside and vacating said assignment and directing that the…

Appeal by the defendant, The Fire Insurance Company of the County of Philadelphia, from' a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 9th day of March, 1904, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, Max Goldstein and another, from an interlocutory judgment of the Supreme Court in favor of the-plaintiff, entered in the office of the clerk of the county of New York on the 28th day of March, 1904, upon the decision of the-court, rendered after a trial at the New York Special Term, appointing a receiver and directing an accounting.

Appeal by the defendant, the Clyde Steamship Company, from a judgment of the Supreme Court in favor of the plaintiff, entered ■ in the office of the clerk of the county of Hew York on the. 27th day of May, 1904, upon the verdict of a jury for $2,000, and also from an order, as resettled, entered in said clerk’s office on the 19th day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Bank of America, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of October, 1903, upon the decision of the court, rendered after a trial before the court without a jury at the New York Trial Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the plaintiff, Samuel Ballenberg, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of September, o1904, denying the plaintiff’s motion for leave to inspect and examine defendants’ books for the purpose of framing his complaint.

<p> Motion to strike out allegations of a complaint, setting forth special damages a/rising out of the non-payment of a draft—questions whether a cause of action or defense is pleaded should he determined on demurrer or on the trial, not on motion. </p> <p>Orderly practice requires that where a question arises as to whether a pleading states a cause of action or a defense, such question should be determined by a demurrer or upon the trial of the action. This is especially the case where the question arises as to the measure of damages.</p> <p>Where, in an action brought to recover upon a draft, which the defendant, after accepting, refused to pay, the plaintiff claims to be entitled to recover not only the amount of the draft, but also certain special damages which he claimed to have sustained in consequence of the defendant’s refusal to pay the draft, it is improper for the court to strike out as frivolous and irrelevant the allegations of the complaint setting forth the facts upon which the plaintiff’s claim to recover the special damages in question was based, and thus to determine on motion the question of the right of the plaintiff to recover such damages.</p>

Appeal by the plaintiff, George N. Seger, as administrator, etc., of Louisa Schaeffler, deceased, from a judgment of the Supreme Court in favor of the defendant, The Farmers’ Loan and Trust Company, as substituted trustee, etc., entered in the office of the clerk of the county of New York on the 25th day of March, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the plaintiff, Elizabeth M. Weigand, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of January, 1905, denying the plaintiff’s application for alimony and granting her application for counsel fee by the allowance of fifty dollars only.

Appeal by the defendant, The Union Bag and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office pf the clerk of the county of Washington on the 26th day of October, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 27th day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Replevin — when a judgment for the return of the article and, if that be impossible, for its value may be entered on a verdict for its value simply — what complaint states a cause of action in replevin as distinguished from one for conversion.</p> <p>The complaint in an action alleged that the plaintiff owned a watch, which was feloniously taken from him and which thereafter came into the defendant’s possession; that the defendant had refused a demand made upon him for the watch and wrongfully detained the same; that the defendant had sold and disposed of the watch, with the intent to deprive the plaintiff of the use and benefit thereof; that the plaintiff, at the time of the commencement of the action, was the owner of said watch and was entitled to the immediate possession thereof; that by reason of the premises the plaintiff had been damaged in the sum of seventy-five dollars. The complaint concluded as follows: “Wherefore, plaintiff demands judgment against defendant for the possession of the said watch, or for the sum of seventy-five dollars (§75.00) in case possession thereof cannot be given to plaintiff, and for the sum of seventy-five dollars (§75.00) damages, together with the costs of this action.”</p> <p>Evidence was given upon the trial of the plaintiff’s ownership of the watch, of its value and of the fact that the defendant had disposed thereof. The trial judge, in submitting the case to the jury, directed them to find, if for the plaintiff, for the value of the watch. The plaintiff’s counsel thereupon requested the court to direct the jury to find an alternative verdict for the return of the watch, or, in case a return could not be had, for its value. The court refused to so charge, stating that it was admitted by the defendant that the watch could not be returned, having been destroyed; that the law did not require a useless thing. The jury returned a verdict for the plaintiff for the sum of thirty-five dollars. Thereafter judgment was entered, signed by the presiding judge, declaring the plaintiff’s right of possession of the watch and directing that it should be returned or, if return was impossible, that plaintiff should be entitled to thirty-five dollars, its value, and that the plaintiff have judgment for thirty-five dollars costs.</p> <p>Held, that a motion made by the defendant to correct the judgment so that it might conform to the verdict, and to strike out the provision for costs (thus conforming the verdict to that proper in an action for conversion) was properly denied;</p> <p>That the complaint stated a cause of action in replevin and that the allegation contained therein to the'effect that the defendant had sold and disposed of the watch with intent to deprive the plaintiff of the use and benefit thereof was not inconsistent with the intent of the pleader to proceed in replevin, as an action in replevin may be maintained against one who has had the custody and _ possession of the article claimed and has parted with possession of the same improperly before the commencement of the action;</p> <p>That the allegation of damage in the complaint would be deemed an allegation of such damage as the plaintiff would he entitled to claim for the detention of the property;</p> <p>That under the verdict the trial court properly entered a judgment in replevin in the alternative form required by section 1726 of the Code of Civil Procedure; That the plaintiff had not consented to a change in the form of the action from one in replevin to one in conversion, and had not accepted the verdict as a ver- ‘ diet for damages in conversion;</p> <p>That a cause of action for conversion is utterly inconsistent with one for replevin. Chester, J., dissented.</p>

Appeal by Thomas W. Anderson and another, executors and legatees named in the alleged last will and testament of James Warnook, deceased, from a decree of the Surrogate’s Court of the county of Washington, entered in said Surrogate’s Court on the 25th day of Jnly, 1904, refusing to admit to probate the said alleged last will and testament.

Appeal by the plaintiff, Frederick Rivenburgh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schoharie on the 27th day of June, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Schoharie Trial Term, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 27th day of June, 1904, directing the dismissal of the said complaint.

Appeal by the defendant, The Village of Green Island, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 21st day of January, 1904, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 21st day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Counsel fee and expenses — they may be granted to the wife in an action to annul the marriage on the ground of impotency — in such case the marriage is not void ab initio —it is otherwise where one of the parties had a husband or wife living at the time of the mam'iage.</p> <p>In an action brought by a wife against her husband to annul the marriage on the ground of the husband’s impotency, the court has power to grant an order directing the husband to pay the wife an allowance for counsel fees and expenses to enable her to prepare for the trial of the action.</p> <p>Where one of the parties to a marriage is impotent, the marriage is not void ah initio, but is merely voidable at the election of the other party.</p> <p>Until the entry of a decree annulling the marriage such marriage continues to be a valid contract, and imposes upon both parties thereto the marital obligations, among which is the obligation of the husband to provide necessaries for the wife.</p> <p>Semble, thaA an allowance of alimony and counsel fees may not be made in an action to annul a marriage void ab initio, e. g., where the defendant had a former husband or wife living at the time of the marriage.</p>

Appeal by the defendant, Oarey Green, from a judgment of the County Court of Otsego county in favor of the defendant, bearing date the 31st day of December, 1903, and entered in the office of the clerk of the county of Otsego, upon the verdict of a jury convicting the defendant of the crime of rape in the first degree.

<p>Appeal by the petitioner, the Dental Society of the State of New York, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Rensselaer on the 5th day of July, 1904, denying the petitioner’s motion that a peremptory writ of mandamus be issued directing the clerk of Rensselaer county to cancel, erase and expunge from his records and files the entry of the name of William E. Walker on the book of registry of dentists of said county, and also the affidavit of said Walker appearing upon said book of registry of dentists, and verified August 19, 1895.</p> <p>On the 19th day of August, 1895,'said William E. Walker made an affidavit before the clerk of the county of Rensselaer, a copy of which, other than the formal parts, is as follows: “ William E.' Walker being duly sworn deposes and says that his name is William E. Walker, that his age is 33, and that the legal authority by which he is practising dentistry within this State was conferred upon him by Diploma from Wisconsin Dental College. * * * Dated May 5,1893.”</p> <p>It is claimed that such affidavit has been changed and that in 1900 and prior thereto the date of the diploma as stated in the affidavit was “ May 5, 1883.” The. affidavit is partly printed and partly written on a page of a bound volume kept by said clerk in his office. Upon said affidavit said William E. Walker was on said 19th day of August, 1895, registered in a book in said office known as “ Dentist’s Registry.” Said book is ruled in columns, and the entries therein relating to said Walker are as follows : “In the column headed Date of Registration ’ the words and figures ‘August 19, 1895,’in the column headed ‘Name’ the words ‘William E. Walker,’in the column headed ‘Post Office Address’ the figures and words ‘ 32 Fourth st.,’ in the column headed ‘ P. 0. Address ’ are the words and letters ‘ Troy, N. Y.’ ”</p> <p>Said Walker continued in the practice of dentistry in the said county of Rensselaer for several years, and is now practicing dentistry in Columbia county. He has never been licensed by the Regents of the University of the State of New York. The Wisconsin Dental College was not on the 19th day of August, 1895, nor at any time prior thereto or since, a registered dental school. It is claimed that the Wisconsin Dental College sold its diplomas and that said Walker purchased a diploma from said college for fifty dollars.</p> <p>• In 1900 said Walker was notified by the Dental Society of the State of New York that he was not licensed in conformity with the Public Health Law and that he must cease practicing as a dentist; It appears that thereafter and on the 12tli day of March, 1900, said Walker made an application by petition to the Supreme Court “ That he be permitted to file the certificate of study under private preeeptorship with the Secretary of the State Dental Society required of students of dentistry prior to the passage of Chapter 626 of the Laws of 1895 of the State of New York,* and that such certificate be so filed nunc pro tunc as of July 31st, 1893 ; and that he be further permitted to file his notice that he intends to avail himself of the exemption provided for in Chapter 626 of the Laws of the State of New York enacted for the year 1895 † with the Board of Regents of the University of the State of New York, nunc pro tunc as of September 1st, 1895.” In such petition said Walker stated that he had been a student of dentistry continuously since 1888 ; that he was a student of a person named, at Pittsfield, Mass., from November, 1888, to September, 1892; with a duly' licensed practitioner of dentistry in Troy in this State from September, 1892, until July 1,1899, with the exception of the year 1895 when he was a student and employee with another duly licensed practitioner of dentistry in the State of New York doing business at Albany, and that the petition was made in pursuance to a suggestion made to him by the secretary of the Board of Regents of the University of the State of New York. An order was granted at the Special Term in accordance with the prayer of the petition but said Walker never-presented himself for examination. On the 4th day of November, 1901, said Walker, made an affidavit before the county clerk of Columbia county, in which he stated among other things that he had a license issued August 19, 1895, and that he had complied with all the preliminary requirement's of chapter 626 of the Laws of 1895, and the rules of the Regents and the Board of Dental Examiners of the State of New York as to the terms and amount of study and examinations.</p> <p>He did not present a certificate showing that the original registration was of an authority issued under seal by the Regents and the certificate was not indorsed by the Regents as entitled to registration. (See Laws of 1893, chap. 661, art. 9, § 162, as amd. by Laws of 1895, chap. 626; Laws of 1896, chap. 297, and further amd. and renumbered as § 169 by Laws of 1901, chap. 215.) He was registered in Columbia county.</p> <p>On the 30th day of March, 1903, a bill was introduced in the Assembly of the State of New York to legalize, ratify and confirm the registration of Walker as a dentist in the county of Rensselaer, but the proposed act did not become a law. Criminal proceedings were commenced against the said Walker in the counties of Rensselaer and Columbia for illegally practicing as a dentist in said counties respectively. The grand jury failed to indict said Walker o in either county. The reason as stated by the district attorney of one of said counties was that so long as the name of Walker appeared upon the registry of licensed dentists in the county clerk’s office the grand jury were unwilling to find a bill of indictment against him. Thereafter a demand was made upon the clerk of the county of Rensselaer by the said Board of Dental Examiners, and also by the Commissioner of Education on behalf of the University of the State of New York that he cancel and expunge from the record said affidavit and said registration. Said clerk refused to comply with such demand without an order of the court therefor. This motion was then made. The notice of motion and a copy of the papers upon which it is founded were personally served upon said clerk and upon William E. Walker. Upon the day upon which the motion came on to be heard said Walker did not appear, but one of the counsel who liad appeared for him in opposition to an application to resubmit the charge against Walker to the grand jury in Columbia county appeared on behalf of the clerk of Rensselaer county, but did not in any way deny the allegations contained in the papers used by the relator on the motion. The motion was denied, “ but without prejudice to the bringing of any new proceeding or action in which William E. Walker shall be made a party, or to renewal of this motion.”</p> <p>From the order so entered this appeal is taken.</p>

Appeal by the plaintiff, Charles H. Kavanaugh, who sues on behalf of himself and all other stockholders of the Commonwealth Trust Company of New York (formerly the Trust Company of the Republic) who. are situated similarly with himself, from an interlocutory judgment of the Supreme Court in favor of the defendants Wetmore and Brooker, entered in the office of the clerk of the county of Saratoga on the 13th day of December, 1904, upon the decision of the court, rendered after…

Appeal by the defendants, Benjamin Rowe and Frederick Rowe, individually and as executors, etc., of Benjamin F. Rowe, deceased, and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 13th day of July, 1904, upon the decision of the court, rendered after a trial at the Albany Special Term, overruling the 'said defendants’ demurrer to the plaintiff’s complaint, and also…

Appeal by the plaintiff, the Waterford Electric Light, Heat and Power Company, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Rensselaer on the 25th day of June, 1904, sending a report of commissioners appointed in condemnation proceedings back to them for further report.

Appeal by the plaintiff, Huldah B. Hallenbeck, from a judgment of the Supreme Court in fav.or of the defendants, entered in the office of the clerk of the county of Albany on the 17th day of June, 1904, upon the decision of the court rendered after a trial at the Albany Trial Term, the jury having been discharged, dismissing the plaintiff’s complaint upon the merits. The action was brought against Albert C. Hallenbeck, individually, Albert 0.

Appeal by the defendant, the Caledonian Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 29th day of October, 1903, upon the decision of the court rendered after a trial at the Rensselaer Trial Term, certain questions of fact having been submitted to a jury, and also from an order entered in said clerk’s office on the 27tli day of October, 1903, denying the defendant’s…

<p>Manufacture of a machine for a particular purpose — implied warranty of fitness — reasonable time allowed for Us acceptance — question of fact — an express warranty on a sale cannot be read, into a subsequent contract therefor — an implied wa/rranty survives such contract — evidence of an executed contract — am, executed contract distinguished from an executory contract in respect to the right to retain the property and sue on a warranty — duty to return the propen'ty in the latter case not excused by the fact that the title remains in the vendor — evidence of acceptance and rejection.</p> <p>The purchaser of a machine manufactured for a special purpose is entitled before he will be deemed to have accepted the machine to a reasonable time in which to examine it, which reasonable time includes time enough to put the machinery in motion and see whether or not it operates properly.</p> <p>When it is a question of fact whether the purchaser of such a machine has accepted it, although it has remained in his possession for more than five months, considered.</p> <p>An express warranty, contained in advertisements published by the vendor of the machine or in letters written by him to the vendee, cannot be read into a subsequently written contract for the sale of the machine which contract does not contain such express warranty.</p> <p>A person who manufactures and sells a machine which he knows to be designed for a particular purpose to a person having no special knowledge of the machine, impliedly warrants that the machine is fit for the particular purpose and that it will do the work for which it is intended.</p> <p>Such implied warranty survives the execution of a written contract for the sale of the machine which does not contain any such warranty.</p> <p>The passing of title is the distinguishing feature of an executed contract of sale.</p> <p>In the case of an executed contract of sale the vendee may retain the property and sue or counterclaim for the breach of an express or implied warranty. In the case of an executory contract of sale the vendee may retain the property and sue or counterclaim for the breach of an express warranty.</p> <p>In the case of an executory contract, where there is an alleged breach of an implied warranty, the vendee, in order to recover the damages resulting from such breach, must, after a reasonable time for inspection, return or offer to return the article contracted to be sold.</p> <p>In such a case the vendee’s failure to return or offer to return the goods is not excused by the fact that, under the contract, the title to the goods was to remain in the vendor until they were paid for.</p> <p>The vendee’s acceptance of the goods may be inferred from his conduct, but his rejection thereof must be established by some affirmative action.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 27th day of August, 1904, directed to the Board of Railroad Commissioners of the State of New York and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting the Niagara Transfer Railway Company a certifícate of public convenience and a necessity under section 59 of the Railroad Law.</p>

<p>Grime — the right of a prisoner to commutation cannot he taken away by a statute passed after the commission of the crime — an indeterminate sentence in respect to such a criminal may equal but not exceed the maximum term less commutation.</p> <p>Section 687a of the Penal Code provides that upon the conviction of any person, never before convicted of a crime, the maximum penalty for which, exclusive of fines, is imprisonment for five years or less, the sentence to a State prison shall be an indeterminate one, the minimum of which shall not be less than one year, or in case a minimum is fixed by law, not less than such minimum, and the maximum of which shall not be more than the longest period fixed by law for which the crime is punishable, and also that the maximum limit of such sentence shall be so fixed as to comply with the provisions of section 697 of the Penal Code, which requires that on all sentences to imprisonment in a State prison or penitentiary the court must limit the term of sentence so that it will expire between the first day of April and the first day of November, having reference to the probability of the convict earning a reduction of his term for good behavior, and assuming that such reduction will be earned.</p> <p>The amount of the reduction of a term which a convict may earn for good behavior is fixed by chapter 21 of the Laws of 1886, which, prior to April 6, 1903, applied both to indeterminate and determinate sentences. On April 6, 1908, chapter 137 of the Laws of 1903 went into effect, which amended chapter 21 of the Laws of 1886, b} taking away the right of a convict, sentenced under an indeterminate sentence, to earn commutation for good behavior.</p> <p>Reid, that the right of a convict to earn commutation of his sentence, pursuant to the act of 1886, was a substantial one, of which he could not be deprived by an act passed subsequent to the commission of such crime;</p> <p>That, consequently, chapter 137 of the Laws of 1903 did not apply to a person who, after such act went into effect, had been sentenced under an indeterminate sentence for a crime committed prior to the time when it went into effect;</p> <p>That with respect to such a convict the minimum term for which he could be sentenced could be as great as, but could not be greater than, the maximum term, less full commutation for good behavior.</p>

Cross-appeals by the plaintiff, Jennie H. Van Veghten, and by the defendant, The Hudson River Power Transmission Coriipany, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Rensselaer on the 27th day of February, 1904, upon the verdict of a jury for $250 in favor of the plaintiff, but denying the plaintiff’s motion for judgment directing the removal of an alleged nuisance, with notice of an intention on the part of the defendant to…

Appeal by the defendant, George H. Huber, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk.of the county of Essex on the 6th day of October, 1904, denying the defendant’s motion to set aside a judgment theretofore entered in said clerk’s office and an execution thereupon, and to be allowed to further defend the action upon the merits.

<p>Appeal by the plaintiff, Adelbert D. Brewer, from a judgment of the County Court of Chemung county in favor of the defendant, entered in the office of the clerk of the county of Chemung on the-21st day of June, 1904, upon the decision of the court, reversing a judgment in favor of the plaintiff rendered by a justice of the peace of the town of Erin, Chemung county, on the 18th day of April, 1903, and also from an order of said County Court, entered in said clerk’s office on the 7th day of July, 1904, amending the judgment appealed from.</p>

Appeal by the defendants, Judson A. Gibson and others, from a judgment of the County Court of Chemung county in favor of the plaintiff, entered in the office of the cleric of the county of Chemung, affirming a judgment of the City Court of Elmira.

<p>Appeal by the plaintiff, Sarah E. Kelly, from a judgment of the Supreme Court in favor of the defendants, Franklin B. Beers and another, as executors, etc., of Kate V. Beers, deceased, entered in the office of the clerk of the county of Albany on the 28tli day of June, 1904, upon the decision of the court, rendered after a trial at the Albany Trial Term, certain questions of fact having been submitted to a jury, dismissing the complaint upon the merits.</p>

Appeal by the claimants, Delilah Good and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Albany on the 18th day of August, 1904, confirming the report of a referee appointed to determine the question raised by the claimants to a preference in the distribution of the assets in the hands of the receiver of the defendant company, except so much of said order as denies the receiver’s motion that…

<p>Connection of railroads — the word “ intersecting” applies to all roads which connect — commissioners appointed to determine the manner of intersection ■— it may be made oner land already denoted to a specific use, if the use will not thereby be rendered ineffectual.</p> <p>Subdivision 8 of section 4 of the Railroad Law and section 12 of such law, both of which relate to the intersecting or connecting of a new railroad with an old railroad, should he read together, and when so read the provision in section 12 that every railroad that shall be “intersected by any n°w railroad” shall unite with the latter in forming the necessary intersections and connections, does not mean that the intersection must amount to a crossing by the new railroad. The old railroad is ‘ intersected ” within the meaning of section 12 whenever a turnout or switch is built, or it becomes necessary to build it, in order to connect the two roads.</p> <p>In the event of such a junction being determined upon by the new railroad company, it becomes the duty of the old railroad company to unite with the new railroad company in forming the necessary “intersections and connections ” and to grant the requisite facilities therefor.</p> <p>If the two railroad companies cannot agree upon the “ manner of such intersections” and connections, the court may, under section 12 of the Railroad Law, properly appoint commissioners to determine their differences.</p> <p>The mere acquiring and appropriation hy one railroad company of certain lands to its own use, or even to a specific use, will not prevent another company from taking the same lands for the purpose of crossing or connecting with such other road; bat, on the other hand, the road seeking to effect the crossing or connection may not invade or take such lands if the use to which they have already been appropriated will thereby be rendered ineffectual.</p> <p>Whether a connection can be made, without a practical destruction of the specific use to which the land has already been appropriated, is for the commissioners appointed pursuant to section 12 of the act to determine in the first instance subject to the approval of the court.</p>

<p>Appeal by the defendant, Franklin P. Gore, from an order of the Supreme Court, made at the St. Lawrence Special Term, and entered in the office of the clerk of the county of St. Lawrence on the 16th day of June, 1904, directing a physical examination, of the defendant, and also from a supplemental order, entered in said clerk’s office on the 5th day of July, 1904, changing the date named in the first above-mentioned order for such examination.</p> <p>The action is brought by the wife to annul her marriage to defendant on the ground of his physical incapacity and impotency. The husband answers, admitting that the parties were married on April 15, 1903, and denying all the other charges in the complaint. The plaintiff thereupon, on her affidavit verified May 14, 1904, to the effect that it is necessary that she should have a physical examination of the defendant, showing his past and present physical condition, in order to prepare for the trial and to properly conduct the same; and on the affidavit of her attorney, verified May 16, 1904, to a similar effect, and on the pleadings in the action, procured an order upon notice to the defendant’s attorneys at a Special Term of this court, requiring the defendant to appear before a referee named, at a time and place fixed therein, and submit to a surgical examination as to the matters contained in said complaint. Such examination to be conducted by two physicians and surgeons therein named and residing in the city of Ogdensburg, M. T. The order further provides as follows : “ That said physical examination.be limited to the physical condition of the said defendant previous to the commencement of this action and during all of the lifetime of said defendant and the physical condition of said defendant at the time of said marriage and ever since and at the present time, and, for the purpose of assisting said physicians in said examination, said defendant, Eranklin P. Gore, may be examined and his deposition taken as to the facts, duration' and extent of his said physical disability, and that the depositions of said physicians be taken by said referee as to the facts found and ascertained by them upon such physical examination with their opinions as to the physical capacity of said defendant to have sexual intercourse and enter into the marriage relation with their opinion therefor.”</p>

<p>Appeal by the defendant, Peter N. Banta, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 11th day of May, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>Defendant is an old man, and for many years has lived on a farm in Saratoga county. His wife died on April 26, 1900, and left him without children or descendants. He was living alone with an inefficient servant or housekeeper when he made an agreement with Lis brother, this plaintiff, substantially as follows: He, the plaintiff, and his wife were to leave their home in Watervliet, where both were earning fair wages, and go and reside on the farm with defendant ; and the brother, George, was to do whatever was necessary in and about the farm and to relieve defendant from his cares and worry about it; and upon defendant’s death plaintiff was to have, as compensation for the same, the farm itself and as much more in money. The farm was about 300 acres, and defendant then said it was worth about $18,000 or $20,000. It was also further agreed that plaintiff and his wife should have their living on the farm and a reasonable amount of money for clothing and spending money. Defendant was worth about $200,000, and the farm and money were to be secured to plaintiff by the defendant’s will.</p> <p>Such was substantially the bargain as made between the parties. The plaintiff and his wife continued to reside with the defendant and perform the services agreed upon until June 6, 1902, when the defendant discharged them both, and ordered them to leave the premises. After having so left the premises the plaintiff brought this action to recover damages for the breach of such contract. He sets out in the complaint that he has been at all times ready and willing to perform on his part, alleges that by the breach he has been deprived of his opportunity to earn the compensation agreed upon, and asks to recover the sum of $40,000 as damages for the breach.</p> <p>Upon the first trial the complaint was dismissed upon the ground that the contract which is alleged to have been broken by defendant was void under the Statute of Brands. On appeal this court reversed that judgment on the ground that no such defense having been set up in the answer, no such judgment should have been taken. (84 App. Div. 138.) The defendant thereupon amended his answer, and set up such defense. Upon this second trial the jury rendered a verdict in favor of plaintiff for the sum of $675.12, and from the judgment entered thereon, and the order denying a new trial herein, the defendant now takes this appeal.</p>

Appeal by the plaintiff, John J. Riley, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Columbia on the 25th day of Rovember, 1904, as resettled by an order entered in said clerk’s office on the 16th day of January, 1905.

<p>Cboss-appeals by the plaintiffs, Charles Hathaway and others, and by the defendant, The County of Delaware, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of Broome on the 1st day of J uly, 1904, upon the decision of the court, rendered after a trial at the Broome County Trial Term, the jury having been discharged, dismissing the complaint upon the merits as to the first cause of action, and in favor of the plaintiffs as to the second cause of action set forth in the complaint.</p> <p>The plaintiffs, a firm of private bankers, seek in this action to recover from the defendant the sum of §15,000 upon two separate and distinct claims. The facts upon which they claim to recover one amount of §10,000 may be briefly stated as follows: For some six years prior to January 1, 1900, one Woodruff had been the treasurer of Delaware county. On January first of that year he gave place to his successor, Hugh Adair, and he had during those years converted to his own use quite a large amount of the moneys of the comity, but such conversion does not appear to have been then discovered. On or about February 8, 1900, Woodruff presented to the plaintiffs, a certain note or obligation, purporting to be executed by said Treasurer Adair and to be the obligation of the county of Delaware, by which that county apparently promised to pay to the plaintiffs the sum of $10,000 and interest on February 1, 1901, and represented to them that said county wished to borrow from them, upon such note, the said amount of $10,000, and desired them to deliver the amount thereof to the Albany County Bank, to the credit óf such county; that the plaintiffs thereupon, believing that the note was a genuine note of said county, and that Woodruff was' snch county’s duly authorized agent to make snch loan, discounted such note by drawing their check or draft for the amount of §10,000 upon the National Union Bank of New York city, payable to the order of the Albany County Bank to the “ credit of Treasurer of Delaware county,” and sent the same to such bank with instructions to so place it to the credit of Delaware county. Said bank, on or about February eighth, collected the amount thereof from said bank upon which it was drawn, and thereupon applied the amount so collected upon three notes aggregating $18,691.65 which it held against the said county of Delaware, and gave the county credit for that amount towards the payment of said notes; that subsequently the plaintiffs discovered that the note so presented to them by said Woodruff was not the genuine note of said county; that the signature of said Adair thereto was a forgery, and that the said county of Delaware was utterly ignorant of the advancement of said money by said plaintiffs to the Albany County Bank, and of any of the actions and representations made by Woodruff concerning the said alleged note and loan.</p> <p>The facts upon which the plaintiffs seek to recover the other amount, to wit, $5,000, are briefly stated as follows:</p> <p>Woodruff, on or about the 31st day of May, 1900, being indebted to Delaware county for moneys which he had previously converted to his own use while acting as treasurer of that county, for the purpose of raising money to meet such obligation to the county, falsely and fraudulently represented to the plaintiffs that the county of Delaware desired to borrow from them the sum of $5,000 upon its note or obligation for that amount, and at the same time presented to them what purported to be a note of said county for that amount executed by the said treasurer Adair, dated on that day and payable on February 1, 1901; that these plaintiffs, believing the representations then made by Woodruff and that the note so delivered to them was a genuine and valid note of the county, and for the purpose of making the said loan, received said note from Woodruff and executed their check or draft drawn upon the National Bank of Commerce in New York, payable to the order of Hugh Adair, county treasurer of Delaware county, for the sum of $5,000, and delivered the same to Woodruff with instructions to deliver it to the said treasurer of Delaware county; that said Woodruff thereupon, for the purpose of paying his said shortage of $5,000 to the county of Delaware, delivered such draft of $5,000 to said Adair as treasurer of Delaware county, who in good faith, and supposing that Woodruff was the owner thereof, received and accepted the same in payment and discharge of Woodruff’s said indebtedness and passed the amount to his credit. He subsequently collected from said National Bank of Commerce the amount of said draft and thereupon passed it into the treasury of said county, and still holds the same as having received it from Woodruff as aforesaid. Neither said Adair nor the said county of Delaware had any knowledge of Woodruff’s representations to the plaintiffs concerning the said note or its alleged desire to make a loan from these plaintiffs.</p> <p>Other facts appear in the following opinion.</p> <p>The trial court, substantially upon these facts, rendered a decision against the plaintiffs upon their claim for $10,000, and in favor of the plaintiffs upon their claim for $5,000 ; and from the judgment entered thereon each of the parties takes this appeal.</p>

Appeal by the defendant, John L. Scherz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of February, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by tbe plaintiff, Morris Levy, from an interlocutory judgment of tbe Supreme Court in favor of tbe defendants, entered in tbe office of tbe clerk of the county of New York on tbe 24th day of October, 1904, upon tbe decision of tbe court, rendered after a trial at the New York Special Term sustaining tbe defendants’ demurrer to tbe plaintiff’s complaint.

Appeal by the plaintiff, Zoe Theobald, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 23d day of February, 1904, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, the Norfolk and Western Bailway Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 2d day of November, 1904, upon the decision of the court, rendered after atrial at the New York Special Term, overruling the said defendant’s demurrer to the plaintiffs’ complaint.

Appeal by the defendants, the Columbia Paper Bag Company and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of February, 1905, granting the relator’s application for a peremptory writ of mandamus.

<p>Negligence— liability of the master for an injury arising from the use of a snubbing post insufficient to resist the strain put upon, it—how far its selection is a detail of the work.</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that the plaintiff was one of a gang of laborers employed by the defendants in the work of hoisting material for use in the construction of a building; that the hoisting was done by means of a derrick and that, to steady the object being moved, a line called a “ snub line ” was attached thereto and placed under the control of a laborer; that when the weight of the object was too great to enable the laborer to control its movements unassisted he would take a turnaround what was known as a “ snubbing post; ” that on the occasion in question the foreman of the gang of laborers told the laborer in charge of the “snub line” to take a “snub ” around a steel door frame; that as the object was being moved the door frame was pulled over and struck the plaintiff on his leg injuring him.</p> <p>The action was brought upon the theory that under section 18 of the Labor Law (Laws of 1897, chap. 415) the defendants were liable for a failure to furnish a sufficient “snubbing post.”</p> <p>On the trial a great preponderance of evidence was given to the effect that permanent “ snubbing posts ” are not'always provided by the master, and that it is customary for the man in charge of the “snub line” to use as a “snubbing post” any object which he deems sufficient for that purpose. It also appeared that the defendants had furnished appliances and materials with which permanent “ snubbing posts ” could have been erected if necessary.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed on the ground that it was against the great weight of evidence which showed that the selection of the steel frame for “snubbing” purposes was a detail of the work, and that the defendants were not liable for a mistake of judgment on the part of the foreman in directing a “snub ” to be taken around an object which proved to be insufficient to resist the strain placed upon it.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of June, 1904, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 7th day of June, 1904, denying the defendant’s motion for anew trial made upon the minutes.

Appeal by the defendant, Edward Hart, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of January, 1905, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by tbe defendant, Framed Meisner, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 23d day of June, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the separate defense set forth in the said defendant’s answer.

Appeal by the plaintiffs, Jacob Rothschild and others, as executors of and trustees under the last will and testament of Simon Goldenberg, deceased, and by the defendants Mary Goldenberg and others, from various portions of a judgment of the Supreme Court in favor of the defendants Jacob II.

<p>Negligence — injury from a collision between an ice wagon and an electric car — application of a city ordinance regulating the speed of “any cart, wagon or other vehicle ” — charge as to the effect of the defendant’s failure to call any witnesses.</p> <p>Upon the trial of an action to recover damages for personal inj uries sustained by the plaintiS, in consequence of a collision between an icé wagon which he was driving and one of the defendant’s electric street surface railroad cars,„a city ordinance, which provides, “It shall not be lawful for any cart, wagon or other vehicle, used for the purpose of carrying passengers, to be driven through any streets or avenues of the City of New York at a greater speed than at the rate of eight miles an hour,” is not competent in evidence, as it does not appear that such ordinance relates to electric street surface railroad cars.</p> <p>Upon the trial of the action the defendant produced no witnesses, hut elected to go to the jury upon the evidence produced by the plaintiff. The court charged, over the defendant’s objection, that the jury might take into consideration the fact that the motorman of the car was not sworn, although it did not appear that such motorman was still in the defendant’s employ or that it could produce him. The court further charged, over the defendant’s objection, that the jury might consider the fact that the defendant had produced no witnesses, thus not limiting such instruction to the effect of the defendant’s failure to call the motorman.</p> <p>Held, that the charge that the jury might consider the fact that the defendant had produced no witnesses was erroneous, as it did not appear that anybody except the witnesses examined and the motorman had seen the accident.</p> <p>Qucn’e, whether the charge would have been unobjectionable if copfined to the defendant’s failure to call the motorman.</p>

Appeal by the defendant, Albro R. Carman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of February, 1904, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of February, 1904, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of May, 1904, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 8th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William James, from an order of the Appellate Term of the Supreme Court, entered in the office of the cleric of the county of New York on the 30th day of June, 1904, reversing a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 23d day of February, 1904, upon the verdict of a jury, and an order of said City Court, entered in said clerk’s office on the 1st day of…

Appeal by the plaintiffs, Barnett Hamburger and another, copartners, doing business as Hamburger & Kleinfcld, from an order of the.Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 15th day of December, 1904, reversing a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, in favor of the plaintiffs, entered on the 21st day of September, 1004, and dismissing the plaintiffs’ complaint.

<p>Appeal by the plaintiff, Evelina Bracher, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of February, 1901:, upon the decision of the court rendered after a ti'ial before the court without a jury at the New York Trial Term.</p>

<p>Appeal by the plaintiff, Malcolm N. BntleT, from an interlocutory judgment of the Supreme Court in favor of the defendant., entered in the office of the clerk of the county of New York on the 15th day of October, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the second defense contained in the defendant’s amended answer.</p>

Appeal by the plaintiffs, Isidor Straus and another, composing the firm of R. H. Macy & Company, from so much of an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16tli day of December, 1904, upon the decision of the court rendered after a trial at the New York Special Term as overrules the plaintiffs’ demurrers to the second separate defense set forth in each of the amended answers…

<p>Corporations — compromise of a dispute between a lessor and a lessee railroad corporation, having in part the same directors, as to which is entitled to the benefit of a reduction in interest upon ills renewal of a mortgage debt — when the com.promise agreement is confirmed by a majority of the stockholders, fraud or ultra vires action must be shown to justify its being set aside at the suit of minority stockholders.</p> <p>The New York and Harlem Railroad Company in 1873 leased its railroad to the New York Central and Hudson River Railroad Company for a term of 401 years under an agreement by which the New York Central and Hudson Rivet-Railroad Company agreed to pay as rental eight per cent per annum on the par value of the capital stock and also the interest on certain bonds of the New York and Harlem Railroad Company. The existing bonds of the New York and Harlem Railroad Company, which became due in 1900, bore seven per cent interest, and as the time for their maturity approached it became evident that this bonded indebtedness could be refunded at a lower rate of interest. Each of the parties to the lease contended that it was entitled to the entire benefit which would accrue from the refunding of the bonds at a lower rate of interest and their respective contentions were supported by the opinions of eminent counsel. An action was brought to determine the question, and during the pendency thereof, at a meeting of the board of directors of the New York Central and Hudson River Railroad Company, a resolution was-adopted reciting that it was for the best interests of the company and the stockholders that there should be an amicable adjustment of the controversy, and a committee was thereupon appointed to negotiate with the New York and Ilarlem Railroad Company for such an adjustment.</p> <p>Subsequently, and on June 28, 1898, at a meeting of the directors of the New York and Harlem Railroad Company, at which there were present eight directors, three of whom were directors of the New York Central and Hudson River Railroad Company, a resolution was adopted which recited that whereas it was the opinion of the directors that it was for the best interests of the company and of the stockholders that the controversy should be amicably settled, it was resolved that a committee be appointed to negotiate with the New York Central and Hudson River Railroad Company for such a settlement. The resolution further recited that if the committee should reach an adjustment it should report the same to a meeting of the stockholders, provision for calling which was duly made.</p> <p>The committees from the two boards of directors met and reached an agreement providing for the refunding of the bonded indebtedness, the payment by the New York Central and Hudson River Railroad Company of an additional rental of two per cent per annum upon the capital stock of the New York and Harlem Railroad Company and that the New York and Harlem Railroad Company would not make any further claim against- the New York Central and Hudson River Railroad Company on account of the reduction in the rate of interest on the bonds.</p> <p>October 5, 1898, a meeting of the stockholders of the New York and Harlem Railroad Company was called for the purpose, as stated in the notice, of considering the proposed settlement. There were represented 157,561 shares out of the total capital of 200,000 shares of the New York and Harlem Railroad Company and of these 146,519 shares were voted in favor of the proposed settlement and 11,042 shares were voted against it. It did not appear that any fraud was practiced on the stockholders of the New York and Harlem Railroad Company or that the New York and Harlem Railroad Company, either by its directors or by a majority of its stockholders, has elected to rescind the agreement.</p> <p>Held, that the court would not set aside the agreement of settlement at the instance of a person who owned one-twentieth of the capital stock of the New York and Iliuiem Railroad Company;</p> <p>That a determination by the majority stockholders of a corporation is binding upon the minority stockholders, unless there is evidence that the act complained of was ultra vires or fraudulent, and, if the act is claimed to be fraudulent, that the majority stockholders were parties to such fraud and that it resulted in injury to the corporation or to the minority stockholders.</p>

Appeal by the New York Foundling Hospital from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of December, 1901, directing the appellant to furnish the respondent with certain extracts from its records in relation to her son, Albert Hammerman.

Appeal by the defendants, The New York Gas and Electric Light, Heat and Power Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of March, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of March, 1904, denying the defendants’ motion for a new trial made upon the minutes.

<p>Motion by the plaintiff, The Sloss Iron and Steel Company, for a new trial upon exceptions ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the defendant rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of July, 1904, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 12th day of July, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Beal estate broker’s commissions—what agreement in respedt to the payment of a less sum is -neither an accord and satisfaction nor a novation — what constitutes a novation — concealment by the owner of the fact that negotiations for a sale were practically consummated.</p> <p>One Schmidt, a real estate broker who had effected a sale of certain real estate to one Finn, entered into a written agreement by which Finn agreed in the event of a sale of the premises to pay him §8,600 on the consummation of said sale. Thereafter Schmidt placed his claim against Finn in the hands of an attorney. The negotiations between the attorney and Finn resulted in an offer by Finn to pay §3,500 and $350 counsel fee for the surrender of the written agreement and the delivery of a general release executed by Schmidt. Schmidt, upon being notified of the offer, stated that he would accept it, and a time and place were then appointed for the closing of the transaction. Schmidt appeared at the place appointed, his attorney’s office, shortl}' before the time agreed upon, but left for the purpose of getting the original written agreement. Shortly thereafter Finn appeared at the attorney’s office and produced two uncertified checks, one for §3,500 and one for §350, and stated that he would deliver the same upon receipt of the written agreement and a general release. The attorney, who did not have the agreement, did not accept the checks or deliver a release. ■ Schmidt did not return and Finn left.</p> <p>At the time these negotiations were in progress, Finn had practically consummated a sale of the premises which was subsequently perfected, but he did not disclose that fact to Schmidt.</p> <p>Held, that the transaction did not amount either to an accord and satisfaction or to a novation.</p> <p>A novation is the substitution of a new contract for an old one, which is thereby extinguished. Whatever rights there may be in the parties to the old contract are merged in the new, which in and of itself destroys the old, and thereafter the remedy of either party, in a case of a breach, is upon the new contract, according to its terms. ,</p>

<p>1. Gift by will to a charitable corporation of more than one-half the testator’s estate — who may assert its invalidity — 8. Effect of a release of the right—3. The prohibition does not apply to contract — 4- Consideration for a contract.</p> <p> 5. A trust in personalty may be created for any purpose. </p> <p>6. Wills and deeds of trust, distinguished—7, 8. The intention prevails in their construction—9. A construction making the instrument valid is preferred —10. The same person cannot be trustee and sole beneficiary — a merger results in such case—11. Otherwise when the interest is partial.</p> <p>18. Bequest to a charitable corporation, when-it does not create a trust —13. In what cases it may act as a trustee —14.. Words of trust may be disregarded—15. Power of revocation —16. Disposition by contract where the possession does not pass until death—-17. The consent of trustees and beneficiaries to carry out a trust is not a bar to the next of kin —18. A trust may be invalid as to only a part of the property —19. How far its validity is determined by the law of the testator’s domicile— when the laws of a foreign State govern—80. When a foreign State will administer an invalid trust on the ground of comity — 81. Annuities may constitute a trust or a mere charge; they may be inalienable or alienable.</p> <p>88. Agreement with a college to establish a professorship — what acts by the college constitute a consideration therefor—-83. Estoppel to contest charges imposedon the fund given for that purpose — 84. The trust may be effective in favor of the college and bad as to the charges on the fund—85. Validity of a trust deed intended to operate as a will — 86. When a trust deed is intended to operate in praesenti — 87. Reservation by the donor of a life interest, of a right of revocation, his constituting himself the trustee, etc.—• 88. When)the college takes the fund as owner and not as trustee—89. The provision for the other beneficiaries is not testamentary, but creates a charge— 30. A trust, invalid as to annuities charged on the fund may not be as to the college—SI. Estoppel of the college to assert their invalidity — 38. Validity of the trust as suspending the power of alienation, by what law governed — 83. Alienability of annuities at common law — 3j. Annuities in the absence of a strict trust are alienable under the laws of Wew York — 35. Annuities considered as severable as regards the trust fund—36. Power of a donor to malee a settlement on a college reserving a life interest to himself and subject to the payment of annuities to others.</p> <p>1. The right to assert the invalidity of a devise or bequest to a charitable corporation of more than one-half of the testator’s estate under chapter 360 of the Laws of 1860, which provides as follows: “No person having a husband, wife, child or parent, shall, by his or her last will and testament; devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one-half, and no more),” is not limited to the particular persons mentioned in the statute, but extends to any one who would take an interest in the estate if the devise or bequest should be declared invalid.</p> <p>2. Semble, that it is' competent for any of the persons mentioned in the statute to release their right to take advantage of its provisions, and that after executing such a release they will not be heard to complain of the violation of the statute.</p> <p>3. The prohibition contained in chapter 360 of the Laws of 1860 only applies to a testamentary disposition of property, not to contract obligations.</p> <p>4. Where one party induces another to do a lawful act and to incur a liability upon a promise of indemnification, the performance of the act and’the incurring of the liability constitute a good consideration for the promise and render it binding and enforeible.</p> <p>5. A trust in personalty is not within the Statute of Uses and Trusts, and may be created orally or in writing for any purpose not forbidden by law, and this rule applies to trusts in personalty created by will.</p> <p>6. The primary distinction between wills and declarations of trust is that the former take effect in the future upon the death of the testator, while the latter take effect in prcesenti during the life of the settlor.</p> <p>7. In construing declarations of trust,' the intention of the settlor, if not violative of any rule of law, is controlling and must be given effect. It is to be gathered from a consideration, not of the precatory words alone, but of all the provisions of the instrument, in the light of any circumstances shown to have a bearing thereon.</p> <p>8. The intention of the maker of an instrument is controlling upon the question as to whether he intended the instrument as a deed or transfer or as a will.</p> <p>9. If a deed of trust is ambiguous, or is open to either of two constructions, that construction should be adopted which will make the trust valid.</p> <p>10. One cannot be trustee and sole beneficiary of the same identical estate, and where this is attempted a merger of the legal and equitable title results.</p> <p>11. Such a merger, however, does not take place where the interest of the trustee only extends to a portion of the income of the trust fund.</p> <p>12. A bequest to a charitable corporation in form in trust with directions to hold the corpus and use the income in perpetuity for any authorized charitable use, does not create a strict trust or constitute the corporation a trustee or offend against the Statute of Perpetuities.</p> <p>13. It is a general rule that a charitable corporation cannot act as a trustee in a matter in which it has no interest, but where it has an interest either in the principal or income it may act as trustee for another or others having an interest in the whole or part of the income for life.</p> <p>14. Woixte of trust may be implied when necessary and may be disregarded when unnecessary.</p> <p>15. A power of revocation in whole or in part is perfectly consistent with a valid trust, and in such a case the trust continues until, or unless, revoked.</p> <p>16. Where property is disposed of in prmenti by a declaration of trust, so that title is intended to vest before, instead of, as in the case of wills, at the death of the settlor, this constitutes a valid contract, even though possession does not pass until his death, or the enjoyment is contingent on the survivorship of another, and some of the features of the trust look to the distribution of property after the death of the settlor.</p> <p>17. The mere fact that a trustee is willing to execute a trust and that the beneficiaries consent thereto, will not justify witholding property from the heirs or next of kin or legatees or devisees of the settlor if the trust be invalid and incapable of enforcement without such consent.</p> <p>18. If part of the disposition of property under a trust contained in a will be invalid, it does not necessarily follow that the entire disposition or trust fails. If the valid portion of the trust may be separated from the invalid portion and be given effect without disturbing the general scheme and primary purpose of the settlor, the valid portion may be given effect, but if the invalid portion is an essential part of the disposition or trust as an entity and is not separable from the valid portion, the entire trust must fail.</p> <p>19. The law of the domicile of the settlor governs as to the execution and construction of the instrument and his competency to dispose of the property; and hence a disposition in violation of chapter 360 of the Laws of 1860 for a foreign trust as well as for a domestic trust would be void, but the validity of a trust to a foreign corporation would, as regards perpetuities or accumulations, depend on the foreign law.</p> <p>30. Where a trust of personal property would be valid under the law of the domicile of the donor, settlor or devisor, and it is to be administered in a foreign State, the courts of that State will administer it on grounds of comity, unless against public policy or forbidden by law, even though the trust would not be valid under the foreign law.</p> <p>31. Annuities, even though for convenience payable out of the income, may be merely a lien or charge, in which case they are alienable, as at common law; or a strict trust of rents, issues and profits may be created for the payment of annuities for support of a beneficiary, in which case they are inalienable by statute in the State of New York.</p> <p>John H. Wallace, a resident of the city of New York, executed in New York J uly 33, 1903, a will by which he established two trust funds of $13,500 each and five trust funds of $5,000 each, and directed his executors to pay the income thereof to the beneficiaries during their lives with the provision that upon the death of the respective beneficiaries the principal should revert to his residuary estate. He also provided for the payment of $33,000 in legacies, which sum included a legacy of $10,000 to his wife in accordance with an ante-nuptial contract by which she agreed to accept that sum in lieu of dower and her claims upon his personal estate. He then gave his wife his household furniture and effects and canceled the indebtedness of three nephews to him. The remainder of his estate, including his residuary estate, he gave to the trustees of Washington and Jefferson College, an educational institution incorporated under the laws of Pennsylvania and whose college property was located in that State, and to the successors in office of such trustees “for the uses and purposes of such college.”</p> <p>September 5, 1902, Wallace executed a declaration xof trust, the material portions of which were as follows: “I, John H. Wallace, do hereby declare that I have this'day irrevocably appropriated and set aside securities of the value of one hundred and twenty-nine thousand dollars, or more, said securities being now in my possession and being hereinafter more particularly enumerated, and that I hold the same in trust and special confidence for the following uses and purposes and none other, to wit: “First. To pay over upon the First day of October in each and every year during my natural life to said Washington and Jefferson College, upon the receipts of its treasurer, out of the net income arising from said securities, the sum of Eighteen hundred dollars to be applied to the maintenance of said professorship. ‘ Second. To take and apply to my own individual use, during the term of my natural life, all the residue of the net annual income of said securities. “ Third. From and immediately after my decease I hereby constitute and appoint the said Washington and Jefferson College trustee in my room and stead, and direct and empower said College to immediately take and hold said securities as I now hold them in trust to presently pay out of the principal of ” the same as follows: ” Here follow legacies aggregating $32,000, which he had bequeathed in the will, in substantially the same language as that by which they were given under the will.</p> <p>The instrument then further provided as follows: “ After the foregoing Thirty-two thousand dollars have been paid by Washington and Jefferson College, my successor 'in this trust, out of the principal sum of the securities therein embraced, and hereinafter enumerated, the remaining securities shall be held by said college in trust to pay out of the net income annually, counting from the date of my death, the following sums, to wit: ”</p> <p>Then follows a direction to pay each of the seven beneficiaries for whom separate trusts were created in the will a specific sum of money — $550 to each of those for whom a trust of $125 had been created in the will and $250 to each of the others, which, although not stated to be so, equals five per cent on the principal of each of the $5,000 trusts provided for in the will and four and two-fifths per cent on the others, the aggregate of the annuities being $2,350.</p> <p>The instrument then provided as follows: “The balance of the net income of said remaining securities during the lives of said annuitants (and after the death of the survivor of them) all the net income thereof shall be devoted by the said Washington and Jefferson College to perpetually maintain a professorship in Rhetoric and Oratory to be called the Wallace Professorship of Rhetoric and Oratory. * * * “ I hereby reserve to myself during the period of my natural life, and after my decease I hereby authorize and empower my said successor in the trust, to sell any or all of the securities above referred to and to invest and reinvest the proceeds of such sales, as well as the proceeds of any investments that may mature or be redeemed,' in other good interest-bearing securities, according to the best judgment of myself during my lifetime and that of my successor, after my decease. In case any or all of the persons named as beneficiaries in this trust, to whom my successor is to pay money, dies before I do, or if for any reason satisfactory to myself I should desire to do so, I also reserve to myself the right and power by writing duly executed to revoke, change or modify any or all the payments that I have directed to be made to them respectively and to substitute and appoint other person or persons to whom such payment or payments shall be made.”</p> <p>Next followed a list of the trust securities, a statement that they were in lock box in the vault of a safe deposit company in the city of New York separate and apart from any other papers and property, and a delegation of authority to the college to take possession of such securities at his death. The deed of trust was followed by a formal written acceptance thereof by the college authorities.</p> <p>The securities described in the declaration of trust embraced Wallace’s entire estate with the exception of some §5 000 or §10,000.</p> <p>On the day he executed the trust deed, Wallace executed a codicil to his will, by which he revoked every provision of the will except the gift of his household furniture and effects to his'wife, the c ancellation of the indebtedness of his nephews and the clause disposing of the remainder and the residuary estate. He assigned, as a reason for the revocation of the legacies and trusts, that he had “this day by a declaration of trust made present provision for the beneficiaries therein respectively named.”</p> <p>Intermediate the execution of the will and the execution of the declaration of trust, Wallace had several interviews with representatives of the college, in which the plan subsequently embodied in the declaration of trust was agreed upon. After the declaration of trust was executed, the college formally established the Wallace Piofessorship of Rhetoric and Oratory and employed a professor to fill the chair and an additional instructor in connection therewith.</p> <p>Wallace died May 2, 1903, leaving all the beneficiaries mentioned in the declaration of trust surviving him, and without having attempted to exercise the power to revoke, change or modify the provisions made for any of them. Prior to his death, Wallace paid the college $1,800 pursuant to the terms of the declaration of trust and attended a college celebration at which his endowment of the chair was publicly announced.</p> <p>In an action to have the declaration of trust and certain provisions of the will declared void and to have it adjudged that the decedent died intestate as to about one-half of his estate, it was</p> <p>32. Held, that the college having incurred financial obligations which it could not repudiate, and having become committed to a plan and policy which it could not abandon without jeopardizing its prestige, on the faith of Wallace’s agreement that it should receive the securities at his death subject to the specified charges, it was entitled to receive such securities regardless of whether there was a valid gift inter vivos or a valid declaration of trust or whether the provision for the annuities constituted a strict statutory trust, or, if so, whether it was valid;</p> <p>23. That if the right of the college to the securities was sustained upon the above theory, it would be estopped from contesting the validity of the charges, including the annuities imposed upon such securities:</p> <p>24. That the declaration of trust was, however, effective to transfer to the college the title to the securities mentioned therein upon Wallace’s death, even though such declaration of trust might be deemed to create an invalid trust for the annuitants;</p> <p>25. That if Wallace intended the declaration of trust as a testamentary disposition to take effect only upon his death, and adopted the form of a declaration of trust for the purpose of evading the Statute of Wills or the provisions of chapter 860 of the Laws of 1860, the declaration of trust would doubtless be void, because it was not executed as a will, but that, if such declaration of trust was intended in good faith as a present disposition of Wallace’s property, such declaration of trust was valid;</p> <p>26. That a consideration of the language of the codicil and of the language of the declaration of trust, in the light of the prior parol agreement and of the transactions with respect to the securities, established that it was Wallace’s intention to make, by such declaration of trust, a present disposition of the securities in question, he retaining the possession as trustee during his life, and not to evade the Statute of Wills or chapter 360 of the Laws of 1860;</p> <p>27. That the fact that Wallace reserved a beneficial interest for his life in the income of a portion of the trust securities; that he constituted himself the trustee of the securities during his lifetime, and that he reserved to himself the right to change the beneficiaries other than the college or to revoke the declaration of trust as to such other beneficiaries, did not render the declaration of trust invalid;</p> <p>28. That the college took the securities as owner and not as trustee, notwithstanding that it was characterized in the declaration of trust as a trustee;</p> <p>29. That the provision for the beneficiaries other than the college did not constitute a testamentary disposition, but that the college took the securities in question subject to the payment of the specified beneficiaries;</p> <p>30. That, assuming that the declaration of trust should be deemed to create an invalid trust for the annuitants, this would not render it void as to the college, as the invalid trusts were not an essential portion of Wallace’s primary and principal purpose, viz., to endow the college;</p> <p>31. That if this were the proper construction of the declaration of trust, the college would be estopped from asserting the invalidity of the trust for the annuitants;</p> <p>32. That if the declaration of trust created a strict statutory trust for the annuitants, which was not severable and would be void under the New York statute on account of suspending the power of alienation of part of the income during the lives of the several annuitants, its validity in that respect was to be determined by the laws of Pennsylvania, and that, under the law of that State, the trusts were not invalid;</p> <p>33. That at common law annnuities were a charge simply upon the estate and upon rents and profits and were alienable, and that as no statute of Pennsylvania had been proved prohibiting the alienation of annuities, it would be presumed that the common law prevailed in that State;</p> <p>34. That even if the law of New York governed in respect to the question whether the declaration of trust created a strict statutory trust as to the annuitants and its validity, the declaration of trust would still be valid and enforcible as to the annuitants, as no strict statutory trust was created for the benefit of the annuitants, but such annuities were intended as a mere lien or charge upon the income of the securities and were alienable under the laws of the State of New York;</p> <p>35 That even if a strict statutory trust was created for the benefit of the annuitants, and even if such annuities were not assignable, the trust could be sustained upon the theory that, although the securities constituting the trust fund were not severed or severable, yet that the trusts were severable as to the interests of the respective annuitants so that there would be a suspension of the power of alienation of that part of the income accruing to each annuitant only during his life, which would not be a violation of the statute.</p> <p>36. Semble, that Wallace could have made a voluntary settlement of these securities on the college on condition that it should pay him the surplus income over §1,800 a year during his life and pay the other beneficiaries at, and after, his death, making the amount payable to them charges or liens upon the securities without offending against either chapter 360 of the Laws of 1860 or the statutes regulating the testamentary or other dispositions of property. Such a trust would be irrevocable unless power of revocation was, by its terms, reserved.</p>

<p>Death benefit from'the New York fire department life insurance fund — the widow of an employee whose position is abolished and who dies three weeks subsequently thereto is not entitled, to the benefit—-he is not at his death “ in the service” of the department.</p> <p>Under section 792 of the revised charter of the city of New York (Laws of 1901, chap. 466) relating to the fire department life insurance fund, which provides, “ In case of the death of any * * 9 employe of said department in the service thereof who has availed himself of this provision 9 9 9 and so contributing, there shall be paid to the widow 9 9 9 the sum of one thousand dollars,” the benefit of §1,000 cannot be recovered by the widow of a person who entered the employ of the fire department on January 16, 1884, availed himself of the privilege of membership in the life insurance fund and continuously remained in the employ of the department until May 7, 1903, upon which date the position which he then held was abolished, and who died on May 38, 1903, without having been reinstated.</p> <p>It is a condition of the widow’s right of recovery that the employee shall be in the service of the department at the time of his death.</p> <p>The person in question cannot be said to have been in the service of the department at the time of his death by virtue of section 1543 of the revised Greater Hew York charter, which provides that when a position is abolished or becomes unnecessary, "the person or persons legally holding the office or filling the position or employment thus abolished or made unnecessary shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, or in any corresponding or similar-office, position or employment if within one year thereafter there is need for his or their services.”</p>

<p>Rule that an attorney in an action by his client must show that the transaction was fair — it is not applicable to an action for damages for negligence in investing money.</p> <p>The rule that, in respect to any transaction between an attorney and client, the attorney is bound to establish the fact that the transaction was fair and honest, applies only to'contracts and transactions between an attorney and client whereby the attorney obtained some property or property rights from his client.</p> <p>It has no application in an action, brought by a client against his attorney, to recover damages resulting from the alleged negligence of the attorney in failing to exercise ordinary care and skill as an attorney in investing money for the client.</p>

<p>Bankruptcy — what constitutes insolvency — what is a preferential payment in violation of the Bankruptcy Law — what proof is competent in respect thereto — effect of an attorney giving Ms own check for the indebtedness of the alleged bankrupt — fractions of a day taken cognizance of.</p> <p>Under section 1 and subdivisions a and b of section 60 of the Bankruptcy Law a person is not insolvent within the meaning of that act merely because he is unable to pay his obligations as they mature or because actions are pending against him owing to his inability to make present payment of his indebtedness, and such facts if known to a creditor would not, as a matter of law, constitute reasonable cause for believing- that a preference was intended in the case of a payment by a debtor in such circumstances.</p> <p>In an action by a trustee in bankruptcy to recover an alleged preferential payment made by the bankrupt, it is essential for him to show actual insolvency on the part of the bankrupt at the time of the payment, and that the creditor knew or had reasonable cause for believing, acting as a reasonably prudent man, that a preference was intended, but it is not necessary for him to show fraud or an intent on the part of the bankrupt to make a preferential payment.</p> <p>Where a firm of attorneys deliver to a bank, in payment of a client’s note held by the bank and then surrendered to the attorneys, a check drawn by the attorneys on their individual account, at a time when the attorneys do not hold sufficient of the client’s funds to pay the check, the client’s indebtedness to the bank on the note becomes canceled upon the delivery of such check and note, notwithstanding that the bank agreed at the request of the attorneys, which was not, however, made a condition of the delivery of the check, to refrain from collecting the check for a day or so.</p> <p>It is doubtful whether such a transaction operates as a transfer of property from the client to the bank within the meaning of the Bankruptcy Law.</p> <p>The court will take cognizance of fractions of a day in determining whether a bankrupt was insolvent when he made an alleged preferential transfer of his property to a creditor.</p> <p>In an action brought by a trustee in bankruptcy to set aside an alleged preferential transfer to one of the bankrupt’s creditors, the creditor is entitled to show all information communicated to it and all knowledge possessed by it indicating the bankrupt’s solvency at the time the transfer was made.</p> <p>When, in such an action, the questions whether the bankrupt was solvent at the time the transfer was made, and whether the creditor had reasonable cause for believing that he was then solvent are questions of fact which should be submitted to the jury, considered.</p>

<p>Serving notice of protest of a promissoi'y note — what does not establish it — what is essential to personal service.</p> <p>In an action brought to recover upon a promissory note indorsed by the defendant, the American Hotel Victoria Company, the plaintiff called a witness who testified that he served a notice of protest addressed, “ To American Hotel Victoria Co., S. B. A. Price, Prest.,” upon the defendant at the Victoria Hotel, Broadway and Twenty-seventh street, by leaving it “ at the cashier’s window. ’ He did not show that the cashier or any one else was present or that he drew the attention of any one thereto, or that he made any effort to find any officer of the defendant or any one in charge of the hotel to whom to deliver it.</p> <p>The defendant called its president, who testified that he had held that office from a date prior to the time when the notice of protest was alleged to have been served down to the time of the trial, and that during this period he had had charge of the management of the defendant’s hotel; that he did not see or receive any notice of the protest or dishonor of the note, and that the first he knew of the existence of the note or heard of it was when he received a letter from attorneys stating that they had the note for collection.</p> <p>Held, that the evidence was wholly insufficient to show the service of the notice of protest upon the defendant;</p> <p>That, under sections 160, 167 and 168 of the Negotiable Instruments Law (Laws of 1897, chap. 613), where a personal service of a notice of protest is relied upon, the evidence must show either actual personal service or an ordinarily intelligent, diligent effort to make personal service upon the indorser either at his place of business during business hours, or at his residence if he have no place of business; but if he be absent, it is not necessary to call a second time, and the notice may, in that event, be left with any one found in charge, or if there be no one in charge, or no one there, then the giving of notice is deemed to be waived;</p> <p>That the evidence in the case at bar did not show that personal service was made upon any officer or agent of the corporation, or even create an inference that such notice was received by the corporation.</p>

Appeal by the plaintiffs, Joseph Ward, Jr., and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the o’ftiee of the clerk of the county of Hew York on the 17th day of October, 1904, as resettled by an order entered in said clerk’s office on the 16th day of .December, 1904, denying the plaintiffs’ motion to strike the cause from the calendar of the Special Term.

<p>Appeal by the plaintiff, J. H. Lane & Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of February, 1905, vacating an attachment theretofore issued against the defendant, a foreign corporation.</p>

Appeal by the defendant, Janies G. Emmons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30tli day of June, 1904, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the defendant, the Forty-second Street, Manhattan-ville and Sir.

<p>Appeal by the defendant, the Musical Courier Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of December, 1904, requiring the defendant to serve a further bill of particulars relating to the counterclaim set up in its answer.</p>

<p>Appeal by the defendant, Francis Y. Greene, as police commissioner of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1905, directing the defendant to make and file a further return to a writ of certiorari.</p>

Appeal by Sigmund Feuchtwanger from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of January, 1905, requiring him to pay a sum of money for rent to a receiver in foreclosure proceedings, or in default thereof to be adjudged guilty of contempt.

Appeal by the defendant, James G-. Emmons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 30th day of June 1904, upon the decision of the court rendered after a trial before the court without a jury at the Hew York Trial Term.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of May, 1904, upon the verdict of a jury for $3,150, and also from an order entered in said clerk’s office on the 11th day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Horace L. Dyer, as trustee in bankruptcy of Michael R. Brown, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 9th day of May, 1904, affirming a judgment of the City Court of the city of Hew York in favor of the defendants, entered in the office of the clerk of said City Court on the 1st day of August, 1903, upon the decision of the court dismissing the plaintiff’s…

<p>Appeal by the defendants, diaries P. Kelly and others, as the Board of Trustees of the United States Letter Carriers’ Mutual Benefit Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of November, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 17th day of November, 1904, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Sarah Abel, as administratrix, etc., of Henry O. Abel, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of July, 1903, confirming the report of a referee.

<p>Costs — a retaxation of, may be ordered twelve days after the entry of judgment and after an appeal therefrom and an undertaking have been served by the moving party.</p> <p>Under section 3264 of the Code of Civil Procedure, which provides, “the court may, in its discretion, upon the application of a party interested, direct a retaxation of costs at any time,” a defendant who, twelve days after the entry of a judgment against him, makes a motion for a retaxation of the costs included in said judgment, is entitled to have the motion considered upon the merits, notwithstanding that during the interval he has taken an appeal from the judgment and served an undertaking on such appeal.</p>

Appeal by the defendant, George Irving, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of December, 1904, directing that an execution issue against the income of the defendant, a judgment debtor, received from or under a trust created by the will of Washington Irving, Jr., deceased.

<p>Yerme—meaning of word “resided ” in section 984 of the Code of Givil Procedure.</p> <p>The word ‘"resided,” as used in section 984 of the Code of Civil Procedure, providing that certain actions shall be tried in the county in which one of the parties "‘resided” at the time of its commencement, means a permanent residence, one’s home, as distinguished from a mere stopping place for the transaction of either business or pleasure. It is nearly or quite synonymous with the word “ domicile,” the permanent home and the place to which, whenever absent, one intends to return.</p> <p>The fact that a person, whose home establishment is in Wayne county and who votes, pays taxes and serves as a juror therein, also has apartments at a hotel in the city of New York which he occupies while in that city and has an office in such city for the transaction of business, does not constitute him a resident of the city of New York within the meaning of section 984 of the Code of Civil Procedure.</p>

Appeal by the defendants, Edward S. Hatch and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New.York on the 2d day of March, 1905, enjoining the said defendants from asserting any claim to a certain fund.

Appeal by the plaintiffs, Gustav Amsinck and others, composing the firm of, G. Amsinck & Co., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 2d day of May, 1904, upon the report of a referee dismissing, upon the merits, the amended complaint as amended by an amendment allowed upon the trial.

Appeal by the defendant, Charles L. Hammond, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of May, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, granting a separation, awarding the custody of three minor children to the plaintiff and one minor child to the defendant, and awarding the plaintiff alimony.

Appeal by the defendants, Abner T. Bowen. and others, from a final judgment of the Supreme Court in favor of the plaintiff and the defendant Alwin Eisert, entered in the office of the clerk of the county of ¡New York on the 20th day of April, 1904, confirming the report of a referee, which final judgment was made pursuant to an interlocutory judgment entered in said clerk’s office on the. 28d day of June, 1902, upon the decision of the court, which among other things…

Appeal by the plaintiff, The Consolidated Fruit Jar Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of June, 1901, upon the report of a referee.

Appeal by John Walsh, as executor, etc., of Rose T. Mosher, deceased, from a judgment of the Supreme Court in favor of Elizabeth Sarles, entered in the office of the clerk of the county of Hew York on the 29th day of July, 1904, upon the report of a referee.

Appeal by the defendant, Richard H. Wright, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of June, 1904, upon the report of a referee.

<p>Appeal by the plaintiff, The Insurance Press, from a judgment of the Supreme Court in favor of the defendants, Montauk Fire Detecting Wire Company and another, entered in the office of the clerk of the county of New York on the 9th day of November, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendants’ demurrer to the plaintiff’s complaint and dismissing the said complaint.</p>

<p>Implied warranty — when it exists — when it does not survive the acceptance of goods manufactured — the vendee must return the articles — when a return is excused — latent defects, when they excuse delay and when a failure to return the articles — in the case of an express contract they need not he returned.</p> <p>In an executory contract for the manufacture and sale of merchandise there is an implied agreement that the articles manufactured shall be of a character and quality suitable for the use to which they are to be put.</p> <p>Where articles of a particular description are agreed to be manufactured or sold, and the articles are not of the kind specifically described, a retention of them after the defect can with reasonable diligence be discovered, is a waiver of the defect, and no cause of action survives the acceptance and retention of the articles so manufactured, sold and delivered.</p> <p>Where the vendee, in a contract for the manufacture and sale of a quantity of brass steam coils, accepts the coils when delivered by the vendor, such acceptance precludes him from subsequently insisting that the coils were not such as he had ordered.</p> <p>If, however, the vendee subsequently discovers the presence in the coils of latent defects, which an inspection would not disclose and of which the vendor either had or would be presumed to have had knowledge, the vendee is entitled to return the coils to the vendor.</p> <p>If, after discovering the latent defects, he neglects to return or offer to return the coils, he cannot, in an action brought by the vendor to recover the purchase price of the coils, set up the existence of the defects as a defense or counterclaim thereto.</p> <p>Semble, that a return or offer to return under such circumstances is only excused where the latent defects in the goods can only be discovered by using the goods, which use operates to render a return of the goods impossible.</p> <p>Where, however, there is an express warranty of quality, there the vendee has a right to retain the articles and offset or counterclaim the damages caused by a breach thereof.</p> <p>Van Brunt, P. J., and Laughlin, J., dissented.</p>

<p>Warrant of attachment—it cannot be questioned collaterally where the court had jurisdiction—erroneous recital of the grounds therefor is a mere irregula/rity — levy on firm property where the attachment is against but two of three members of the firm — what court mhy grant leave to sue in aid of an attachment — an order substituting a party cannot be reviewed as an intermediate order on an appeal from the final judgment.</p> <p>A warrant of attachment, issued upon affidavits sufficient to give the justice who issued it jurisdiction to do so, cannot be questioned collaterally, but only by a direct attack.</p> <p>The fact that the grounds of a warrant of attachment as recited in such warrant are stated in the alternative, to wit, that the defendants “have removed, or are about to remove, property from this State with intent to defraud their creditors, or have assigned, disposed of or secreted, or are about to assign, dispose of or secrete their property with intent to defraud their creditors,” does not render the attachment void, but is a mere irregularity, which does not affect the validity of a warrant until it is vacated because thereof.</p> <p>The fact that, in an action brought against the members of a firm upon a firm obligation, an attachment is obtained against but two of the three partners sued, will not prevent the sheriff from levying under the attachment upon the copartnership property.</p> <p>The leave of the court which is made necessary by section 677 of the Code of Civil Procedure for the bringing of an action in aid of an attachment, refers to the court in which the action is brought and not to the court of which the officer who issued the attachment is a member.</p> <p>Thus, where the attachment is issued by a justice of the City Court of the city of New York and the action in aid of the attachment is brought in the Court of Common Pleas of the city and county of New York the necessary leave to commence the action is properly obtained from the latter court.</p> <p>An order substituting the assignee of a cause of action as plaintiff in the action in place of the original plaintiff, is not such an intermediate order as may be reviewed under section 1316 of the Code of Civil Procedure by speqifying it in a notice of appeal from a Anal judgment rendered in favor of the substituted plaintiff.</p>

Cross-appeals by The City of New York and by Charles D. Dickey and another, individually and as executors, etc., of Charles D. Dickey, deceased,' from portions of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of May, 1902.

Cross-appeals by the petitioners, Merced D. M.. Greene and another, and by George Leask and another, as executors, etc., of Harriot Erving, deceased, from portions of an order of tlie Surrogate’ Court of the county of New York, bearing date the 10th day of October, 1904, and entered in said Surrogate’s Court, directing the payment of a balance due on certain legacies.

Appeal by the plaintiffs, Peter Graber and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of December, 1904, directing the clerk of the county of Hew York to cancel and discharge of record a judgment duly entered in the above-entitled action.

Appeal by the 'defendants, John Rheinfrank, Jr., and all the other defendants except John Rheinfrank, who died after the joinder of issue and against whose estate the action has not been revived, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of Kew York on the 10th day of February, 1905, denying in part the said defendants’ motion to vacate an order for the examination of the defendants Shede and…

<p>Compensation of a committee of the property of an incompetent — when the committee is not bound to convert securities into cash, in order that his commissions be allowable thereon — his duty in respect to holding them.</p> <p>Under section 3388 of the Code of Civil Procedure, the committee of the property of an incompetent person is entitled to be compensated at the same rate as an executor or administrator, for receiving and holding property which it does not become his duty to convert into cash; such compensation is not to be made upon the theory that these are extra services in addition to those which would be required to be performed by an executor or administrator and for which the court may make a special allowance, but upon the theory that they correspond, within the fair intent and meaning of section 3338 of the Code of Civil Procedure, with the services of an executor or administrator in converting property into cash.</p> <p>Where the committee of an incompetent comes into possession of securities which constitute a good investment and the principal is not presently needed for use, it is not the duty of the committee to convert the securities into cash but to hold them as an investment. It might even occur that it would be the duty of the committee to hold securities and turn them over at the termination of their trust without having converted them into money.</p>

<p>Will — suspension of the power of alienation — will construed to create separate trusts for a number of nephews and nieces— the words “ in trust,” where no trust is created, construed to create a "power” — ichai trusts, created to talce effect after the death of life beneficiaries without issue, are invalid — when such, invalidity does not make void other provisions of the will.</p> <p>David Stewart Denison, who was survived by a widow, a brother, John M. Denison, a sister, Mary L. Bussell, and the children of a deceased sister, left a will by which he directed his executors to set apart so much of his estate (which proved to be the whole thereof) as would be sufficient to provide an annuity of $10,000 for his wife during her lifetime.</p> <p>He then gave his residuary estate to his brother, John M. Denison, and his sister, Mary L. Russell, and the survivor of them, “and the heirs, executors, administrators and assigns of such survivor," in trust for the usé and benefit of the children of said brother and sister living at the time of his decease, and the issue then living of any deceased child or children of either the brother or sister, and provided that the children of the said brother and sister who survived him should take per capita and that the children of any deceased child of such brother and sister were to take the share to which their parent would have been entitled if living.</p> <p>The will directed the trustees, as soon after the testator’s death as practicable, to divide the residuary estate into shares or portions and to hold the shares so set apart for the “ respective ” use and benefit of the said children or descendants of the testator’s said brother and sister during the term of their “ respective” lives and from and after their “respective’ deaths to hold the share of the deceased life beneficiary, “in trust for his, her or their child or children, and the issue, if any, of his, her or their deceased child or children who shall be living at the time of his, her or their decease respectively his, her or their executors, administrators and assigns, if more than one, as tenants in common, but so that the issue of any deceased child, children or descendants of my said brother and sister shall take per stirpes only the part or share or respective parts or shares to which said deceased child, children or descendants would, if then living, have been entitled.”</p> <p>The will further provided that if any child or descendant of either the testator’s brother or sister, to whom a share or portion had been limited for life, should die without leaving a child or children or the issue of a deceased child, then the share of the child so dying should be held in trust for each of the surviving nephews, nieces or grandnephews and grandnieces, as the case might be, to whom a portion of the estate had been limited for - life, to be held in the same manner in all respects as his, or her, or their original part or share was limited in trust.</p> <p>In an action brought to obtain a judicial construction of the will it was</p> <p>Held, that it was the testator’s intention to establish as many separate life estates as there should be nephews and nieces or children of deceased nephews and nieces living at his death and who were children or descendants of the testator’s brother John’and his sister Mary;</p> <p>That this being the case, the provision for the benefit of the children and grandchildren of John M. Denison and Mary L. Russell living at the time of the testator’s death did not suspend the power of alienation of any portion of the residuary estate for more than a single life;</p> <p>That the provision of the will providing for the disposition of the share held for any life beneficiary upon his or her death leaving issue did not, although the testator used the words “in trust,” set up any new trust in such share, but at most created only a trust for distribution, which, while not technically a trust at all, was valid as a power;</p> <p>That it was the testator’s intention that, in the event of the death of a life beneficiary leaving children or descendants, the share which had been held in trust for the decedent should pass to and vest in his or her issue, the sole duty imposed upon the trustees in such case being that of paying over the trust property;</p> <p>That the provision of the will by which the testator undertook to dispose of the share of a life beneficiary, who might die without leaving children or descendants, by dividing the decedent’s share among the other shares as to which the trusts for the life beneficiaries still existed, to be held upon the same trusts as those shares, was invalid;</p> <p>That such invalidity did not, however, render it necessary to reject the entire residuary clause;</p> <p>That the invalid provision could be cut off without destroying the general scheme of the will or defeating the primary and controlling intent of the testator, to wit, that his residuary estate should go to the children and descendants of his brother John and sister Mary to the exclusion of the children and descendants of his deceased sister;</p> <p>That the will should consequently be construed to contain a valid devise of the residuary estate to John M. Denison and Mary L. Russell to be held upon separate trusts for each one of their children or issue of deceased children living at the death of the testator, subject to the annuity provided for the widow, with remainder in fee to the issue of any life beneficiary who might die leaving children or descendants, with distribution as in case of intestacy of the share of any life beneficiary dying without issue.</p>

Appeal by The City of New York from an order of the Supreme Court, made at the New Y orle Special Term and entered in the office of the clerk of the county of New York on the 24th day of Febiuary, 1905, granting an allowance to property owners in a proceeding to acquire title to lands in the city of Hew York, borough of The Bronx.

Appeal by the defendants, Augusta C. A. Sigafus and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Hew York on the 13th day of April, 1904, upon the verdict of a jury, and also from separate orders entered in said clerk’s office on the 28th day of April, 1904, denying respectively the said defendants’ respective motions for a new trial made upon the minutes.

Appeal by the plaintiff, W. & J. Sloane, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of February, 1905, vacating and setting aside an order theretofore entered in the action under which special execution was issued.

<p>Appeal by the defendants, Frank L. Dodgsbn and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 21st day of October, 1904, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint.</p>

<p>Appeal by the defendants, Mary 0. Leary, as administratrix, etc., of James D. Leary, deceased, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of March, 1903, upon the verdict of a jury, rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 31st day of March, 1903, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Robert Weld, from á judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 6th day of April, 1904, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review upon such appeal three intermediate orders, the first, entered in said clerk’s office on the 12th day of November, 1903, appointing a receiver and…

<p>Mechanic’s lien — measure of damages recoverable under a counterclaim for certain material not furnished by a contractor, the plaintiff—loss of rental value and deterioration a/re not the measure of damages — a description in the notice of lien of an entire tract, on a part of which the building is put, does not render it invalid — absence of separate claims for labor and materials — the work done and to be done must be separately .stated — what is a sufficiently separate statement of its value — effect of taking the owner’s note — a violation of a provision “payments to be made as the work progresses ” constitutes a breach —failure to complete the work — what costs may be allowed.</p> <p>Where parties make a contract, with the owner of a building in process of erection, to furnish shingles for use in the construction thereof, the measure of damages which the owner is entitled to recover on account of the contractor’s failure to furnish the shingles is the difference between the contract price of the shingles and the market price at which they could have been obtained at the time and place of delivery.</p> <p>The owner is not entitled to recover from the contractor for loss of the rental value of the house and for deterioration therein, which he claims resulted from the failure of the contractor to deliver the shingles. ■</p> <p>Where the owner of a tract of land, which, on paper at least, had been subdivided into three parcels, proceeds to construct a single house on one of the subdivisions and a double house on another subdivision, the fact that a contractor, who performed work and furnished materials in connection with both of the houses, flies a notice of lien against the entire tract describing it as a single parcel, does not render the lien invalid, where it does not appear that there was any separate contract for furnishing material to be used on the different lots or that the owner of the tract held title to the separate subdivisions by virtue of separate conveyances or by virtue of separate descriptions or that such separate subdivisions did not, in fact, constitute but a single parcel.</p> <p>Where, although a notice of mechanic’s lien, in its preliminary statement, embraces a claim for labor, it is manifest that the claimant’s lien is for materials furnished, and that no separate claim for labor was intended apart from that involved in the delivery of the materials, it is not essential to the validity of the notice of lien that it shall separately state the value of the labor and the value of the materials.</p> <p>The Lien Law only requires that the amount claimed for labor and materials performed and furnished shall be stated separate from the amount claimed for labor and materials to be performed and furnished.</p> <p>The fact that a materialman, after his claim has become due and payable, takes the owner’s note due in thirty days for the amount of his claim, and executes a written agreement to extend the time of payment for one-half the amount of the note for another month if necessary, which extension of two months would expire before the statutory time allowed the materialman in which to file a notice of mechanic’s lien, does not render invalid a notice of mechanic’s lien filed by him prior to the maturity of the note.</p> <p>A notice of lien which states that the lien is for labor performed and to be performed, and materials furnished and to be furnished in covering the roofs of two houses at the agreed price and value of §940, and which specifies that labor and materials of the value of §500 had been performed and furnished, and that tbe amount unpaid was the contract price of §940, is not invalid, for the reason that it does not specifically state the value of the labor and materials remaining to be performed and furnished, as the fact that such value is the sum of §440 may be learned by a mere mathematical calculation from the data given in the notice.</p> <p>Where a contract to perform certain specified work on buildings in the process of erection for the sum of §940 provides, “Payments to be made as the work progresses,” the refusal of the owner, after the contractor has performed work under the contract of the value of §450, to accede to the contractor’s demand for a partial payment on account constitutes a breach of contract on the part of the owner and excuses the contractor from proceeding further with the work.</p> <p>In an action brought to foreclose several mechanics’ liens filed by different persons it is improper to allow the owner separate bills of costs against unsuccessful lienors who filed separate liens; in such a case only one bill of costs can be • allowed to one party.</p>

<p>Heplevin by a vendor to recover property because of non-performance■ of the conditions of sale—where title passes to the vendee replevin does not lie against its successor in title—the value where the property has been delivered to the plaintiff must be faced as of the date of trial — what exception is sufficient.</p> <p>Where a corporation, having the legal title to and the possession of personal property sold and unconditionally delivered to it, sells such property to another corporation, a receiver of the property of the original vendor appointed in proceedings supplementary to execution cannot maintain an action to replevin the property, upon the theory that title did not pass from the original vendor, because the conditions upon which the sale was made were not performed. The receiver’s remedy, if any, is by a suit in equity for the rescission of the original contract of sale, to the end that the legal title may be restored to the judgment debtor.</p> <p>Upon the trial of an action in replevin it is improper for the court, when ordering a judgment in favor of the defendant for the value of the property, to determine such value in accordance with an affidavit made by the plaintiff in the action two years and three months prior to the time of the trial, for the reason that section 1726 of the Code of Civil Procedure requires that such value shall be determined as of the date of the trial.</p> <p>An exception to the direction of a verdict sufficiently raises the question.</p>

Appeal by the defendant, Bernard M. Baruch, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of June, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 15th day of June, 1904, denying he defendant’s motion for a new trial upon the minutes.

Appeal by the defendants, Joseph Ramsay Barry and others, as copartners, doing business under the firm name and style of J. Ramsay Barry & Co., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of July, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of July, 1904, denying the defendants’ motion for a new trial made upon the…

<p>Appeal by the defendant, Pine E. Bush, from a portion of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20tli day of February, 1905, framing the issues to be tried by a jury.</p>

Appeal by the defendant, Peter R. Dreyer, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 17th day of February, 1905, as directs the clerk to retax the costs awarded to the defendant so as to disallow certain items therein.