Volume 113 — New York Reports

Court in the second judicial department, entered upon an order made December 13,188Y, which reversed a judgment construing the will of John 0. Henderson, deceased, entered upon a decision of the court on trial without a jury. The material facts are stated in the opinion. The court should have endeavored to sustain the will.

denying a motion for a new trial; also appeal from an order .of said General Term, made' September 19, 1887, which .affirmed an order of Special Term-, awarding costs to plaintiff. The action was brought against the executors of James B. Huntting to recover back money alleged to have been paid to him upon a consideration which had failed. The material facts are stated in the opinion. In the absence of -fraud the rights of the parties are to be measured solely by the writing.

<p>L. died leaving a widow and no children. His will, after a devise of his residuary real estate to three persons named, his next of kin and heirs, who were non-resident aliens, contained a direction that said real estate be sold at auction by a referee appointed by the Supreme Court, the net proceeds to be deposited in court “ in the same manner as money belonging to non-residents ” for the use and benefit of the devisees “ subject to the further order of the court.” In an action for a construction of the will, it appeared that two of the devisees died before the testator; the court found that the gifts to them lapsed, and as to their portions the testator died intestate. The court also found that the direction for a sale worked an equitable conversion of the real estate into personalty and the portion so undisposed of was to be distributed as such; that is, to the widow one-half and $2,000 in addition. Held, error; that the direction for a conversion was simply for the purposes of the will, and while as to the non-resident aliens the doctrine of conversion would, if necessary, apply in their favor, if not required for that purpose, a conversion would not be presumed; and, so far as the widow was concerned, the property undisposed of, whether a sale was necessary or not, devolved according to its original character.</p> <p>One of the parties appellant also appealed separately from the same judg- . ment. Held, that the appeal should be dismissed as unnecessary.</p> <p>Reported below, 44 Hun, 518.'</p>

This action was commenced May 20, 1875, by Simon Leserman against Isaac Bernheimer and .Jacob Goldsmith for the settlement of accounts growing out of partnership business theretofore carried on by plaintiff and defendants under the name of “ Oleopliene Oil Company.” During the pendency of the action the plaintiff died, and it was continued in the name of his executrix, Julia Leserman, and she dying it was revived and continued in the name of Louis Leserman, sole acting…

The nature of the action and the material facts are stated in the opinion. There was no executed gift of the securities to the defendant during her uncle’s lifetime, and no trust created with respect to them.

Eysaman, deceased. The material facts are stated in the opinion. The execution of the will is not proven by two witnesses. (Mitchell v. Mitchell, 16 Hun, 97; 77 N. Y. 596; Sisters of Charity v. Kelly, 67 id. 409; Heath v. Cole, 15 Hun, 100; Howland v. Taylor, 53 N. Y. 627; Reynolds v. Root, 62 Barb. 250; Willis v. Mott, 36 N. Y. 486; 110 id. 596; Neugent v. Neugent, 2 Redf. 369; Chaffee v. B. Miss.

The nature of the action and the material facts are stated in the opinion. Facts of public notoriety relating to the subject of a contract must be presumed to have been known to the parties at the time of the making of the .contract. (Woodruff v. Woodruff, 52 N. Y. 53; Reynolds v. C. Ins. Co., 47 id. 597; Gallagher v. Boden, 4 East. Rep. 144, 147; Memmert v. McKeen, 112 Penn.

(Reported below, 48 Hun, 562.) This action was brought by plaintiffs, who are the owners of property fronting upon Broadway and Madison avenue, in the city of New York, to restrain the construction by defendant of a railway under the surface of said streets, which the complaint alleged defendant was about to attempt to do, claiming authority under the act (Chap. 312, Laws of 1886), which act the complaint alleged to be unconstitutional and voidt The title o'f act of 1868…

This action was brought by plaintiffs, as executors of the will of Sarah Burr, deceased, to obtain a judicial construction of said will. The material portions of the will are set forth in the opinion. The second clause of the second codicil is not a residuary clause, but is a specific bequest of residue to particular legatees; and in case it should be held that the specific legacies hereinafter attacked cannot take effect or are void, they would not fall into this clause.

The complaint in this action alleged, in substance, that one Geiger and plaintiff, composing the firm of Geiger & Co., purchased, in April, 1871, of David J. Ely, defendant’s testator, a quantity of teas, then in the custody of the Chicago & China Tea Company; that it was agreed between the purchasers and that company that it should hold the teas in store and insure the same for their benefit, which it did, together with other teas belonging to Ely; that the teas so insured…

Appeal by defendants, the trustees of Trinity College and the Hector, etc., of St. Paul’s Protestant Episcopal Church in the city of Poughkeepsie, from so. much of a judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made June 25, 1888, as directed judgment on a case submitted, adjudging that said defendants were liable to taxation under the Collateral Inheritance Tax Act (Chap. Y13, Laws of 188Y), upon legacies.

The nature of the action and the facts are sufficiently stated in the opinion. The only remedy of a party occupying the plaintiff’s position is an action for damages, because if all legal requirements have been performed he is absolutely entitled to the contract; it must be deemed confirmed in and to him at the time the bid was opened, under chapter 308 of the Laws of 1861. (People v. Dowdney, 99 N. Y. 641; People ex rel. McKone v. Green, 11 Hun, 56, 61; People ex rel.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 14, 1886, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The manner of giving notice pointed out by the statute cannot be waived, the mode as much as the thing is a statutory requirement, (Billings v. Picket, 39 Hun, 504.) Carter v. Brooklyn Life Insurance Company is decisive of this case. (110 N. Y. 15.)</p> <p>The dates of written instruments are presumptive proof of the time when they were delivered. (Costigan v. Gould, 5 Denio, 200, 293; People v. Snyder, 41 N. Y. 397; Livingston v. Arnoux, 56 id. 507, 519; Donnelly v. Deering, 24 Week. Dig. 18; Frankel v. Hays, 20 id. 417.)</p>

The nature of the action and the facts are sufficiently stated in the opinion. A partnership existed between plaintiff and defendant’s intestate. (2 H. B. L. 235; 1 Smith’s L. C. 974, 1180; Colyer Part. § 2; 3 Kent’s Com. 23, 24; 3 Harrison, 485; 10 Me. 489.) That a partnership existed may be proved, in the absence of a distinct contract, verbal or written, by acts, facts and circumstances sufficient to establish a quasi partnership.

This action was brought by plaintiffs, as executors of the will of Caroline 3VI. Biggs, deceased, to obtain a judicial construction of said will.

This action was brought to obtain a judicial construction of a will and codicil. It appeared that Angelina B. Walker died on the 7th of June, 1884, leaving real and personal property in Monroe county; that by her will, dated April 23, 1881, she, by its first clause, gave to her sister Olive, for life, house No. 89 Frank street; remainder to Mrs. A. B. Johnson, Mary A. Hatch and Milicent J. Johnson.

Cboss-appeals from different portions of judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 18, 1886, which affirmed a judgment entered upon the report of a referee.

The nature of the action and the material facts are stated in the opinion. The decree of the surrogate, upon the accounting by the defendant Hamilton as executor, was conclusive in favor of both of the defendants, Hamilton and Van Rensselaer, against the right of the plaintiff to recover the judgment rendered and appealed from herein.

The material facts are stated in the opinion. There was no authority in the court below to grant a permanent injunction on affidavits and after entry of final judgment. (Code of Civ. Pro. §§ 602, 608; Snelling v. Howard, 7 Duer, 400; Fellows v. Heermans, 13 Abb.

The nature of the action and the material facts are stated in the opinion. When a defendant requests the court to direct a verdict in his favor, he thereby assumes that there is no dispute as to the facts, and substitutes the court in the place of the jury, and he is concluded by its decision.

The nature of the action and the facts are sufficiently stated in the _ opinion. The appellant is entitled to the share of her deceased child discharged from all claim of the trustees and executors. (1 R. S. [Edm. ed.] 680, § 67; In re De Kay, 4 Paige Ch. 403; Bellanger v. Shafer, 2 Sandf. Ch. 295, 296.) The claim of no person taking any interest during the widow’s lifetime is in conflict with the .appellant’s right of dower.

This was an action upon the following guaranty: “ Whereas, Ferdinand Straus' is indebted to F. B. Wallace in the sum of eleven thousand five hundred and fourteen dollars, with, interest from August 16, 1881, for which the said Wallace holds as collateral security one hundred shares of the stock of the Central Pacific Railway Company and one hundred shares of Ohio Central Railroad Company, and whereas the margin on said stock is inadequate. “ Row, therefore, in consideration…

This was a reference under the statute of a disputed claim against an estate. The facts, so far as material, are stated in the opinion. Conceding that indorsements on the note are admissible as evidence, there should be legal proof that they are truthful records of the transactions they purport to describe.

This action was brought by plaintiff, as the administratrix; of Sylvester Byrnes, for the recovery of damages resulting from his death. Byrnes was a brakeman in the service of the-defendant, and was engaged on a freight train which ran between Port Jervis and Deposit. On the 25th day of February, 1884, his train was going east and there was a car of lumber on a side track at Lordville to be taken into hi& train.

Bomaine 'Brown, as assignee of B. P. Fairchild, purchaser, from his purchase at a sale pursuant to judgment in this action. This was an action of partition. An interlocutory judgment of partition and sale was entered in May, 1885. As to the premises now in question, the sale took place in ¡December, 1886, under a supplemental decree of this court.

The facts, so far as material, are stated in the opinion, In construing grants to exercise the right of eminent domain, “ á strict rather than a liberal construction is the rule.” (In re Poughkeepsie Bridge Co., 108 N. Y. 483, 490; In re N. Y. Cable Co., 109 id. 32.) The rapid transit act makes the fixing of the routes an integral and separate step in the formation of a company, allowing for that, and that alone, thirty days.

Appeals from judgments of the General Term of the Superior Court of the city of New York, entered upon orders made December 15, 1886, which affirmed judgments in favor of plaintiff, entered upon verdicts directed by the trial court. The nature of the action and the material facts are stated in the opinion. In ejectment the plaintiff must recover on the strength of his own title, and if he has none, the question of the defendant’s title is unimportant.

This action was brought by plaintiff, as the widow of Morgan Everson, to recover dower in certain premises. On the trial the court held that plaintiff’s dower interest should be charged with its just proportion of a mortgage in which she joined with her husband, which is set forth in the opinion, and an interlocutory judgment was entered accordingly, referring it to a referee to admeasure the dower.

decision of the court on trial at Special Term. This action was brought to establish and to compel the-specific performance of an alleged stipulation for the discontinuance of an action in the Marine Court of the city of New York, wherein the plaintiff here was plaintiff and the defendant’s testator was defendant, and the cancellation of a judgment, entered therein against the plaintiff for costs. The material facts are stated in the opinion.

. This action was brought to compel defendant, as lessee of the Bleecker Street and Fulton Ferry Railroad Company, to account and to pay over to the city one per cent of its gross receipts from the operation of the leased road. The interlocutory judgment adjudged plaintiff to be entitled to the relief sought and directed an accounting. The material facts are stated in the opinion. A tenant or a sub-tenant is not bound to pay taxes and assessments unless he assumes them.

The complaint in this action alleged, in substance, that the plaintiff is the only child and heir-at-law of Gershom B. Smith, deceased; that said Gershom B. Smith died, leaving a will which was duly proved, and the defendant qualified as executor ; that by the will the said Smith devised certain premises owned by him in fee, and known as Hos. 18 and 20 Howard street, in the city of Hew York, to the defendant Cornell, as executor, in trust, to take charge of and collect the…

This action was broúght to recover possession of certain railroad bonds. The material facts are stated in the opinion. If a person, when goods are demanded of him, rests his refusal on grounds quite distinct from any claim of lien, he cannot afterwards put forth a claim of hen as his justification for his refusal.

<p>The will of D., and a codicil thereto, gavehis residuary estate to his executors in trust, to apply it,orthe proceeds of sale, which they were empowered to make, to the establishment and endowment of a charitable institution, whose object and the class of persons to be relieved and benefited thereby should be the same as a charitable institution named. The executors were authorized and directed to apply for and obtain from the state legislature,“as"early as practicable,” an act of incorporation of such an institution, and to do this, if possible, within ten years after his decease. In the event that the gift “should be adjudged or proved invalid or its execution be impossible, either by judicial decision or from any other cause,” the testator directed that all his residuary estate should be sold and the proceeds equally divided among certain existing religious and charitable corporations named, all of whom had capacity to take. In an action for the construction of the will, held, that the primary gift was invalid, as there was contemplated a period measured by years, not by lives, during which there would be no person in existence by whom an absolute estate in possession could be conveyed, and so there was an unlawful suspension of the power of alienation; also, that the gift was not saved by the fact that an institution, such as contemplated by the testator, could have been incorporated under the general law, as such a corporation was not intended or directed, but one formed under a special charter; also, that if the will should be construed as working an equitable conversion of the real estate into personalty this would not affect the question, because considering it as personalty, the prohibition of the statute against a suspension of the absolute ownership of personal property for more than two lives would apply.</p> <p>Shipmcm v. Hollins (98 N. T. 811); Burrill v. Bocvrdman (43 id. 254) distinguished.</p> <p>But, held, that the alternative and substituted gifts were valid; and that they took effect and the property vested in the beneficiaries named at the death of the testator.</p> <p>By the codicil the testator gave to a sister, E., two lots of land. She died during Ms lifetime. Held, that the lapsed devise went into the residue. The common-law rule that lapsed devises do not fall into the residue, but go to the heirs as undisposed of by the will, was done away with by the Revised Statutes (2 R. S. 57, § 5), and there is now no difference between lapsed devises and lapsed legacies, as it respects the operation upon them of a general residuary clause.</p> <p>Also, held, that, as in the event which has happened, of the vesting of the residue in the corporations named, there was an imperative direction for the conversion of the real estate into money, and a gift of the proceeds, rents and profits went with the residue to the legatees.</p>

Appeal fróm judgment of the General'Term df the Supreme Court in the fourth judicial department, entered upon an order made April 14, 1888, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. This action was brought to recover damages for injuries causing the death of Thomas Murphy, plaintiff’s intestate,, alleged to have been caused by defendant’s negligence.

D. C. Crawford et al, as executors of the will of Joseph S. Barker, deceased. The question was as to the distribution of the residuary 'estate. The disposing clauses of the will are as follows: “ First. I direct my said executors to pay all my just debts -and funeral expenses as soon as convenient after my decease. “ Second. I direct my said executors to pay to Bev. Morris D. 0.

This action was brought to recover damages for alleged negligence on the part of defendants, causing the death of Martin W. Bond, plaintiff’s intestate. The material facts are stated in the opinion. To enable the plaintiff to maintain this action she must show that her intestate was free from negligence which caused or contributed to the injury; that the defendants were guilty of negligence, which was the sole cause of the injury.

in the fifth judicial department, entered upon an order made October 22, 1886, which affirmed a judgment in favor ,of plaintiff, entered upon a verdict. This action was brought by plaintiff, as executor of the will of Charlotte J. Lewis, to recover damages for the alleged conversion of certain promissory notes belonging to the estate. The facts, so far as material, are stated in the opinion. The tortious taking alleged in the complaint was not proved.

<p>In an action against sureties for the tenants upon a lease of certain hotel property, brought by McD., the landlord, but continued after' his •decease by his executors, the defense was that defendants were induced to become sureties by reason of certain false and fraudulent representations made by decedent to them. On the trial defendants proved that when the tenants came to defendant W. and asked him to become a ■•surety, he requested them to go to McD. and make certain inquiries as' to the business done at the hotel, so that he might judge as to the propriety of his consenting to become a surety; that they went with another •of the sureties and a third person and that McD. made to them the representations set forth in the answer. Defendant W. and one of the tenants "were then called as witnesses for the defense and were asked as to what was said to W. on the tenant’s return from the interview with McD, This was objected to and excluded as incompetent under" the Code of Civil Procedure (§ 839.) Held, error; that, conceding the testimony was incompetent to prove what representations were, in fact, made by McD., as defendants were bound to prove, in addition to this, that the representations were communicated to them and that they were thereby induced to become sureties, having proved by a Competent witness what representations were made, it was competent to prove by the witnesses called that they were communicated to W.; that this was not a personal conversation with deceased.</p> <p>Hill v. Woolsey (43 Hun, 481), reversed.</p>

<p>The will of 0. gave one-eighth of her residuary estate to each of five persons named, “to have and to hold the same to them, their heirs and assigns, forever.” Four of the beneficiaries died before the testatrix. She left neither parent nor descendant. The entire estate had come to the testatrix from her deceased husband; the five persons so named were his brothers and sisters, the balance of the residuary estate was given, one-eighth to the children of each of two brothers and a sister, deceased. In other clauses of the will provision was made that in case of the pre-decease of a donee his descendants should take. Held, that the gifts to the four deceased beneficiaries lapsed; that the addition of the word “heirs” did not show a contrary intent; and that, as the words of the will were clear and unambiguous, the extrinsic circumstances could not properly be resorted to to change or modify that meaning.</p> <p>The rule of the common law that a legacy or devise, given with or without words of limitation, lapses in case of the death of the devisee or legatee before the testator, in the absence of express words to prevent a lapse, or of something in the context of the will indicating a contrary intent, is still in force in this state, save so far as modified by the Be vised Statutes (2 B. S. 66, § 52), i. e., where the devise or bequest is to a child or descendant of the testator.</p> <p>The fact that words of inheritance are now unnecessary to convey a fee does not justify the construction that their use in a will is expressive of an intention that they shall be taken as words substituting in place of a pre-deceased legatee or devisee, his heirs; having a well settled and understood meaning, a different- meaning may not be given to the words.</p> <p>In re Brown (93 B. Y. 295) distinguished.</p>

This was an action for the construction of the will of Andrew Froelich, who died leaving a widow and four minor children, one of whom has since died, surviving him. The questions arose as to the residuary clause of the will, which is as follows:. “ Third.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 26, 1887, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed by the court.</p> <p>This action was brought by plaintiff to recover salary claimed to be due him as inspector of excise in the city of New York from December 15, 1880, to September 1,1881.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>The resolution of December fifteenth, by which the board of excise suspended the plaintiff from duty without pay, of which notice was communicated to the plaintiff, is a valid exercise of the power of the commissioners, and precludes the plaintiff from recovery. (Dillon on Mun. Corp. 271, note; Shannon v. Portsmouth, 54 N. H. 183; Westbury v. Kansas City, 64 Mo. 493; Wayne Co. v. Benoit, 20 Mich. 176; Attorney-General v. Davis, 44 Mo. 176; Primm v. Carondelet, 23 id. 22), The plaintiff was a mere employe, having no fixed term of employment, • whom the excise commissioners could, therefore, employ, discharge, re-employ at pleasure, day by day, as their convenience might require; he was, therefore, duly discharged by the notice of suspension from duty and pay, and until re-employed, at the pleasure of the board, his discharge continued. (People v. Board of Police, 75 N. Y. 42; Sullivan v. Mayor, etc., 47 How. Pr. 49 D)</p> <p>A clear and certain contract of hiring cannot be terminated by the master save by his unqualified dismissal of the servant, or other unequivocal act. (Alker v. Mayor, etc., 27 Hun, 413, 415; McCoy v. Mayor, etc., 46 id.-268.)</p>

The nature of the action and the facts are sufficiently stated in the opinion. As the wharfage franchise was not offered for sale at public auction to the highest bidder, the lease is illegal and void, and unenforceable in a court of law.

The nature of the action and the material facts are stated in the opinion. The contract of separation is an illegal one and against public policy and good morals, and being made between husband and wife, with no intervening trustee, was not binding upon the plaintiff, and it was, therefore, error for the court to nonsuit plaintiff.

Garretson, as executors and trustees of John B. De Bevoise, deceased, and affirmed it as modified. The said testator died June 5, 1878, leaving his widow, Sarah, him surviving; but no descendants. His widow died August 2, 1881. The fourth, or residuary clause of his will, is as follows, viz.; “ Fourth.

The facts, so far as material, are set forth in the opinion. The conventional relation of' landlord and tenant must be shown to have existed between the respondent and his sister, in order to render an action for use and occupation maintainable.

The nature of the action and the material facts are stated in the opinion. The relation between a bank and its depositor is simply that of debtor and creditor. (People v. M. & T. Sav. Inst., 92 N. Y. 7; Laws 1834, chap. 229, § 6; Laws 1875, chap. 371, §23: Laws 1882, chap. 409, § 257.) Mrs. White or her executor was not entitled to payment from the bank, but the bank was right in paying to the executor of its depositor.

<p>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 December 6, 1886, which modified, and affirmed as modified, a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought originally by William Roworth, among other things, to sét aside two deeds of certain real estate executed by him to his sons, the defendants, Joseph G. and John W. Roworth, on the ground of fraud and undue influence. He having died during the pendency of the action, it was revived and continued in the names of the present plaintiffs, heirs-at-law of the deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>When the special findings of a judge differ from the findings formally made as the basis of the judgment, the appellant has the right to rely upon such findings as are most favorable to him. (Tompkins v. lee, 59 N. Y. 662; Schwinger v. Raymond, 83 id. 192; Bonnell v. Griswold, 89 id. 122; Redfield v. Redfield, 110 id. 671, 673.) Undue influence must be proved, and cannot be presumed. The proof is made, in the first instance, when the relation and the personal intervention of the party claiming the benefit is shown. (Clapp v. Fullerton, 34 N. Y. 197-199; 95 id. 522; Gardner v. Gardiner, 34 id. 155; Septon v. Hopwood, F. & F. 578; Deane v. Negley, 41 Penn. 312; Marvin v. Marvin, 4 Keyes, 22; Small v. Small, 4 Greenl. 220; Trumbull v. Gibbons, 2 Zabriskie [N. J.] 117; Carroll v. Norton, 3 Bradf. 320; Tyler v. Gardiner, 35 N. Y. 610; Howe v. Howe, 99 Mass. 88; Hagar v. Thomson, 1 Black. 91; Gould v. Gould, 3 Story, 540; Deane v. Fuller, 40 Penn. 474; Jenkins v. Pye, 12 Peters. 42; Morris v. Talcot, 96 N. Y. 100; Sears v. Shafer, 1 Barb. 408; 6 N. Y. 268.) The burden of proof in this ease is upon the plaintiffs; they allege the fraud, and this burden remains upon them throughout the trial. (Lamb v. C. & A. R. R. Co., 46 N. Y. 271; Heinneman v. Heard, 62 id. 448; People ex rel. Smith v. Pease, 27 id. 45; 1 Greenl on Evidence, § 80; Sullivan v. Warren, 43 How. 188; Porter v. Phittleplace, 1 Wall. 685; Shultz v. Hoagland, 85 N. Y. 467; Brick v. Brick, 66 id. 144; Coit v. Patchen, 77 id. 533; Marx v. McGlynn, 88 id. 357; Estate of Gross, 7 N. Y. S. Rep. 739.) In this case where the plaintiffs’ whole evidence being considered, it appears there is a good defense to the action, the judgment should be reversed and the complaint dismissed. (Graham v. Meyer, 99 N. Y. 611; Marquat v. Marquat, 12 id. 336; Emory v. Pease, 20 id. 62; Purchase v. Mattison, 25 id. 211; Cuff v. Dorland, 57 id. 560.)</p> <p>All the elements that enter into the legal definition of fraud and undue influence co-existed here and were found by the court as facts, to wit, old age, feeble health, a decayed memory, an infirm will, a total dependence upon and confidence in the two sons, and advantage taken by them of the opportunity thus afforded to make all their father’s property theirs, in about fifteen months, for a grossly inadequate and unsecured consideration resting in promises. To these may be added the practice of artifice and deception to alienate the grantor’s affections from his other children, the fabrication of papers to simulate facts, the false expression of substantial consideration, and the undermining effect of religious delusions. (In re Will of Smith, 95 N. Y. 516; 1 Story’s Eq. Jur. §§ 236, 238; Huguenin v. Basely, 14 Ves. 273; 2 Wh. & Tud. L. Cas. in Eq. [Eng. & Am. Notes] 406; Whelan v. Whelan, 3 Cow. 537; Brice v. Brice, 5 Barb. 533; Somes v. Skinner, 16 Mass. 348; Taylor v. Taylor, 8 How. [U. S.] 183; Marvin v. Marvin, 4 Keyes, 9; Sears v. Shafer, 6 N. Y. 268; Tyler v. Gardiner, 35 id. 559; Rollwagen v. Rollwagen, 63 id. 504; Rider v. Miller, 86 id. 507; Hardry v. Hardry, 11 Wheat. 103; Allore v. Jewell, 94 U. S. 506; Griffith v. Godey, 113 id. 89.)</p>

<p>The Special Term of the Superior Court of the city of Hew York has power to suspend, hy order, the operation of a judgment rendered by it in an equity case, or to relieve the defendant from the duty of immediate obedience pending an appeal to this court, where the appeal does not of itself relieve, and a mere order staying proceedings on the part of plaintiff would not effect that purpose.</p>

therefor. This was a proceeding to punish the defendant Reon Barnes, for contempt in advising, directing, Aiding and abetting the disobedience by the other defendants, the president and. directors of the blew York Transit and Terminal Company (limited), of the judgment and orders of thé court. Barnes did not occupy any official executive position in the company which called upon him personally to perform the acts, required.

The facts are sufficiently stated in the opinion. The order, in so far ■as it directs a sale of the abstracts in advance of a trial, and before the ownership of the same is determined, affects a substantial right and is reviewable in this court. (Code of Civ.

Appeal by defendant, John Wilkinson, from order of the General Term of the Supreme Court in the fourth judicial department, made January 19, 1889, the nature of which is hereinafter stated.

Henry Crossman died January T, 1881, leaving a last will and testament, the third and seventh clauses of which are as follows: “ Thvrd.

This was an action for the specific performance of a contract for a sale of real estate in the city of New York. The facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 19, 1887, which affirmed so much of a decree of the Surrogate’s Court of Westchester county as • adjudged that certain lapsed legacies given by the will of Zalmon Bonnet, deceased, and one adjudged to be void, passed to the residuary legatee.</p> <p>The facts material to the question discussed are sufficiently stated in the opinion.</p> <p>The words “ rest, residue,” etc., necessarily presume something before taken, and can only apply to what is left. They exclude the antecedent gifts in the natural way of construing a will. (Smith v. Saunders, 2 Black. 736.) As the will evinces an intent not to give to the-residuary legatee the legacy intended for another purpose, but. which has miscarried by the prohibitions of the law, it then becomes undisposed of by the will, and, from the partiality of the law towards heirs and next of kin, they become entitled to the same. The presumption in their favor is not to be-counteracted by the courts, unless by clear words or necessary implication the will points out one who is to take adversely (Green v. Dennis, 6 Conn. 292; Van Vleeck v. Ref. D. Ch., 6 Paige, 606; Kerr v. Dougherty, 17 Hun, 241; 79 N. Y. 327 Stephenson v. O. O. Asylum, 27 Hun, 383; 92 N. Y. 433; Iserman v. Myer, 26 Hun, 651; Goodwin v. Ingraham, 29 id. 221.)</p> <p>The lapsed and void legacies fall into the residuary estate and pass to St. John’s-Church, and are not distributable to the next of kin as properly undisposed of by the testator. (In re Benson, 96 N. Y, 499, 510; Wetmore v. Peck, 66 How. Pr. 54; In re L'Hommedieu, 32 Hun, 10; Leferre v. Leferre 59 N. Y. 446; King v. Strong, 9 Paige, 94; Banks v. Phelan, 4 Barb. 80; Floyd v. Barker, 1 Paige, 480; Kerr v. Dougherty, 79 N. Y, 327; Betts v. Betts, 4 Abb. N. C. 317.) The description of the residuary legatee in the will is sufficient, for the rule is. that where the description in the will shows what legatee the-testator had in mind, it will carry the bequest whether the description is the legal title of the legatee or not. (Lefevre v. Lefevre, 59 N. Y. 434; N. Y. Inst, for the Blind v. How, 10 id. 88, 92; Greer v. Belknap, 63 How. Pr. 390; Canfield v. Crandall, 4 Dem. 111; Matter of Wehrhane, 40 Hun, 542 Shipman v. Rollins, 98 N. Y. 311; St. Luke’s Home v. Assn. of Aged Females, 52 id. 191; R. C. O. Asylum v. Emmons, 3 Bradf. 144; Holmes v. Mead, 52 N. Y. 332, 343.) The law prefers a construction of a will which will prevent a partial intestacy to one which will permit it. (Vernon v. Vernon, 53 N. Y. 351, 361; Thomas v. Snyder, 43 Hun, 14.)</p>

made the first Tuesday of May, 1888, which affirmed a judgment in favor of defendant entered upon an order dismissing 'the complaint on trial. The nature of the action and the material facts are stated in the opinion. The administrators could maintain an action to set aside this deed for the benefit of all creditors, whether they held a judgment or not.

This action was brought to recover damages for the death of Asehel Cohen, plaintiff’s decedent, which occurred by reason of a wound in the head caused by the falling of a pair of thills, attached to a grocer’s wagon, upon him while he was walking through one of the streets of the city of Hew York.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 23, 1886, which affirmed a judgment in favor oi plaintiff entered upon a verdict.</p> <p>This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant. The facts are sufficiently stated in the opinion.</p> <p>This being an inevitable accident, defendant was not liable. (Hickey v. Taaffe, 105 N. Y. 26; Kelly v. S. B. R. R. Co., 109 id. 44.) The directions which O’Rorke gave the boy as to putting the shell in were the act of a fellow-workman, for which the defendant was not responsible. (Weber v. Piper, 109 N. Y. 496; Salisbury v. Howe, 87 id. 128, 132; Storrs v. Flint, 46 Super. Ct. 498.) The verdict cannot stand on the ground that the- defendant failed to give plaintiff proper instructions. (Hickey v. Taaffe, 105 N. Y. 38; Scott v. Sheppard, 2 Smith’s L. C. [8th ed.] 800; Carter v. Towne, 103 Mass. 507; Whart. on Neg. note 137, § 143; Thomas v. Winchester, Bigelow’s L. C. 609; Davidson v. Nichols, 11 Allen, 514; Ryan v. N. Y. C. R. R. Co., 35 N. Y. 210; Kerrigan v. Hart, 40 Hun, 390; Jaffe v. Harteau, 56 N. Y. 398.) The boy was not free from contributory negligence. (Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420.)</p> <p>In the case of a child of tender years where the circumstances would justify an inference that he was misled or confused in respect to the actual situation, and that his conduct was not unreasonable, in view of those circumstances and his age, the question of contributory negligence is for the jury, although he may have omitted some precaution, which, in the case of an adult, would be deemed conclusive evidence of negligence. (Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289.)</p>

Stevens, deceased. The intestate, Stevens, died in June, 1873, leaving him surviving a widow and a daughter, Elizabeth S. Miller, an only child. The widow appears to have been subject to Sts or aberration of mind and was deemed incompetent for the transaction of business. Therefore, his daughter, joining with her one Nathaniel Niles, a lawyer, and an old friend of the family, applied for and obtained to themselves the grant of letters of administration.

Said Peter Townsend died in September, 1885, leaving a will executed on the 8th day of August, 1883. This will was duly probated, and in December, 1886, Ms executors filed their account.

The question presented was simply as to the construction of a clause in the will of the testator, which is set forth in the opinion. The language of the will will be understood in its ordinary signification, unless it appears to be .used in some other sense.

This action was brought to recover the amount of an alleged loan made by plaintiffs’ intestate to defendant. The material facts are stated in the opinion. Where one man delivers a sum of money to another, if there be nothing else to explain the transaction, the legal presumption is that the money belonged to the one who received it, and not that he thereby became a debtor to the other.

This action was upon an alleged judgment. The material facts are stated in the opinion. In declaring upon a judgment of a court of general jurisdiction, whether domestic or foreign, it is and was only necessary to allege generally that the plaintiff impleaded the defendant, and by the consideration of the court recovered judgment. It is not necessary to aver even that die court had jurisdiction.

This action was brought against defendant as executor of the will of his deceased wife, to recover for goods alleged to have been sold and delivered to him as such. The facts are sufficiently stated in the opinion. Plaintiffs could not maintain their action in a court of law.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made the first Monday of June, 1886, which affirmed a judgment in favor of plaintiffs, entered upon a verdict directed by the court.</p> <p>This action was brought to recover the sum of $500 alleged to have been deposited with defendant by plaintiffs.'</p> <p>The plaintiffs were depositors with the defendant bank. Desiring to remit a sum of money to one Hall, in Leadville, Col., they asked of the defendant’s officers if they could do it for them. They said they could, but refused to give the plaintiffs a draft on a bank in Leadville, saying they could not do that, but they would give plaintiffs a letter of advice which, as they stated, was their way of doing business. To this plan plaintiffs assented and paid into the defendant the sum of $500. They then received back from the "defendant the following writing:</p> <p>“ISTew York, July 20, 1883. )</p> <p>“ Bank of Leadville, Leadville, Colorado, f</p> <p>“ Your account is credited this day $500, received from Cutler, Hall & Co., for the use of J. Seymour Hall.</p> <p>“E. BURNS, Cashier.”</p> <p>Plaintiffs forwarded this letter to Hall, but before he received it the Leadville bank had failed and had gone into a receiver’s hands, who refused to pay any money. Plaintiffs thereupon received back the letter and then demanded that the defendant carry out their undertaking to transmit the money to Hall or to pay back the money.. Hpon its refusal this action was brought.</p> <p>The facts are .sufficiently stated in the opinion.</p> <p>This was not a special deposit for a particular purpose, the identical fund to be returned, but a deposit, generally, for credit in the account of the Bank of Leadville to be paid by the Bank of Leadville to a particular party. (Boyden v. Bk. of Cape Fear, 65 N. C. 16; Marsh v. O. O. Bk., 34 Barb. 298; Commercial Bk. v. Hughes, 17 Wend. 94.) A letter containing information of any circumstance unknown to the person to whom it is written, generally informing him .of some action by the writer, is a letter of advice. (Chitty on Bills, 165.) This letter was no part of the contract between the parties. It was evidence, however, of what the parties had done, and to the Bank of Leadville it amounted to a mere notice of that fact. The transaction would have been the same if it had not been given. (Guillaume v. G. T. Co., 100 N. Y. 498; Williams v. Deacon, 4 Exch. Ch. 401.) The right of action for this money is against the Bank of Leadville. (People v. State Bk., 36 Hun, 609.) The defendant became the agent of the Bank of Leadville in respect of these deposits. (Butler v. Harrison, Cowp. 565.)</p> <p>Defendant had no right to reduce the indebtedness of the Leadville bank to it by the application of this special deposit. (Dows v. Kidder, 84 N. Y. 121; Falkland v. S. N. Nat. Bk., Id. 145; D. N. Bk. v. O'Hare, 119 Ill. 646; Corpen v. Hall, 29 id. 512; Nimbus v. Campbell, 3 Gil. 502; Savgs. Bk. v. Wade, 11 U. S. 195; Wharton on Cont. 784, 787; City of St. Louis v. Johnson, 5 Dill, 241; Farley v. Turner, 26 L. J. & T. 10.) The issuing of a letter of advice is a certification of the foreign bank’s account. (Cooke v. State Nat. Bk., 52 N. Y. 96; Freund v. I. and T. Nat. Bk., 76 id. 352.) The transaction was in the nature of a special deposit. (Drovers' Nat. Bk. v. O'Hare, 119 Ill. 646; M. Nat. Bk. v. Loyd, 90 N. Y. 533; Van Leuven v. F. Nat. Bk., 54 id. 671.) The defendant was the agent or trustee of the plaintiff, not of the Bank of Leadville. (People v. City Bk. of Rochester, 96 N. Y. 32.) Plaintiffs are not estopped by the wording of the letter of advice. (D. Nat. Bk. v. O'Hara, 119 Ill. 646; Van Alen v. A. N. Bk., 52 N. Y. 1; 2 Graft. 544; Pennell v. Deffell, 4 De Gex, M. & G. 372; 6 Jones Eq. 34; 2 H. & M. 417; 2 Kent’s Com. 796, 801.) The deféndant bank is liable for the default of its correspondent. (Allen v. Merchants' Bk., 22 Wend. 215; Ayrault v. Pacific Bk., 47 N. Y. 570; Reeves v. State Bk., 8 Ohio, 460; Titus v. Merchants Nat. Bk., 35 N. J. L. 588; Abbott v. Smith, 4 Ind. 452; Tyson v. State Bk., 6 Blackf. 225; Mackersy v. Ramsays, 9 Cl. & F. 818.) As the Bank of Leadville could not have been compelled to pay upon the letter of advice, defendant must. (Dickerson v. Wason, 47 N. Y. 439.) Hnless the fund came into the hands of the Bank of Leadville or its receiver, defendant must repay plaintiffs. (People v. M. and M. Bk. of Troy, 78 N. Y. 269; Dows v. Kidder, 84 id. 121; Falkland v. S. N. Nat. Bk., Id. 145.)</p>

<p>Appeal from an order of the general term of the supreme court, reversing a judgment in favor of the plaintiff, entered upon the decision of the court.</p> <p>The action was for the foreclosure of a mortgage executed by James Dunn to Thomas Bierds, conveying premises situated on Carlton Avenue, Brooklyn, as security for the payment of his bond of $2,000, dated May 9, 1872. It was assigned to Paul Weber. He died intestate.</p> <p>On the 4th of June, 1874, the plaintiff, Louisa Weber, his widow, was appointed administratrix of his estate, and on July 1, 1886, commenced this action.</p> <p>James Dunn was made defendant, but did not appear. The other defendants were made parties, as having an interest in the premises subsequent to the lien of the mortgage. Adams answered. He alleged that on the application of one Herbert Bridgman, he loaned him, April 19, 1880, and February 21, 1884, certain sums of money on his bond secured by mortgages of those dates, on the premises described in the complaint; that at the time of each transaction Bridgman was the lawful owner of the property in fee simple.</p> <p>The defendant Bridgman claims to be the owner of the premises. Both the defendants aver that the mortgage in suit was paid to the then holder, and duly satisfied of record. May 13,1884.</p> <p>The trial judge found in favor of the plaintiff, and directed the usual judgment of foreclosure and sale. The general term, upon the defendant’s appeal, reversed the judgment “ upon questions of fact and questions of law. ” The question of fact litigated upon the trial arose upon the defense of payment. It appeared, to the satisfaction of the trial judge, that Paul Weber, then residing in New York, but about to visit Europe with his wife and family, did on June 6,1871, execute to one August Hartwig a power of attorney under seal, authorizing him in these words : “ To demand, ask, sue for, collect and receive all sums of money, debts, rents, dues, accounts, interest on bond and mortgage, and other demands of every kind, nature, description, whatsoever, which are or may become due, owing or payable to me from any person or persons whomsoever, and to give good and sufficient receipts, acquittances and discharge therefor, giving and granting unto my said attorney full power to do and perform all and every act and thing whatsoever requisite and necessary to be done, in and about the premises, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney, or his substitute shall lawfully do or cause to be done by virtue hereof. ”</p> <p>Weber acknowledged this instrument, so as to entitle it to be recorded. He remained absent from New York, and died in Germany, January 11, 1874. During his absence, Hartwig bought for him the bond and mortgage in question, taking an assignment to Paul Weber, and after record, held possession of said bond, mortgage and assignment till May 12, 1874, collected and receipted for in Paul Weber’s name, the semi-annual interest as follows :</p> <p>1872.</p> <p>Oct. 9. Of James and Bridget Dunn, the then</p> <p>owners.........„ . $70 00</p> <p>1873.</p> <p>June 9. 0£ James and Bridget Dunn, the then</p> <p>owners............$70 00</p> <p>Dec. 2. Of James and Bridget Dunn, the then</p> <p>owners............ 70 00</p> <p>And indorsed the same on the hond.</p> <p>On April 23, 1874, Bridgman acquired title to the premises, and assumed payment of the mortgage. It became due May 9, 1874, and was paid by him to Hartwig, May 12, 1874, and a discharge was given by Hartwig as attorney for Weber. At the same time the bond and mortgage the assignment to Weber and the power of attorney were delivered to Bridgman. Hartwig, during all his transactions, knew of the death of Weber, having been informed of it as early as the 1st of February, 1874, but he did not disclose that fact to Bridgman. But the trial judge also finds that Bridgman made no inquiry “ as to the whereabouts of the principal, Paul Weber, or whether he was dead or alive.”</p> <p>Mrs. Weber returned from Europe on the 22d or 24th of May. The trial judge also found that Hartwig never accounted to the plaintiff for the bond and mortgage or its proceeds, nor for the assets in his hands, nor did he pay her any money; that plaintiff never ratified the act of Hartwig in cancelling said mortgage ; that she had no notice of the existence of said bond and mortgage, or the cancellation thereof, and never knew of the concellation until within a short time before the commencement of this action; that said Hartwig left no record of it, nor ever informed plaintiff of its existence or cancellation; that said mortgage is wholly unpaid, and remains unimpaired as a valid and subsisting lien, by reason of any act of the plaintiff or her duly authorized agent.</p> <p>As conclusion of law, he held that the agency of Hart-wig terminated with the life of Paul Weber, and that the satisfaction of the mortgage was invalid and void.</p>

This was a reference under the statute of a disputed claim against the estate of defendant’s intestate. The claim presented, so far as material here, was as follows: “ The estate of Hiram A. Ferguson, deceased, to Charles.

Motion to tiompel the appellant to file a new undertaking with sufficient sureties as required by law, on the ground that one of the sureties to the original undertaking had become insolvent, or in case of failure the appeal be dismissed. The appellant asked that in case the court decided to require a new undertaking it be simply for costs.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made the first Tuesday of February, 1888, which affirmed a decree of the surrogate of the county of Greene upon the final accounting of the executors of Osmer Hollister, deceased.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made April 8, 1886, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from order of General Term of the Supreme-Court in the fourth judicial department, made November 13, 1888, which reversed in part an order of Special Term upon hearing of exceptions to report of a referee stating accounts, of receiver; also, appeal from an order of said General Term of same date reversing an order of Special Term denying a motion to resettle the order of General Term first appealed, from.</p>

trial. This action was brought to recover damages for alleged negligence causing the death of Michael Cullen, plaintiff’s-intestate, who was tilled?-at a crossing on defendant’s road by a collision with an engine which -was backing at a high rate-of speed and approached the crossing from the south without ringing the bell, blowing the whistle or giving any notice.