Volume 111 — New York Reports

These are cross appeals from a judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made at the October Term, 1887, which affirmed a judgment entered upon a decision of the court on trial at General Term.

(Deported below, 45 Huny 354.) John McGraw, a resident of Ithaca, died May 4, 1877, leaving his only child and heir, Jennie McGraw, who on the 14th day of July, 1880, intermarried with Willard Fiske, and died September 30, 1881, without issue, leaving her husband surviving her.

The nature of the action and the facts alleged in the complaint are substantially set forth in the opinion. The legislature has power to act upon the subject of railway fares; nothing but a binding contract can preclude such action. (Chicago, B. & Q. R. R. Co. v. Iowa, 94 U. S. 155.) A contract, whether between natural.persons or corporate bodies, valid at the time it was made; continues valid and binding, notwithstanding any state legislation, until its full performance.

(Reported below, 39 Hun, 204.) This was an action for libel and slander. . . The defendants are husband and wife. Mr. Collins is sued by reason of that relationship only.

(Reported below, 48 Hun, 21.) Martin Fichen, senior, devised his real estate to Sophia, his wife, in trust for the enjoyment of herself and his children during her fife, remainder to his children, but in case they died without issue before his wife, then to his brothers- and sisters. He died in 1853, seized in fee of certain premises in the city of Hew Yorh, and leaving Sophia, his wife, and one child, Martin Fichen, surviving.

defendants entered upon an order sustaining a demurrer to the complaint. This was an action for the partition of lands in the city of ¡New York, formerly owned by Margaret YanBrunt, deceased, and disposed of under the residuary clause in her will. All the children of the testatrix, with their husbands and wives, were made parties to the action.

Stewart, deceased, defendant’s testatrix, through the fall of an elevator therein. Pending the appeal to this court the defendant died and the action was revived and continued against her executors. The case is reported on a former appeal to this court in 100 ¡New York, 516. The master is not required to use the latest or the best appliance.

<p>R., plaintiff’s intestate, was riding on a public highway with her husband, who was driving. In attempting to cross defendant’s tracks at a crossing they were both killed by a collision with a passing train.' In an action to recover damages, it appeared that at this crossing, in the absence of obstructions, a train upon the freight track, which came first, or upon the passenger track which was seventy feet distant from the freight 'track, was visible for a distance of one* or two miles. In approaching the freight track the husband stopped his horse when a hundred or more yards away and then- again within fifteen yards of the crossing on account of the passage of a freight train. As soon as it had passed he crossed the freight track, and, in an endeavor to cross the passenger track, the collision occurred. There was no proof as to the manner of the accident except that the horse was seen jumping to get across and did, in fact, escape. The plaintiff was nonsuited. Meld, error; that if the husband was negligent, his negligence could not be imputed to the wife; that while she had no rigHt, because her husband was driving, to omit reasonable and prudent effort to see for herself that the crossing was safe, she was not bound to suspect a purpose on the part of her husband to cross until she saw it being executed; that the presumption was they both saw the approaching train, and she was not blamable in thinking and expecting he would stop again; that when she saw he was about to make the attempt to cross, as they must have been then very close to the track, she was not bound to jump from the wagon, seize the reins or interfere with the driver; that even if she did not entreat him to stop, but sat silent, it does not follow, as matter of law, that she was negligent, as she might not have had time or might have been paralyzed from fright, and the question was one of fact for a jury.</p> <p>The degree of care to be exercised in order to avoid the charge of negligence varies with the circumstances and theemergencies..</p>

(Beported below, 14 Hun, 206.) This action was brought by plaintiffs, who claimed, as purchasers of real estate, of which William P. Johnson died seized, to restrain defendant, as executrix of the will of said Johnson, from selling said real estate to pay debts and legacies. Said testator died June 21, 1871, leaving a will, which, with various codicils, were admitted to probate June 28, 1871. The material provisions of the will are as follows: “ First.

The nature of the action and the facts, so far as material, are set forth in the opinion. The testator was not, at the time the will was executed, of sufficiently sound mind and memory to render it valid. (Clark v. Clark, 1 Paige, 171; Delafield v. Parish, 25 N. Y. 25-105; Forman v. Smith, 7 Lans. 443; Dumond v. Kiff, Id. 465, 467; Van Guysling v. Van Kuren, 35 N. Y. 70; Kinne v, Johnson, 60 Barb. 69.) The testimony of the family physicians was competent.

<p>The fact that one of several testamentary trustees is one of the beneficiaries under the trust does not incapacitate him from acting as trustee. He can act freely as to the other beneficiaries and, as to himself, his co-trustees can exercise the control and judgment improper for him.</p> <p>In case the other trustees decline to act, the court may either supply their place or take upon itself the execution of the trust so far as it ought not to be executed by said trustee and beneficiary.</p> <p>The will of R. nominated his wife as executrix and four others as executors. It gave his estate to the executrix and executors in trust, to invest and pay to his wife during life, or until she should marry, so much of the income as might be necessary for the comfortable support of herself and the testator’s mother, and the maintenance and education of the testator’s children. In case the whole of such income should be insufficient for . the purposes specified, the will authorized said trustees “ to apply to that purpose so much of the principal sum invested as may be necessary to make up the deficiency.” The testator left but little personal estate, and resort to the real estate became necessary to carry out the purposes of the trust. Held, that the trustees had power, under and pursuant to orders of the court directing it, to borrow money for such purposes, and to mortgage the real estate to secure the same; that the court had power to make the orders and that, therefore, mortgages so executed were valid.</p>

Appeals from judgment oijthe General Term of the Supreme Court in the second judicial department, entered upon an ordered made February 10, 1886, which affirmed a decree of the surrogate of Westchester county for the probate of a paper purporting to be the will of Eva J. Banks, deceased. The proceedings were instituted upon the petition of Cyrus W. Loder, one of the executors named in the will; this was dated May 15, 1877.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 22, 1886, which affirmed a judgment in favor ■of plaintiff, entered upon the report of a referee.</p> <p>This action was brought by plaintiff, as executor of Caroline C. Fillmore, deceased, to recover possession of a quantity of ■ personal property owned by Millard Fillmore, the former husband of the testatrix, at the time of his decease.</p> <p>The property in question consisted principally of the library ■of the said Fillmore, maps and rack, a quantity of silverware, kept in a white tin box in a safe, a quantity of wine, and a number of trunks</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Ante-nuptial contracts, intended to regulate the interest which each of the parties to the marriage shall take in the property of the other during coverture or after ■death, are favored by the courts. (Johnston v. Spicer 107 N. Y. 185; Throop Grain Cleaning Co. v. Smith, 16 N. Y. S. R. 821, 833.) The plaintiff, in order to establish his title "to the property in question, under the provisions of the sixth ■clause of the ante-nuptial contract, was.bound to show that the same was “ in use by the parties for family purposes at the time of the death of Mr. Fillmore. (Sheldon v. Sheldon, 51 N. Y. 354; Wedgman v. Childs, 41 id. 159; Matthews v. Coe, 49 id. 57; S. C., 70 id. 239, 246; Sickels v. Flanagan, 79 id. 224.)</p> <p>The silver marked with the initials of Mr. Fillmore’s first wife and of his daughter was his property at the time of his marriage with the testatrix without administration. (Vallance v. Bausch, 28 Barb. 633; Burke v., Valentine, 52 id. 412; Watson v. Bonny, 2 Sandf. 405.) As to all the other property, a fair construction of the marriage settlement requires that it should be held to have become Mrs. Fillmore’s upon Mr. Fillmore’s death. (Pierce v. Pierce, 71 N. Y. 154.) Marriage articles are considered as the heads or minutes, only, of an agreement entered into between the parties upon valuable consideration (the marriage), and being in their nature executory, ought to be construed and molded in equity according to the intention of the parties at the time of making them. (Tabb v. Archer, 3 H. & M. [Va.] 399 McGuire v. Scully, 1 McM. [S. C.] 378; Horry v. Horry, 2 Desaussure [S. C.] 125; Wilcox v. Hubard, 4 Mum. [Va.] 346; Dayton v. Tillon, 1 Robt. 21.)</p>

■ (Reported below, 41 Hun, 577.) The nature of the action and the material facts are stated in the opinion. Plaintiff’s laches and neglect to collect for two and a half years discharged the guarantor. (Ins.

This was an action of ejectment. The plaintiffs stated in their complaint that, on the 8th day of February, 1865, they were possessed of two undivided third parts of the mansion-house and lot of Nathaniel Gihnan, deceased, known as 171 Clinton street, in the city of Brooklyn, having the right to use and occupy the same for their respective lives, subject to the right of Theophilus Gilman and Frazer Gil-man to also use and occupy the premises with them, whenever they should…

This action was brought by plaintiff individually, and as executrix of the will of Julius E. Meyer, her deceased husband, to obtain a judicial construction of his will. The provisions of the will in question and the material facts are substantially set forth in the opinion. The widow was liable for the deficiency on the foreclosure sale. (1 E. S. 749, § 4.) The interest on the $20,000 in the firm of J. B. Meyer & Co., bequeathed to the widow, is a specific legacy.

The plaintiffs, as administrators of one Henry T. Wakefield, deceased, brought the present action to have set aside and . declared fraudulent and void, as against a judgment recovered by them, a certain conveyance of real and personal property made by defendant Orrin G. Robbins, to defendant Henry L. Roberts. The defendant Robbins did not appear or defend in the action, and the trial was had upon the issues raised by the answer of the defendant Roberts.

The facts,- so far as material, are stated in the opinion. As the order of General Term does not state that the reversal was upon questions of fact, it must, therefore, be deemed to have been upon questions of law only.

This action was brought to foreclose a mortgage executed .by defendant George Wilson to Elizabeth J. Clay, plaintiff’s intestate, the terms of which, as well as the material facts, are stated in the opinion. The defendant, Eliza A. Wilson, wife of defendant, Michael K. Wilson, alone appealed.

upon an order made’January 13, 1887, which affirmed a judgment in favor of defendant, entered upon a verdict. This action was brought originally by John A. Kemochan, the present plaintiffs intestate, against defendants, as executors of the will of Eichard M. De Mill, who, at the time of his decease, was the sole surviving member of the firm of De Mill & Co. In 1871 said firm sold to Kemochan forty shams of the stock of a corporation known as the Albemarle Swamp Land Company.

peremptory mcmdanvus requiring defendants, as arbitrators appointed under an arbitration agreement between the petitioner and Lorenzo Dimick, to proceed with the arbitration.

plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. This action was brought by plaintiff as administratrix of the estate of Robert E. Morris, to recover damages for alleged negligence, causing the death of her intestate. The material facts are stated in the opinion. The plaintiff’s intestate assumed the risk of riding on these cars, as they were not constructed for or intended by defendants to be used as passenger cars.

These are cross appeals from judgments of the Geneial Term of the Supreme Court in the first judicial department, made March 2, 1888, which affirmed in each case a judgment entered upon orders overruling plaintiff’s demurrer to the sixth defense set up in the answer and sustaining the demurrer to the seventh defense set up in the answer. (Mem. of decision below, 47 Hun, 6%7.) The nature of the actions and the substance of the defenses demurred to are stated in the opinion.

This action was brought to have an assessment upon plaintiff’s premises, in the city of Few York, for a local improvement adjudged invalid, and to recover back the amount thereof. The complaint alleged that the assessment was levied without jurisdiction and was void, and that plaintiff paid the same in ignorance of these facts. The paragraphs of the answer demurred to are as follows: “ Seventh.

<p>Under the act of 1885 (Chap. 488, Laws of 1885), providing for the taxing of “ gifts, legacies and collateral inheritances,” the tax is upon the individual, and can be imposed only when the interest devised to each bene- | ficiary exceeds $500, the limitation provided by the statute. (§ 1.)</p> <p>A tax imposed under said act, before the amendment to it of 1887 (Chap. 718, Laws of 1887) exempting legacies to adopted children went into effect, was not affected by the latter act.</p> <p>The will of 0. gave his residuary estate to his wife M. “to be used and enjoyed and at her disposal during the term of her natural life.” One-third of said estate “ that may remain” at the decease of his said wife, the testator gave to an adopted daughter during life; the other two-thirds and the remainder of the one-third to four persons named, who were described as “ the present heirs ” of M. Held, that, upon the death of 0., his widow took a life estate with a limited power of disposition during her life, for her use and enjoyment, and any interest in the other beneficiaries was dependent upon the contingency of the exercise by her of this power of disposition.</p> <p>The appraiser appointed by the surrogate to appraise the value of the respective interests reported that, with such a construction, the gifts over , ¿ad no market value. Held, that while said gifts were sustainable as valid executory devises and the beneficiaries might eventually take a valuable estate, yet as this contingency rendered the present appraisable value of such interest incapable of any correct or reasonable approximate valuation, there was no basis for the imposition of a tax. '</p> <p>Where the present value of property devised to one, with a limitation over to others upon the happening of some event, which may or may not occur, can be ascertained, a ground for an approximate estimate of the value of the ultimate devise appears, and it may be made; but where the question as to whether any property at all will pass under the limitation over, depends upon the will of the first taker, there is no rule by which its value can be determined.</p> <p>As to whether an appraisal of the value of said gifts over for the purposes of taxation may be made if they eventually come to the possession of the beneficiaries when that event occurs, qumre.</p>

(¡Reported below, 23 J. & S. 539.) This action is continued by force and effect of section 755 of the Code of Civil Procedure, which says: “ An’ action does not abate by any event if the cause of action survives or continues.” (R. S., part 3, chap. 8, title 3, art. 1, §§ 1 and 2; 3 R. S. [Banks’ Bros. 7th ed.] 2394; Bond v. Smith, 4 Hun, 48; 35 N. Y. Supr.

The relator’s application for such approval was denied upon the ground that the proposed structure was more than eighty feet in height, and so was prohibited by the act. (Chap. 454, Laws of 1885.) The act chapter 454 of the Laws of' 1885, in so far as it undertakes, without compensation, to absolutely destroy an ancient and well recognized right of property, is unconstitutional. (Kelsey v. King, 33 How.

Robert, as executor of the will of Christopher R. Robert, deceased. The surrogate charged to and deducted from the share of the testator’s son, Frederick Robert, under the residuary-clause of the will, $20,000, and of his daughter Jane R. Corning $60,000. The said legatees excepted to these charges, and the question on appeal was simply as to the legality of these deductions. The provisions of the will in question are as follows: “Fourthly.

(Reported below, 40 Hun, 558.) The plaintiff, in the year 1885, was the owner of several policies of insurance, issued upon his life by several different companies, for a total of $35,500. Some of these were payable to his widow and minor children.

Appeal by defendant, Richard W. Peck, from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 23, 1886, which affirmed a judgment in favor of plaintiff, entered upon a verdict and which denied a motion for a new trial. The action was brought to recover damages against defendant Richard W. Peck and Ellen E. K. Peck, his wife, for the torts committed by the latter.

Carr, as administrator of the estate of Charles B. Gray, deceased. (Reported below, 42 Hun, 411.) Hpon the accounting Sarah B. Lockwood, who held a joint and several note, executed by the decedent, O. G. Lockwood and herself, payable to the order of H. H. Farnum, presented the same as a claim against the estate.

(Reported below, 42 Hun, 34.) The provisions of the will, so far as material, are set forth in the opinion. The testator’s daughter, Sarah Eyre PifEard, one of the beneficiaries named therein, died before the testator, leaving a will. The executors under a power of sale contained in. the will sold the real estate; the portion of the decree appealed from directed said executors to pay over to the executors of the will of said daughter Sarah the share given her.

Hoopes, the original defendant, the present defendants’ testator, entered upon the report of a decision of the court on trial at Special Term. This action was brought to restrain the use by the original defendant of certain brands claimed by plaintiff to be trademarks, to which he claimed an exclusive right. The original partners were formerly partners engaged in the business of manufacturing galvanized iron.

Appeal by. defendants, the executors of George L. Marvin, from an order of the General Term of the Supreme Court in the fifth judicial department, made October 21, 1881, which denied a motion for a new trial made under section 1001 of the Code of Civil Procedure upon exceptions after entry of an interlocutory judgment herein. The nature of the action and the facts, so far as material, are stated in the opinion.

' Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made November 4, 1885, which affirmed a judgment in favor of plaintiffs entered upon a verdict.

<p>The “New York Court-House,” the construction of which was inaugurated by an appropriation in 1860 (Chap. 509, Laws of 1860), was a county building, and the commissioners appointed in pursuance of the act of 1870 (§ 11, chap. 382, Laws of 1870) to complete the construction were county commissioners.'</p> <p>The provision of the act of 1872 (Chap. 9, Laws of 1872), authorizing and directing the comptroller of the city of New York to payback to the various banks, etc., of the city all moneys which had been advanced by them " for the use of any of the departments or commissioners of the city or county ” was a valid exercise of legislative power and made such advances binding obligations on the city.</p> <p>After commissioners were appointed under said act of 1870 theyappointed a treasurer, who applied to defendant to make advances to and for the use of the commissioners. . This, after its president had consulted with the city comptroller and mayor and had been advised by them that it was proper and right, it agreed to, and did make advances upon checks drawn by said treasurer No other advances were made to any county commissioners and no other claim for advances to the county was presented under the act. Reid, that, although the commissioners were not authorized to take the advances on the credit of the county, and the defendant was chargeable with notice thereof, they were ratified by the act of 1872 and the city was thereby made liable therefor</p> <p>All of the checks were drawn ostensibly to pay bills and expenses incurred by the commissioners in the construction of the court-house. It appeared that a fraudulent conspiracy had been entered into by and between the treasurer, another of the commissioners, the comptroller and others, by which certain of the bills were to be raised above their true amount and the excess was to be divided between the conspirators. A portion of the advances made by defendant were upon checks in payment of bills so raised. This conspiracy was unknown to the other commissioners, and defendant's president, who was the sole agent and representative of the bank, in making the advances- had no knowledge or notice of the conspiracy or the misappropriation. It was customary for the city banks to make advances to the various departments and commissioners in anticipation of appropriations. Held, the fact that part of the advances were so misappropriated did not deprive defendant of the right to recover the same.</p> <p>It appeared that three of the conspirators were directors of the defendant. Neither of them were present at any meeting of the board of directors when action was taken in reference to the advances, and in no way acted for the bank in the transactions. Held, that defendant was not chargeable with notice of the fraud or precluded from claiming the benefit of good faith on .its part; that, under the circumstances, knowledge which the directors who were engaged in the conspiracy had could not be attributed to it.</p> <p>As municipal corporations are creatures of the state and exist and act in subordination of its sovereign power, the legislature may determine what moneys they may raise and expend and what taxation for municipal purposes may be imposed; and so, it may compel such a corporation to pay a claim which has some meritorious basis to rest on.</p>

(Reported below, 47 Hun, 121.) This action was brought by plaintiff, as county treasurer of Lewis county, to recover penalties under section 17 of chapter 158 of the Laws of 1884, as amended by chapter 215 of the Laws of 1885.

Appeal by defendant, Isaac T. Greenwood, from judgment of the General Term of the Supreme Court in- the first judicial department, entered upon an order made December 31, 1886, which affirmed a judgment of Special Term in favor of the executors of the last will and testament of William W. Wright, deceased. (Reported below, 42 Hun, 633.) The material facts, other than those stated in the opinion, are as follows: .The plaintiff is the widow of Isaac John Greenwood.

- (Reported below, 22 J. & S. 463.) This action was brought to recover a sum claimed to be due as the final payment under a contract between the defendant and plaintiff, for furnishing the materials and doing the work of regulating and grading One Hundred and Eighty-fifth street, in the city of New York.

Kurst, by directing that one-half thereof should be paid to said John B. Kurst, and the other half should be divided equally between the two sons of his deceased brother Charles IT. Kurst, and that the decree, as thus modified, should be affirmed. The facts, so far as material, are stated in the opinion. In the construction of-the ninth clause of this will, any parts of the will are to be construed in relation to each other, so, if possible, to form one consistent whole.

This action was brought to recover damages for injuries sustained by plaintiff from slipping and falling from the platform of a car on defendant’s road. The material facts are stated in the opinion.

In December, 1877, the claimant was, and for about twenty years prior thereto had been, the owner of a parcel of land situate at the corner of John and Main streets in the city of ITtica, known as “Ballou block.” In the years 1876 and 1877 a portion of the block was occupied by the firm of John C. Hieber & Co., who were engaged in the business of buying and selling drygoods.

This action was brought against defendants as executors of the estate of Henry Graham, deceased, the father of plaintiff, upon an account presented by him against said estate, which had been rejected by the executors. Among the items of the account was one for $2,062.50, claimed by plaintiff to be the amount of two certificates of deposit loaned by him to his father July 24, 1866.

(Reported below, 47 Hun, 383.) The facts, so far as material to the questions discussed, are stated in the opinion. If taxable the land is properly taxed in the city of Brooklyn. (Lake v. City of Brooklyn, 43 Barb. 54; Orr v. City of Brooklyn, 36 N. Y. 661.) The land is taxable. It is not exempted by express statutory terms.

(Reported below, 49 Hun, 233.) ' • The facts are sufficiently stated in the opinion. If the plaintiff objects to the defense as containing evidence in addition to the matter properly pleaded, his remedy was by motion to strike out the redundant matter. (Al. Ins. Co. v. Cleveland, 14 How.

(Reported below, 23 J. & S. 253.) The nature of the action and the material facts are stated in the opinion. The plaintiff is entitled to costs, because the action is one of which no justice of the peace could have taken jurisdiction. (Code, §§ 2863, 3228, subd. 4.) In determining the right to costs, the test question is whether defendant’s counter claims should be regarded as payment or as offsets. (Fuller v. Conde, 47 N. Y. 89; Lablanche v. Kirkpatrick, 8 Civ.

Appeals by Richard Webber, purchaser, from orders of the General Term of the Supreme Court in the second judicial department, one dated December 13, 1887, which affirmed an order of Special Term denying a motion of said purchaser to be released from his purchase; the other made February 14, 1888, which affirmed an order of Special Term directing a resale, etc. {Mem. of decision below, 46 Hun, 561.) On the 5th day of February, 1887, a judgment in partition was rendered…

April 19, 1887, which reversed, “ for error of fact,” a decree of the surrogate of Monroe county admitting to probate the will of John Burger, deceased, and directing a trial by jury of this question: “ Was John Burger of sound and disposing mind at the time the will in question was executed % ” The General Term had no power on the appeal taken from the surrogate’s decree to reverse the decree and order a new trial before a jury.

<p>Appeal from judgment of the General Term of the Supreme 'Court in the first judicial department, entered upon an order made December 31,1886, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed by the court, and affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The plaintiff must show, to entitle him to a verdict in this action, that in a subsequent proceeding to which the defendants were parties, the liability of the defendants on the bond was restored. (Browning v. Vanderhofer, 4 Abb. N. C. 166.) Of two innocent parties, that one must suffer who puts it in the power of the third person to do the act which caused the injury. (Greenleaf v. Stanton, 6 Week. Dig. 33; Manufacturers and Traders' Bank v. Hazard, 30 N. Y. 326.)</p> <p>The arrangement or agreement between the sureties and the administratrix for indemnity was void as against public policy. (Poultney v. Randall, 9 Bosw. 234; Wilder v. Butterfield, 50 How. Pr. 386; Hill on Trustees, 266; Higgins v. Healey, 47 N. Y. Supr. Ct. [15 J. & S.] 209; Seaman v. Duryea, 11 N. Y. 330.) The sureties were not innocent third parties. (Theobald on Principal and Surety, 1; Hill on Trustees, 266; Cushing v. Gore, 15 Mass. 60; Stewart v. Eden, 2 Caines, 121; 14 Am. L. Rev. 839; Jones v. Quinnipiak Bk., 29 Conn. 15; Dudley v. Hawley, 40 Barb. 397; Hoffman v. Carson, 22 Wend. 285; Cobbs v. Dow, 9 Barb. 230; Ely v. Ehle, 3 Comst. 506; 1 Smith’s L. C. 488; Stanley v. Gaylord, 1 Cush. 550; Platt v. Tuttle, 23 Conn. 233; Justice v. Mundell, 14 B. Monroe, 12; Spraights, Exr. of Dudley, v. Hawley, 39 N. Y. 441; Hunter v. H. R. I. & M. Co., 20 Barb. 493, 494; Moore v. Payne, 12 Wend. 123.) If the sureties had a right to have this estate in the manner in which they had it in their hands, it was their own negligence that they gave it back to the administratrix. (Devoe v. Fanning, 2 Johns. Ch. 251; Gardner v. Ogden, 22 N. Y. 327; Linke v. Wilkinson, 57 id. 445, 451-453; Pringle v. Phillips, 5 Sandf. 157; Danforth v. Vanderwoort, 4 Duer, 101.) The sureties were never discharged from liability. (7 Wend. 435; 21 id. 270; Gardner v. Barney, 24 How. Pr. 467; Van Gerhard v. Lighte, 13 Abb. Pr. 101, 103; Watt v. Reilly, 62 How. Pr. 351; In re Van Horn, 7 Paige, 46; 1 Crary’s Spec. Pro. 442; Keily v. Dusenbury, 42 N. Y. Supr. Ct. 238; Westervelt v. Smith, 2 Duer, 456, 457; Thayer v. Clark, 4 Abb. Ct. App. Dec. 391; 48 Barb. 243; Schofield v. Churchill, 72 N. Y. 566; Douglass v. Howland, 24 Wend. 35; Jackson v. Griswold, 4 Hill, 522; Arnett v. Sherry, 35 N. Y. 256, 260; Baggett v. Boulger, 2 Duer, 160; Gerould v. Wilson, 81 N. Y. 583; W. N. Y. L. Ins. Co. v. Clinton, 66 id. 331; Louman v. Yates, 37 id. 604; Gottberger v. Taylor, 19 id. 150; Gordon v. McCarthy, 3 Whart. [Penn.] 407; Coleman v. Bean, 1 Abb. Ct. App. Dec. 374; Lee v. Clark, 1 Hill, 56 , Buel v. Gordon, 6 Johns. 126; Page v. Russel, 2 M. & S. 551; Welsh v. Welsh, 4 id. 333; Frost v. Carter, 1 Johns. Cas. 73, 2 Caine’s Cases in Error, 310; Macdonald v. Bovington, 4 T. R. 825; Mayor v. Steward, Burr. 24, 39; Lucas v. Winton, 2 Camp. 443; Ballard v. Burgett, 40 N. Y. 314; Belloni v. Freeborn, 63 id. 387.)</p>

(Reported below, 41 Hun, 594.) The action was upon a money demand. The complaint did not allege that defendants were residents of the county. The demurrer was, in substance, that the complaint did not state facts showing jurisdiction of the persons of the defendants or of the cause of action, and did not state facts constituting a cause of action.

. This action was brought to recover damages for alleged injuries causing the death of Henry Appel, plaintiff’s intestate. Appel was a switchman in defendant’s employ and was engaged in coupling and uncoupling cars in its yards in Buffalo. His business was to direct the movement of the cars of a train for distribution in the yard and to uncouple the cars. While engaged in uncoupling cars his foot was caught in a frog and he was run over and killed.

(Beported below, 19 J. & S. 354.) The nature of the action and the facts are sufficiently stated in the opinion. Upon the death of the testator the taxes became a first lien upon the personal estate in the hands of the executor, and the land thereby became only secondarily liable therefor.

This was an action to recover possession of certain rifles and “ spare-parts ” belonging thereto.

The indictment charged as follows: “ The grand jury of the county of Jefferson, by this indictment, accuse Andrew Weldon of the crime of criminally receiving stolen property knowing the same to have been stolen, committed as follows: “The said Andrew Weldon, on the seventeenth day of August, in the year of our Lord one thousand eight hundred and eighty-seven, at the - city of Watertown, in the county of Jefferson and-state of Hew York, did receive.from Daniel Hoolihan, alias…

<p>Where, upon a reference under the statute of a claim against an estate, based on a legal cause of action, the plaintiff recovers nominal damages, even if the plaintiff under the Code of Civil Procedure (§§ 1835, 1836), may not recover his costs (as to which quiere), the defendant is not legally entitled to costs, nor is the allowance thereof to him discretionary (§ 3340).</p> <p>The costs in such case are regulated by the Revised Statutes (3 R. S. 89, § 37) and the section of said Code (§ 3339), giving defendant costs in actions specified in the preceding section “ unless the plaintiff is entitled to costs as therein specified,” does not give the right, as the preceding section does give plaintiff costs in an action against an executor and administrator (§§ 3863, 3338, subd. 4), and the fact that by other sections the right is made contingent upon a refusal to refer (§§ 1835, 1836), does not author, ize the awarding of costs to the executor or administrator on a recovery by the other party although costs may not be awarded to the latter.</p> <p>An order awarding costs to an administrator, where he is not entitled to them, is reviewable here. (Code, § 191, subd. 3.)</p> <p>Hopkins v. Lott (43 Hun, 443) reversed.</p>

Appeal by landowners from an order of the General Term of the Supreme Court in the first judicial department, made May 18, 1888, which affirmed an order of Special Term confirming the report of the commissioners of estimate and appraisal, appointed in proceedings to acquire title to lands in the city of Mew York, for the purpose of establishing a public place in the twenty-second ward of that city, pursuant to the provisions of chapter 451 of the Laws of 1884.

(Reported below, 47 Hun, 604.) It appeared by the sheriff’s return that the relator was held under several warrants of commitment and imprisoned for contempt in not paying alimony and counsel fees as ordered in an action brought by his wife against him for divorce. The facts material to the questions discussed are stated in the opinion.

The material facts are set forth in the opinion. The General Term erred in holding that the Special Term was wrong in excluding testimony offered for the purpose of showing that the petitioner had not sufficient financial ability to build the road.

Appeal by defendant, the University of Rochester, from a judgment of the General Term of the Superior Court of the city of Hew York, entered upon an .order made January 3, 1887, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trr at Special Term.

(Reported below, 23 J. & S. 259.) This action was brought to recover back $3,190.65, money paid by plaintiff as purchaser of lands sold on the '7th of May, 1883, for the non-payment of taxes, under the direction of the comptroller of the city of New York.

The nature of the action and the material facts are stated in the opinion. Technical words are not' necessary to constitute a binding contract. (Barney v. Worthington, 37 N. Y. 112; Wheeler v. Allen, 51 id. 37.) Where there is evidence of a contract, it is not competent to give evidence either that the services are worth more or less than the contract-price as a basis of recovery. (Trimble v. Stillwell, 4 E. D. Smith, 512; Marsh v. Holbrook, 3 Abb. Ct. App.

<p>Appeal from judgment of the G-eneral Term of the Supreme Court in the first judicial department, entered upon an order made January 16, 1888, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>This action was against the sureties upon a bond of indemnity executed by Peter J. Vanderbilt as principal and the ■defendants as sureties.</p> <p>The recitals and condition of the bond are as follows:</p> <p>“ Whereas, The board of education of the city of Hew York, did, on the 18th day of July, A. D., 1819, enter into a contract with one Peter J. Vanderbilt of the city and county of Hew York, for the erection, in part, of a school-house at the north-westerly corner of Lexington avenue and One Hundred and Fifth street, in the said city of Hew York, at and for the sum of $80,911, to be paid in cash to said Vanderbilt, in twelve installments, as in said contract expressed; and,</p> <p>“ Whereas, There is now due and to grow due, to the said Vanderbilt under the said contract, the sum of fourteen thousand four hundred and seventy-seven dollars ($14,411), to wit., the five last installments in said contract specified; and,</p> <p>“ Whereas, Certain persons assuming to act under and in pursuance of chapter 315 of the Laws of 1818, have filed notices of lien or claims, as against said last mentioned sum of $14,411, with certain notices of the pendency of actions to enforce said liens:</p> <p>“ The condition of this obligation is such that if the above named and bounden Peter J. Vanderbilt, Erastus Crawford and Alfred W. Endlong, or either of them, shall save and keep harmless the said mayor, aldermen and commonalty of the city of Hew York, and the board of education, and the board of school trustees in the twelfth' ward in such city, of and from any judgments, costs, damages, claims or recovery in said above named actions, or any of them, and shall well and truly pay any judgment that may be recovered in said actions, or any of them, against the mayor, aldermen and commonalty of the city of Hew York, or the said board of education, or said board of school trustees, then the above obligation to be void; otherwise to remain in full force and virtue.”</p> <p>After this bond was executed and delivered to the city, it paid to Vanderbilt the entire balance, remaining unpaid to him at the time of the execution and delivery of the bond.</p> <p>The actions in favor of the persons filing the notices of liens to foreclose the same were consolidated and judgments were recovered in their favor against the administratrix of Vanderbilt, who had died after the time when all said payments had been made to him. The conclusion of the referee before whom the actions were tried as one suit was that these persons were “ entitled to recover judgment against the said Jane Vanderbilt, as administratrix, etc., and the mayor, aldermen and commonalty of the city of New York, for the amounts severally found due them in the findings of fact, with interest from January 1, 1881, and costs.”</p> <p>Upon this report a judgment was entered in the Court of Common Pleas in which the proceedings were prosecuted, directing that the said sums so ordered to be paid by the city as specified, were to be paid out of the moneys earned under the contract, and which moneys it was stated “ are in the pos-. session of the mayor, aldermen and commonalty of the city of New York, or secured to be paid to it by the bond referred to.”</p> <p>Then followed this provision: “ And it is further adjudged and decreed that no personal judgment is given in favor of either of the plaintiffs or lienors against the defendants, the mayor, aldermen and commonalty of the city of New York, the trustees of public schools of the twelfth ward of the city of New York, and Stephen A. Walker, as president of the board of education of the city of New York.” An appeal was taken from the judgment to the General Term of the Court of Common Pleas, where it was affirmed, with costs to the several parties, and from that judgment it was appealed to the Court of Appeals, where it was in like manner affirmed. After this affirmance an application was made to strike out the last paragraph of the judgment, and to insert in its place a paragraph declaring that the several persons to whom the sums of money were directed to be paid should recover judgment for such sums respectively, and should have execution for them against the property of the mayor, aldermen and commonalty of the city of New York, and an order was made providing for this change in the form of the judgment.</p> <p>Further facts appear in the opinion.</p> <p>The plaintiffs cannot recover in this action, because the averment of the complaint that the judgment of March 26,1885, as recovered and originally entered, was “ a personal judgment ” against the mayor, etc., of New York, the payment of which could be enforced by execution against the property of the corporation; and that because such an execution could be lawfully issued, the corporation was compelled to pay the judgment, was not proved. (Connor v. Reeves, 103 N. Y. 527.) Under the circumstances, while the corporation held this fund of $14,477 in its treasury, it was simply as trustee for the lienors and the contractor. (People ex rel. Dannat v. Comptroller, 77 N. Y. 45; Poppenhusen v. Seeley, 3 Abb. Ct. App. Dec. 615.) The liability of the defendants is strictissimi juris; it cannot be extended beyond the express terms of their contract. ( Ward v. Stahl, 81 N. Y. 406; National Bk. v. Conklin, 90 id. 110; Thompson v. McGregor, 81 id. 592.) The judgment entered March 26, 1885, was purely a judgment in rem, which reached this fund of $14,477 and nothing else. (Mittnacht v. Kellerman, Daily Reg., May 17,1887; Gerould v. Wilson, 81 N. Y. 573; Stevens v. Mayor, etc., 84 id. 296; Saltus v. Genin, 3 Bosw. 250; Barnes v. Quigley, 59 N. Y. 265.) The alteration of the judgment of March 26, 1885, effected as it was, discharged the defendants from all liability to the plaintiffs under their bond. (Bangs v. Strong, 7 Hill, 250; Grant v. Smith, 46 N. Y. 93; Calvo v. Davies. 73 id. 211; Paine v. Jones, 76 id. 274.)</p> <p>The validity of the judgments paid has been confirmed by the Court of Appeals. (Bell v. Mayor, etc., 105 N. Y. 141.)</p>

Cross appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made ¡November 19, 1885, which modified, and affirmed as modified, a judgment in favor of plaintiff entered upon the report of a referee; also appeal by defendants from so much of said order as affirmed an order of Special Term denying a motion on the part of defendants to resettle the judgment.

This action was brought to compel specific performance on the part of defendant, the purchaser, of a contract to purchase certain real estate.

Motion to amend remittitur by stating therein the grounds of the decision upon papers showing the intent of the relator to appeal to the Supreme Court of the United States.