Volume 117 — New York Reports

Appeal by defendant, J. Tallman Budd, from a judgment of the General Term of the Superior Court of Buffalo of January 2, 1889, affirming a. judgment of the criminal branch of that court of November 29, 1888, Hon. Rupebt C. Titus, presiding, entered upon a conviction of the defendant of a violation of the provisions of the Grain Elevator Act (Laws 1888, chap. 581).

The facts, so far as material, are stated in the opinion. The • defendant’s requests to charge should have been refused.

Motion to dismiss appeal from a judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made at the July Term, 1888, which .affirmed a judgment in favor of defendant, entered upon the report of a referee. The material facts are stated in the opinion. This court has no jurisdiction of the appeal. (Code of Civ.

Chapin, comptroller of the state ■of Hew York, in re-levying taxes upon certain lands, which ■determination was brought up for review by certiorari. The facts are as follows: George Clark, a resident of the •county of Otsego, was the owner of several parcels of land in the town and village of Catskill, Greene county.

(Chap. 269, Laws of 1880) to review an alleged assessment made in the town of Highland, Sullivan county, upon the property of the relator for the year 1886. The facts, so far as material, are stated in the opinion. The learned General Term made an error when it assumed the proceedings under review was, In effect, converted into a proceeding in the nature of a quo warranto.

This action was originally brought by plaintiff against John O’Connor, defendant’s intestate, to recover for the care and support of an illegitimate child under an alleged contract with him. Upon the death of O’Connor his administratrix was substituted as defendant.

The material facts and the questions presented therein are sufficiently stated in the opinion. There being no specific direction in the will as to the time of payment of the annuity, the law fixed the time of payment at the expiration of one year from the death of the testator. (Pearson v. Chase, 10 R. I. 456 ; Rapelye & L. Law Dic.; Anderson Law Dic.; McLemore v. Blocker, Harp.

The nature of the action and the facts are sufficiently stated in the opinion. Defendant’s motion for a nonsuit should have been granted. (Savage v. H. Ins. Co., 52 N. Y. 502; S. F. and M. Ins. Co. v. Allen, 43 id. 394; Appleby v. A. F. Ins. Co., 54 id. 258; Foot v. A. L. Ins. Co., 61 id. 575; Blossom v. Ins.

The complaint herein alleged, in substance, that plaintiff was retained as attorney by the E. & S. L. E. Co., and rendered services of the value of $300; that defendants entered into an agreement with that company whereby they undertook to pay the claims of its unsecured creditors, including plaintiffs, with moneys placed in their hands for that purpose, but have not paid said claim. The relief demanded was payment and an accounting.

The nature of the appeal and the facts are sufficiently stated in the opinion. The order is contrary to the provisions of the Code. (Code Civil Pro. §§ 613,1312, 1327.) The order was, in any event, a capricious and reckless use of the discretion of the court.

This action was brought to recover damages for injuries alleged to have been caused by negligence on the part of said Elias Wasson, who died pending the appeal to this court. The facts, so far as material, are stated in the opinion.

This action was brought to recover of defendant a deposit' ■of $500, with interest.

<p>Where parties sustain the relation of parent and child, either by nature or adoption, the former, in the absence of an express agreement, cannot be legally required to pay for services rendered by the child nor the latter to pay for maintenance.</p> <p>0. under an agreement with G., the step-father of H., an infant, took the latter into his family as one of its inmates, and in order to collect certain pension moneys due H., which O. agreed he would pay over to H. with interest when the latter became of age, O. procured himself to be appointed guardian of H. H. lived in the family of O. until he became of age, working under his direction and earning more than enough for his support ■ On final settlement of the accounts of 0. as guardian, he presented an account charging himself with the pension moneys, but crediting for the maintenance and care of H. This credit was disallowed by the surrogate and O. was charged -with the amount of the pension moneys and interest. Held, no error; that having assumed the relation of parent ¡to his ward he could make no charge for his support, and while the surrogate had power to decide the question upon equitable principles, the facts did not present a case entitling him to any such relief.</p>

The nature of the proceeding and the facts are sufficiently stated in the opinion. If the words of section 3 of the act of 1881 (Laws of 1881, chap. 36) were ambiguous, the express mention of unincorporated associations in the sixth section is equivalent to a legislative declaration that they were not intended to be included in the third section. (In re Miller, 110 N. Y. 222; People v. G. S. T. Co., 98 id. 67, 76, 77; Bray v. Farwell, 81 id. 608; People v. H. Ins.

The nature of the action and the facts are sufficiently stated in the opinion. The shed was not an unlawful structure. (People v. Mallory, 2 Sup. Ct. 76; People v. Macy, 62 How. Pr. 65; Laws of 1875, chap. 249; Laws of 1883, chap. 435.) In any view of the statute no case is made for a mandatory injunction. (City of Georgetown v. A. C. Co., 12 Peters, 94; Atty.-Gen. v. N. J. R. & T. Co., 3 N. J. Eq. 136; 18 Vesey, 217; Atty.-Gen. v. U. Ins. Go., 2 Johns.

The nature of the action and the facts are sufficiently stated in the opinion.

This was a reference under the statute of a claim against the estate of Mary E. Payne, defendant’s testatrix. The nature of the claim, as well as the material facts, are stated in the opinion. The presumption of the regularity of official acts does not apply to jurisdictional facts in case of officers of special, limited or statutory jurisdiction.

<p>By the articles of association of a society organized in 1868 under the act of 1851 (Chap. 122, Laws of 1851), providing “ for the incorporation of building, mutual, loan and accumulating fund societies,” its shares were put at $1,000 each; each member was required to pay a weekly subscription on every share held by him, and the actual capital was to consist of the money thus contributed and of fines and premiums on loans. As fast as a sufficient amount was thus accumulated loans or “appropriations ” were to be made from time to time to the members, secured by real estate mortgages, upon which ten percent was to be paid annually. No interest was required to be paid. There was no provision in the articles of association or the mortgages given which entitled the debtor members to have their mortgages canceled without payment. It was declared that when each member had obtained his appropriation the object of the society having been accomplished it should cease to exist. Prior to October 23,1884, nearly all the members had taken loans or appropriations to the amount authorized, upon which payments had been made as required and the weekly dues paid. On that day, at a meeting of the society regularly called, it was by resolution dissolved, and its board of managers authorized to wind up its affairs; the resolution declared that the creditor or unappropriated members, after paying their indebtedness up to November first, should receive $700 on each unappropriated share, in full of all claims, and each debtor or appropriated member should be credited with $350 per share to be applied on his bond and mortgage. At that time the members had paid in dues $443 on each share. The property of the society consisted mainly of mortgages, and if divided equally among the outstanding shares, would have given to each share $365. In an action brought by the attorney-general in the name of the People by certain of the debtor and creditor members against the mem hers of the board of managers, among other things to have the resolution, so far as it provided for the distribution of assets, declared null and void, and the mortgages declared discharged, save as to subscription and redemption fees, which became due before said date. Held, that each member for each share held by him was entitled to the same amount, i. e.,' a proportionate share of the assets; if a debtor, and if he owed more than his distributive share he was bound to pay the balance, and upon such payment was entitled to a discharge of his mortgage; if he owed less than his share, he was entitled to receive the balance; that the debtor members could not be required to pay interest, as it was part of the contract and scheme of the society that no interest should be charged, but that as the claim on the part of plaintiff, and those members instigating the prosecution, is not that the creditor members have or will be paid too much, or that the amount appropriated for the debtor members is too small, but that the former are entitled to $1,000 per share and the latter to nothing, but were entitled to have their mortgages absolutely satisfied without payment, they could not complain of the distribution actually made; and in absence of any proof of fraud or misconduct on the part of defendant, conceding that such an action could be brought and maintained in the name of the People by the attorney-general, as to which qumre, this action was not maintainable.</p> <p>It appeared that defendants had remitted or condoned some fines. Held, that their action in this respect was proper, as this was in accordance with the practice of the society and within a reasonable discretion vested in the managers. .</p> <p>One L. had bought real estate of the society, giving a mortgage for the purchase-price which he was unable to pay; he offered to surrender the property and the managers agreed to make a deduction of the mortgage to the actual value of the property upon his' paying that sum. Held, that the board had power to make the deduction.</p>

This action was brought by the People against the defendants as guarantors upon the following bond or contract of the National Bank of Auburn, to wit: “ Whereas certain moneys of the state of New York have been and are proposed to be deposited in the First National Bank of Auburn, under the direction of the comptroller of the state, by the agent and warden of Auburn prison, to the credit of the treasury of the state for safe keeping and for interest. “Now, therefore, the…

<p>If, in construing a will, a general scheme can be found to have been intended and provided for which may be declared valid, it is the duty of the court to effectuate the main purpose of the testator.</p> <p>To accomplish this object the meaning of words and phrases, used in some parts of the will must be diverted from that which would attach to them if standing alone, and they must be compared with other language used in other portions of the instrument; and limitations must be implied, and thus the general meaning of all the language arrived at.</p> <p>Where a clause is susceptible of two constructions, one of which will render it valid and the other invalid, the former will be adopted.</p> <p>JF. died leaving but one child, a married daughter, her surviving, who, at that time, had five children living. By her will F. devised all her “ real and mixed estate ’’ to her executors in trust during the respective lives of G., her son-in-law, and of B.,her youngest grandchild, with power to lease the real estate, to receive and invest the net income and the accumulations arising therefrom in productive real estate for the benefit of the grandchildren of the testatrix living at her death, and of such others as should he thereafter horn of her daughter, “ during their respective minorities,” with directions to apply to the use of the grandchildren so much of the income as the executors should deem sufficient for their education and support during their respective minorities, hut no payment to he thus made unless the executors should he satisfied that there was not sufficient income for the purposes specified from the estate of the daughter. The will then provided that on the arrival of the “youngest grandchild ” at the age of twenty-one and on the death of <3. all the real estate of which the testatrix died seized, and such as the executors, may have purchased after her death, should he divided equally among her grandchildren then living; in case of the death of a grandchild leaving lawful issue, such issue to take the parent’s share. The executors were also directed to pay over to each grandchild as he or she arrived of age, in case the youngest grandchild and son-in-law were then still living, “ a proportionate share of the rents, issues and profits * * during the lives of said grandchildren and son-in-law.” In an action for the-construction of the will, held, that the words “ youngest grandchild, ” in the limitation upon the trust, referred to B., the youngest grandchild then living; and so, there was no unlawful suspension of the power of alienation, as the trust expires upon the death of (3., and the arrival of' B. at the age of twenty-one or his previous death; that the scheme of the testatrix was to create a trust term for as long a period as it could he done for the benefit of all her grandchildren, both those born and to be born, and, at the expiration of the term, to provide for a division although a grandchild born after the death of the testatrix should then be under age; that the provisions as to accumulations were to be construed as providing that any of the grandchildren who came of age before the termination of the trust term should receive his or her proportionate share, including a share of the real estate purchased by the executors, and which represented a part of the original rents and profits; that the provision as to a distribution of the real estate so purchased, upon termination of the trust, referred only to so much thereof as may be left after a distribution to the grandchildren previously coming of age; and that, as so construed, the provisions were valid, as is also the provision for the payment of the share of a deceased grandchild in the accumulations to his or her issue, or, failing issue, to the survivors, and the provision prohibiting payments by the executors for the benefit, of the grandchildren, unless satisfied that the income from the estate of their mother was insufficient for their support.</p> <p>Also, held, that the will gave to the trustees no power to sell the real estate-devised.</p>

<p>It seems that, in an action to recover damages for injuries to the easements of light, air and access to property, pertaining to real estate, caused by the erection, operation and maintenance of an elevated railroad upon an adjoining street, a question calling for the opinion of a witness as to what would have been a fair rental value of the property if the railroad had not been built is incompetent; that opinions of witnesses as to the causes which occasioned a decrease of rental value, and as to the amount of damages caused thereby, are not proper evidence.</p> <p>A judgment, however, will not be reversed for error in the admission of such testimony when the court is satisfied, upon an examination of the. whole case, that the appellant has not been prejudiced thereby.</p> <p>Where, therefore, in such a case abundant and competent evidence was given from witnesses having knowledge of the facts showing that the actual rental value of similar property in the same street steadily decreased after the building of defendant’s road; that while it was being constructed business on the street began to fall off; that dirt, ashes, smoke and cinders filled the air, darkened the light and embarrassed the trade so that business left the street, and the verdict was for a less amount than the damages, this testimony tended to show, held, that the case, showed defendant was not prejudiced by the error, and so it was no ground for a reversal.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in holding that under chapter 448, Laws of 1885, the comptroller’s deed was conclusive. (2 R. S. [8th ed.] 1098, § 19; 40 Barb. 644; 58 N. Y. 89, 90; 49 id. 349; 7 id. 517; 25 Hun, 186; Desty on Tax. 579; Ensign v. Barro, 107 N. Y. 346.) Chapter 448 of the Laws of 1885 is unconstitutional.

The questions presented and the facts appearing in the case, so far as material, are stated in the opinion. For one person to supply the means to another with which to do business is not the doing of that business by the former. ( U. S. v. A. B. T. Co., 29 Fed.

Appeal by defendant Corrigan, as executor of Cardinal John McCloskey, deceased, from a judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 11, 1889, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. This action was brought to foreclose a mortgage executed by defendant, the Father Matthew Temperance Society.

<p>The will of M. gave to A., her husband, the use of income and profits of all her estate during his life, with power, at his pleasure, to sell any of the personal estate, to receive the proceeds and appropriate the same to his own use. M. owned, at the time of her death, certain bonds which A. thereafter pledged to defendant to secure a loan. When the loan became due A.", not being able to pay, stated that fact to defendant, and proposed that it take the bonds for the loan, which proposition defendant accepted. No note or other written obligation had been given for the loan. In an action to recover for the estate the proceeds'of the bonds, held, that conceding A. had no right under the will to pledge them, and, so, that such pledge was void, he had the right to sell, and could sell, to his creditor and apply the proceeds to extinguish his debt; and that the transaction was, in effect, such a sale.</p> <p>It appeared that the books of defendant showed no cancellation of the loan, but the account ran on as before. It was proved, however, that it was defendant’s custom, in keeping its books, to show by the accounts the ultimate result of each loan, and, so, that its treatment of the matter as a loan was continued until the final result was reached. Held, that such continuation of the accounts was not inconsistent with the theory of a sale.</p> <p>The bonds, at the time of the alleged sale, were not negotiable, except at a great sacrifice. Defendant, however, succeeded in collecting the full amount; this gave to it a surplus over the principal and interest of its investment. A., having died, defendant remitted this surplus to the administrator of his estate. Held, that this performance of an honorable duty . did not authorize an inference that defendant did not consider the transaction as a sale; also, held, that the sale, although the contract was not in writing, was not invalidated by the statute of frauds; that said statute applies to executory, not to executed, contracts.</p>

O’Conner, as executor of the will of John McEvoy, deceased. The proceedings were instituted by Silas D. Gifford, assignee, etc., as the owner of a judgment against the decedent. The-portions of the decree appealed from charged the executor with $2,470, the amount of principal and interest on two bonds of Jersey City bonds, and refused him credit for $250-paid out in compliance with a provision of the will.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. The facts, so far as material, are stated in the opinion. In order to recover for a personal injury inflicted by a tame animal, such as a cow, viciousness and knowledge of the viciousness on the part of the defendant must be shown.

This action was brought by plaintiff, as a legatee under the will of William B. Best, deceased, to have his legacy charged upon the real estate. The material facts are sufficiently stated in the opinion. The legacy to plaintiff is not a charge upon the real estate. (Lupton v. Lupton, 2 Johns.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. Plaintiff, in attempting to cross the tracks of defendant’s road in a street of the city of Hew York, which was slippery, owing to the presence of ice, slipped and fell and was run over by a car moving at an unsual rate of speed. The facts material to the question discussed are stated in the opinion.

The complaint alleges the appointment of plaintiff as receiver of the property of John J. Murphy in proceedings supplementary to execution, December 4, 1886, and that the order for the examination of Murphy, the judgment-debtor in said proceedings, was served November 27, 1886.

The nature of the action and the material facts are stated in the opinion. An attachment is a complete justification to the party who obtains and levies thereunder even after it is vacated, where it was regularly issued, and not vacated because it was void or irregular. (Day v. Bach, 87 N. Y. 50.) On appeal the questions raised will be decided on the theory that the case was tried on.

This action was brought by the administrator of Peter O’Brien, deceased, to recover upon a certificate of membership issued to him, in April, 1884, upon his application, by the defendant as follows: “ This is to certify that Peter O’Brien, of 15 Fayette street, city Albany, state of New York, has paid the sum of twelve dollars, being the amount required on application for membership, and is, therefore, accepted as a member of the Home Benefit Life and Accident Society of New…

This action was brought originally against H. W. Sargent, the present defendant’s testator, to recover one-third the value of certain bonds of the par value of $20,000 to which plaintiff claimed title under an agreement made between him and one Henry A. Hnderwood, sole surviving partner of the firm of J. A. Underwood & Son, which agreement, omitting names of debtors given therein, is as follows : “Agreement made this 1st day of July, 1869, between Henry A. Underwood of the…

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to allow plaintiff to testify to the amount of Mrs. Petrie’s estate above -her debts, without stating the amount of the debts. (Worrall v. Parmalie, 1 N. Y. 519, 521; Wilson v. Wilson, 4 Keyes, 423.) Exhibit A was not an account stated.

The nature of the action and the material facts are stated in the opinion. This action is maintainable provided the defendant has no title to the policy. (Carver v. Creque, 48 N. Y. 385; N. T. Co. v. Gleason, 77 id. 408; Moses v. McFarlin, 2 Burr. 1005, 1012; Tugman v. N. S. Co., 76 N. Y. 210 ; Leake on Cont. 90.) The defendant had no title to the policy.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no duress in law or fact; and even if there were, a court of equity has no power to set aside an agreement executed in consequence, especially under the circumstances of this case.

The nature of the action and the material facts are sufficiently stated in the opinion. Mary Etta Camp, at and prior to the time when she received the notes from the defendant, had a claim against him personally. (Schmittler v. Simon, 101 N. Y. 554, 557, 558.) This individual obligation of the defendant, existing prior to the giving of. the notes to Mary Etta Camp, has not been released, and the notes were not received in payment thereof.

The complaint in this action set up two causes of action. In the first it was alleged that plaintiff was the lessee of premises known as JSTos. 13 and 15 Chatham street, in the city of New York; that defendant, on or about the 1st of February, 1882, committed a nuisance upon the aforesaid premises by causing the refuse and contents of the sewer situated on Frankfort street, in said city, to be emptied thereon, and, notwithstanding due and proper notice thereof was given to…

The nature of the action and the material facts are stated in the opinion. Mutual demands, even if independent, should compensate each other, leaving the difference as the sum due. (Littlefield v. A. C. Bk., 97 N. Y. 581, 584.) Plaintiffs could not maintain the action for partition. (Code of Civ. Pro. 1532; Sullivan v. Sullivan, 66 N. Y. 37.) The complaint in this action does not state facts constituting a cause of action. (Code of Civ.

Baylis, deceased. The facts, so far as material, are stated in the opinion. The objections of' the guardian ad litem were not merely technical, nor made-for the purpose of preventing the payment of any just claim out of the estate of the decedent. (Russell v. Russell, 36 N. Y. 581, 586.) The fund is in the hands of John McOomb and William H. McComb, not as executors, but as donees of’ a general power in trust which is not imperative.

<p>W. & Co., private bankers in the city of Syracuse, were the correspondents in that city of plaintiff, a banking corporation in New York, Plaintiff forwarded to said firm notes, drafts and checks for collection The course of business was for plaintiff to indorse such paper, making it payable to W. & Co. or order “ for coil, for account of” plaintiff, and to enclose in a letter stating that the enclosures were “ for collection and credit.” The paper was charged to W. & Co. on plaintiff’s books and moneys remitted were credited. 'W. & Co. on receipt credited to plaintiff the paper payable on demand; the portion payable on time was not credited until paid. All protested paper was charged back to plaintiff, with protest fees, and returned. On Thursday of each week W. & Co. remitted to plaintiff the amount standing to its credit, less a percentage for services. In pursuance of this custom for some days prior to December 9, 1884, plaintiff had forwarded paper, a portion of which had been collected by W. & Co., and the moneys received paid out in due course of business. On that day said firm made a general assignment for the benefit of creditors to defendant H., who thereafter received the avails of collections of the residue of said paper and before any notice of plaintiff’s claim, in good faith and in pursuance of an order of the County Court directing payment of a dividend upon preferred debts, made such dividend, including therein the moneys so received.' Plaintiff had no notice of the application for said order and was not apprised of the same until after the payment of the dividend. In an action brought, among other things, to recover of H. the amount collected, held, that ha was not liable for the moneys received and paid out by W. & Co. prior to the assignment, but was liable for the amount of collections he himself received after the assignment; that under the arrangement between plaintiff and W. & Co. that firm acquired no title to the paper so transmitted to it for collection, but the title remained in plaintiff, for whom the firm simply acted as agent; but that when collections were made and received, as to such receipts the relation became that of debtor and creditor, and, therefore, as to the amount collected and paid out by W. & Co. prior to the assignment, plaintiff occupied no different position than any other creditor; that as the legal title to the uncollected paper never passed to H. as assignee the avails of collections did not, in any legal sense, come to his hands by virtue of the assignment, but as the property of plaintiff; and the fact that they were paid out by him in good faith and without notice did not affect plaintiff’s title; also, that, the order of the County Court was no protection to H.</p> <p>Plaintiff heard of the assignment December 10, 1884; it served on H. notice of its claim on December twenty-sixth. It was claimed by H. that plaintiff was guilty of laches; and so that the payment of dividend made by him in ignorance of its claim was to be protected. Held, untenable; that if laches was a defense it was not established.</p> <p>Glark v. Merchants’ Bk. (2 N. Y. 380); jlf. H. Bk. v. I/yyd (90 id. 530); Briggs v. O. N. Bk. (89 id. 182); People v. City Bk. (93 id. 582); Amesv. Blunt (5 Paige, 13); Oollumb v. Bead (24 N. Y. 505); AreriU v. Loucks (6 Barb. 470, 477); Iddings v. Bruen (4 Sandf. Ch. 417); Bullirán v. Miller (106 N. Y. 635); Ba/rnan'd v. Campbell (58 id. 73); Goodwin v. Wertheimer (99 id. 149); Haggerty v. Palmer (6 J. Ch. 437); Herring v. H. Y., L. B. & W. B. B. Go. (105 N. Y. 375) distinguished.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made February 4, 1889, which afiirmed a judgment, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to obtain a judicial construction of the will of Otto F. Fisher, deceased.</p> <p>The provisions of the will, so far as material, and the facts are stated in the opinion.</p> <p>The future estate or remainder is in fee, and it vested in interest at the death of the testator, wholly in said John G. Fisher. (Gilman, v. Reddington, 24 N. Y. 15, 16; 1 R. S. chap. 1, part 2, tit. 5, § 1; 2 id. chap. 1, art. 1, §§ 10, 13; 1 id., 723, § 13; Fosdick v. Cornell, 1 Johns. 444; Anderson v. Jackson, 16 id. 382; Scofield v. Olcott, 120 Ill. 362; In re Burnett's Trusts, 3 Kay & J. 280 ; 4 Kent’s Comm. 204; 2 Washburn on Real Estate, 510; Moore v. Lyons, 25 Wend. 142-144; Embury v. Sheldon, 68 N. Y. 228, 236 ; Alley v. Conover, 26 Week. Dig. 168.) The authority given in the will for executor to use such portion of the estate as he might think necessary for the support of the testator’s son does not create any estate which affects the vesting of the estate in John G-. Fisher, the residuary legatee. (Gilman v. Reddington, 24 N. Y. 15; Delafield v. Shipman, 18 Abb. N. C. 297.)</p>

This action was commenced November -8, 1875, to recover of defendant an annual license fee of $20 for each car run by it during the years 1860 to 1874, inclusive. The action is based upon a resolution of plaintiff’s common council and an agreement based thereon. The resolution passed December 18, 1852, authorized Myndert Van Schaick and others, defendant’s assignors, to construct a street railroad in Third avenue in the city of New York and to run cars thereon.

Hendricks. The referee found, in substance, the following facts: Montague M. Hendricks, the father of the plaintiff, Mortimer Hendricks, died in May, 1884, leaving a last will and testament, which was duly admitted to probate by the surrogate of the county of Hew York.

Beaver, against The Ulster County Savings Institution, to recover certain deposits amounting to the sum of $2,800, or thereabouts, standing to his credit on the books of the bank The administrators of John O. Beaver claiming the money as part of his estate, they were substituted as defendants in place of the hank, the money having been brought into court.

<p>Appeal from judgment of the General Term of the Supreme Court ih the second judicial department, entered upon an order made February 11, 1889, which reversed a judgment adjudging the last will and testament of Elijah T. Sherman, deceased, void, entered upon a decision of the court on trial without a jury, and directed a new trial.</p> <p>This was an action for the partition of real property brought by one of the heirs-at-law of Elijah T. Sherman, deceased.</p> <p>The material facts are stated in the opinion.</p> <p>The will creates an express .trust. (R. S. 728, § 55, subd. 3 ; Id. 730, §§ 63-65 ; Leggett v. Perkins, 2 Comst. 297 ; Ward v. Ward, 105 N. Y. 68 ; Gilmam, v. Reddington, 24 id. 1; Gladding v. Follett, 2 Dem. 58 ; 95 N. Y. 652; Doyle v. Mulvihill, 16 Week. Dig. 361; Van Schuyver v. Mulford, 59 N. Y. 426.) The trust is void for unduly suspending the power of alienation. (Hone v. Van Schaick, 20 Wend. 564; Killam v. Allen, 52 Barb. 605 ; Boynton v. Hoyt, 1 Denio, 53 ; Beekman v. Bonsor, 23 N. Y. 298; Garvey v. McDevitt, 72 id. 556.) The words in the will “ or would arrive at that age if living ” cannot be disregarded for the purpose of sustaining the trust for a different term than that fixed by the testator. (Crooke v. County of Kings, 97 N. Y. 421; Van Nostrand v. Moore, 52 id. 12; Taylor v. Biddall, 2 Mod. 289 ; Stanley v. Stanley, 16 Ves. 491; Hawley v. James, 16 Wend. 61; Coster v. Lorillard, 14 id. 265 ; Jennings v. Jennings, 7 N. Y. 547 ; Knox v. Jones, 47 N. Y. 389 ; Ward v. Ward, 105 id. 68:) As the trust estate is void the whole devise must fall. (Knox v. Jones, 47 N. Y. 389 ; Jennings v. Jennings, 7 id. 547; Van Nostrand v. Moore, 52 id. 12 ; Curtis v. Lukin, 5 Beav. 147; Festing v. Allen, 12 M. & W. 279 ; Holmes v. Prescott, 33 L. J. Eq. 264; Duffield v. Duffield, 3 Bligh [N. R.] 260 ; R. S. 723, § 13 ; Delaney v. McCormack, 88 N. Y. 174.) The siipplementary trust or power in trust to use the principal in addition to the income for the purposes described does not render the estate alienable. (Hawley v. James, 16 Wend. 121; Killam v. Allen, 52 Barb. 605; Terry v. Wiggins, 47 N. Y. 512; R. S. 732, §§ 81, 94.) The discretion conferred on the widow is not a personal discretion, but rests on facts judicially ascertainable. (Hull v. Hull, 24 N. Y. 647; Leggett v. Hunter, 19 id. 445; Rogers v. Rogers, 111 id. 228; 2 Story’s Eq. Jut. § 1061; Brown v. Higgs, 4 Ves. 708 ; 5 id. 495 ; Burroughs v. Philcox, 5 Myl. & Cr. 72.) The power of sale does not cure a void trust. (Belmont v. O'Brien, 12 N. Y. 395 ; McSorley v. Wilson, 4 Sandf, Ch, 515 ; Amory v. Lord, 5 Seld. 403.)</p> <p>Assuming that, by a certain construction of the will, it may be considered as unlawfully suspending the power of alienation, the clause which is supposed to have that effect may be excluded from the will without disturbing its general scheme. [Tiers v. Tiers, 98 N. Y. 568, 573 ; Henderson v. Henderson, 113 id. 9.) The widow has full power to use the principal of the estate, and has full power of sale ; such disposition confers a fee. (Campbell v. Beaumont, 91 N. Y. 464; Wager v. Wager, 96 id. 164; Crain v. Wright, 114 id. 307.) . There is no suspension of the power of alienation. (Beardsley v. Hotchkiss, 96 N.Y. 201; Henderson v. Henderson, 113 id. 9.)</p>

Said appellant recovered a judgment in his action on March 8, 1888 ; the judgment by confession was for $5,000; it was entered February 21, 1888. The facts, so far as material, are stated in the opinion. The making of the confession and entry of judgment thereon during the time the entry of Wood’s judgment was. delayed by the extension of time to answer, was an act of bad faith and fraudulent as to the rights of Wood.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made at the May Term, 1889, which affirmed an interlocutory judgment, entered upon an order overruling a demurrer to plaintiffs’ complaint.</p> <p>The plaintiffs by their complaint ask for damages, sustained by reason of the existence of the Metropolitan Elevated Railroad structure in front of certain premises in New York city, and for an injunction against the continuance of the obstruction in the street and the operation of the road.</p> <p>The defendant demurred on various grounds; but the' demurrer insisted upon was that causes of action were improperly united in the complaint; in that causes of action have been united, which do not affect all the parties to the action.</p> <p>Prior to April 1887, the premises were owned in fee by the plaintiffs, Robert F. Shepard and Mary N. Shepard and by Francis N. Shepard, as tenants in common. In that month Francis N. Shepard died intestate, leaving him surviving the plaintiffs Frances S. Shepard, his widow, and Francis B. Shepard, Jr., Irene F. Shepard and Dorothy B. Shepard, his only children and heirs-at-law. His widow became administratrix of his estate. The plaintiffs Robert F. Shepard, Mary N. Shepard, and the three children of Francis N. Shepard, deceased, are seized in fee of the premises, as tenants in com mon, and in bringing this action the widow of Francis N. Shepard was joined as a party plaintiff in two capacities, viz., as administratrix, to recover the past damages which occurred to the estate of the deceased tenant in common, and individually, with respect to her dower interest in the portion of the premises now owned by the children of the deceased.</p> <p>Causes of action have been improperly united in this complaint because they do not all affect all the parties to the action. (Code Civ. Pro. § 484.) Three causes of action are alleged in the complaint. ( Wiles v. Suydam, 64 N. Y. 173; Goldberg v. Utley, 60 id. 427; Richards v. Kinsley, 14 N. Y. S. R. 701; Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646; Bell v. Merrifield, 109 id. 209; Stowell v. Chamberlain, 60 id. 277; S. A. R. R. Co. v. M. E. R. Co., N. Y. L. J., Mar. 14,1889; Secor v. Sturgis, 16 N. Y. 558; Taylor v. M. E. R. Co., 25 N. Y. S. R. 229.) Tlie incidental jurisdiction of equity is no argument against the demurrer. (Worrall v. Munn, 38 N. Y. 147; Taylor v. Taylor, 43 id. 578; M. A. Ch. v. O. S. Ch., 73 id. 83; Wager v. Wager, 89 id. 161; Ostrander v. Weber, 114 id. 95; Bartram v. Hostetter, 67 Cal. 272; Murray v. Hay, 1 Barb. Ch. 59; Brady v. Weeks, 3 Barb. 157; Foot v. Bronson, 4 Lans. 47; Emery v. Erskine, 66 Barb. 9; Gillespie v. Forrest, 18 Hun, 110.) If one of the causes of action pleaded affects all the parties to the action. (McCrea v. N. Y. E. R. R. Co., 13 Daly, 302; Wetmore v. Porter, 92 N. Y. 76; Barlow v. Myers, 64 id. 46; Thompson v. Whitmarsh, 100 id. 35; Sperb v. McCoun, 18 N. Y. S. R. 616; Code Civ. Pro. §§ 1814, 3246; Austin v. Munro, 47 N. Y. 360; Danaher v. City of Brooklyn, 4 Civ. Pro. R. 286; Neilly v. Neilly, 23 Hun, 651; Ferrin, v. Myrick, 41 N. Y. 322; McMahon v. Allen, 12 How. 46 ; 1 Hilt. 103 ; Latting v. Latting, 4 Sandf. 35; Myer v. Cole, 12 Johns. 349; Landau v. Levy, 1 Abb. 376 ; Demott v. Field, 7 Cow. 58 ; Smith v. Goertner, 40 How. 185; Lucas v. N. Y C. R. R. Co., 21 Barb. 245; Hall v. Fisher, 20 id. 441; Spier v. Robinson, 9 How. Pr. 325; Stanton v. M. P. R. R. Co., 15 Civ. Pro. R. 296 ; Hufnagel v. Mt. Vernon, 49 Hun, 286.)</p> <p>Assuming that the case is to be 'treated as if several common-law causes of action were set up, or as if the action were one at common law, the demurrer, nevertheless, was properly overruled. (McCrea v. N. Y. E. R. R. Co., 13 Daly, 302; Price v. Brown, 10 Abb. N. C. 67; Armstrong v. Hall, 17 How. Pr. 76 ; 6 Wait’s Actions and Def. 78; Hasbrouck v. Bunce, 62 N. Y. 475.) Frances S. Shepard, as administratrix of her husband’s estate, is a necessary party plaintiff to enable her husband’s co-tenants to recover their past damage. (Depuy v. Strong, 37 N. Y. 372; Austin v. Hall, 13 Johns. 286; Low v. Mumford, 14 id. 426 ; Decker v. Livingston, 15 id. 479 ; Hill v. Gibbs, 5 Hill, 56 ; Crippen v. Morss, 49 N. Y. 63, 69.) This complaint states but one cause of action. (Lattin v. McCarty,41 N. Y. 107,109; Henderson v. N. Y. C. R. R. Co., 78 id. 423; M. A. B. Church v. B. Church, 73 id. 95; Pond v. M. R. Co., 20 N. Y. S. R. 479 ; N. Y. N. Bk. v. M. E. R. Co., 108 N. Y. 660.) The plaintiff, Frances S. Shepard, as an individual, is clearly a proper party plaintiff because of her dower right in the property in question. (Simar v. Canaday, 53 N. Y. 298.) The complaint is not demurrable on the ground that it does not state a cause of action. (O’Sullivan v. N. Y. E. R. R. Co., L. Jour., Sept. 19, 1889 ; C. B. Co. v. Lewis, 63 Barb. 115; Taylor v. M. R. R. Co., 18 J. & S. 340; Irvine v. Wood, 51 N. Y. 224-230 ; Uline v. R. R. Co., 101 id. 121, 123 ; Ponde v. R. R. Co., 112 id. 186, 188, 190 ; Williams v. N. Y. C. R. R. Co., 16 id. 111; Henderson v. N. Y. C. R. R. Co., 78 id. 428-431,434,436, 437.) The decision of the court below was right in view of this being a suit in equity. (Simar v. Canaday, 53 N. Y. 298, 305 ; Derham v. Lee, 87 id. 599, 604; Story’s Eq. Pl. §§ 72, 446, 447, 452,)</p>

The substantial averments of the complaint are set forth in the opinion. This action is simply for the reformation of a written contract, and the enforcement of it as reformed. (Code of Civ. Pro. § 483 ; Briggs v. Oliver, 68 N. Y. 336; Kelly v. Downing, 42 id. 71, 77.) Plaintiff’s delay, shown on the face of the complaint, deprives her of any standing in court to demand the reformation of the policy.

Fitzpatrick, a purchaser at a sale under the judgment herein, to surrender for cancellation a deed • executed to him by the referee appointed to sell. The action was for partition. Roche was made defendant as one interested in the property to be partitioned, and as such . appeared in the action by attorney.

Underhill, executor of the will of Elizabeth B. Underhill, deceased, as gave judgment that said Underhill have and recover from a legatee named an amount found to have been over-paid him by said executor. The Surrogate’s Court can administer the remedy in the same proceeding by the proper decree. (Code Civ.

<p>On the trial of an action before a referee, at the close of the plaintiff’s evidence, the defendant, without announcing that he rested his case, moved “that the complaint be dismissed on the merits;” the referee granted the motion and plaintiff’s counsel excepted. The referee subsequently made his report which contained findings of fact and of law, with the conclusion that the complaint should be dismissed on the merits and that a judgment should be rendered against plaintiff on the merits of the action, with costs to defendant. On settlement of the case plaintiff’s attorney, on notice, moved to have the referee “change or modify his findings so that the decision on the final motion will be judgment for the defendant dismissing the complaint with costs, and not a judgment or decision or finding upon the merits.” The motion was denied and an exception taken. Held, that the action of the referee was equivalent to a nonsuit; that he should have made no finding of fact, except such as would justify a nonsuit; and so, had no right to make any findings depending upon disputed or inconclusive evidence; and that, to maintain the judgment, defendant was bound to show there was no-disputed material question of fact which, upon a jury trial, the court would have been required to submit to the jury, and that upon the undisputed evidence he was entitled to judgment.</p> <p>The action was brought by plaintiff, as executor, to recover certain moneys alleged to have been received by defendant to and for the use of plaintiff as executor. The moneys in question were received by defendant, and all the dealings with reference thereto took place between him and plaintiff after the death of the testatrix. Defendant claimed on the trial that the plaintiff could not maintain the action in his representative capacity. The referee, however, before any evidence was given, decided that the action was maintainable. Held, that the ruling, even if erroneous became the law of the case, and defendant having had judgment in his favor, could not complain; and that the nonsuit could not be sustained on appeal on the ground that the action was not so maintainable.</p> <p>Plaintiff and defendant’s wife were children of the testatrix and interested in the estate. Plaintiff’s evidence was to the effect that among the assets which came to his hands as executor were a bond and mortgage and two-endowment policies of insurance issued to the testatrix upon the life of her husband; that plaintiff, under the advice of defendant, who was his attorney, and upon whose counsel and direction he implicitly relied in the management of the estate, they both fearing that said securities might be seized by adverse claimants, creditors of the testator’s husband, assigned them to defendant for the purpose of protecting them against such claimants, and without any consideration whatever being paid for said assignments, with, the understanding that the proceeds should belong to the estate; that defendant collected the insurance policies and received a portion of the proceeds of collection of the bond and mortgage. The . action was brought to recover the amounts so received. Held, that the moneys when received by defendant became the property of the estate and that plaintiff was not estopped by the assignments; that it was not necessary to bring an action to set them aside, but plaintiff could recover the amount in an action for money had and received; that if any wrong was committed or intended by the transfers the parties were not in pari delicto; also, that the maxim ex turpi causa non oritur actio did not apply to the plaintiff prosecuting in his representative capacity for the benefit of the estate.</p> <p>Also, held, the fact that plaintiff, under the advice of defendant, entered in the inventory of the estate the amount ostensibly received on assignment of the mortgage, and verified the inventory, did not furnish conclusive evidence of the receipt thereof.</p>

The nature of the action and the facts are sufficiently stated in. the opinion. Upon the trial of an action a party or a person from, through or under whom such a party derives his interest or title by. assignment or otherwise, shall not be examined as a witness in his own behalf or interest or in behalf of the party succeeding to his title or interest .against the executor. (Code Civ.

<p>Appeal from judgment of the General Term of the Superior-Court of the city of Hew York, entered upon an order made January Y, 1889, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting' plaintiff on trial, and affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.</p> <p>Plaintiff’s evidence was to the effect that in crossing Sixth avenue, in the city of Hew York, upon which there are two tracks of defendant’s road, he found his way blocked by a car on the nearest track which had stopped at the crossing ; to get out of the way of a passing truck he jumped onto the rear platform of the car and started to cross over it; as he was doing so the conductor of the car kicked at him; to avoid the kick he leaped from the platform, landing in the centre of the other track, when he was struck and knocked down by the horses of a car moving thereon at a rapid and unusual rate of speed, and was run over by the car. Plaintiff did not see the approaching car or look before he leaped to see if one was approaching.</p> <p>Further facts appear in the opinion.</p> <p>Under the allegations of the complaint, any evidence tending to establish defendant’s negligence was admissible. (Oldfield v. N. Y. & H. R. R. Co., 14 N. Y. 314 ; Agnew v. B. C. R. R. Co., 20 Abb. N. C. 235; Ehrgott v. Mayor, etc., 96 N. Y. 277; Mack v. S. L., etc., R. R. Co., 77 Mo. 232; Schneider v. M. P. R. R. Co., 75 id. 295.) Drivers of vehicles through frequented streets must anticipate that travelers on foot may be at the crossings of any street, and they must have their vehicles under control and regulate their speed accordingly. (Birkett v. K. I. Co., 110 N. Y. 504; Murphy v. Orr, 96 id. 14; Moebus v. Hermann, 108 id. 349; Shearman on Neg. [4th ed.] 462.) It was error to take the case from the jury, and to direct a verdict for the defendant. (Bagley v. Bowe, 105 N. Y. 171; Bridges v. N. L. R. R. Co., 7 H. of L. App. 213; Robson v. N. E. R. R. Co., L. R., Q. B. Div. 85; M. R. Co. v. Jackson, L. R., 3 App. Cas. 209.) If the defendants’ up-town car and team were being driven at an unlawful and dangerous rate of speed, and the defendants’ conductor, on the down-town car, drove the boy ' from the platform in the face of the on-coming team, that would be negligence — at the very least it presents questions to be decided by a jury. (Rounds v. D. & L. R. R. Co., 64 N. Y. 132; Hoffman v. N. Y. C. & H. R. R. R. Co., 87 id. 25; Shea v. S. A. R. R. Co., 62 id. 185; Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 113 N. Y. 670.) The defendant is responsible for the act of the conductor in driving the boy from the car, by kicking at him. (Shea v. S. A. R. R. Co., 62 N. Y. 185; Cohen v. D. D., etc., Co., 69 id. 170 ; Lang v. N. Y., L. E. & W. R. R. Co., 22 N. Y. S. R. 110; Mott v. C. I. Co., 73 N. Y. 543; Schultz v. T. A. R. R. Co., 89 id. 246; Sandford v. E. A. R. R. Co., 23 id. 343; Biddle v. H. M. & F. R. R. Co., 112 Penn. 551.) The absence of the life guard was competent on the question of defendants’ negligence. (Oldfield v. N. Y. & H. R. R. R. Co., 14 N. Y. 314.) That plaintiff’s own testimony is not corroborated on some one point has never been considered a sufficient reason for taking the case from the jury. (Burnett v. Harris, 50 Barb. 379; Saffer v. D. D., etc., R. R. Co., 24 N. Y. S. R. 210; Harr v. N. Y. C. R. R. Co., 23 id. 187; Cousins v. T. A. R. R. Co., 25 id. 341; Spooner v. D., L. & W. R. R. Co., 23 id. 555; Hoffman v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 25; Rounds v. D., L. & W. R. R. Co, 64 id. 129 ; Elwood v. W. U. T. Co., 45 id. 552; Miller v. Ins. Co., 1 Abb. N. C. 470; Schwier v. N. Y. C. R. R. Co., 90 N. Y. 560.) On the evidence in this case a verdict of the jury in favor of the plaintiff would have been sustained. (Archer v. N. Y. C., etc., R. R. Co., 106 N. Y. 602; Hays v. Thompson, 2 Hun, 518 ; Cheeny v. N. Y. C. R. R. Co., 16 id. 415 ; Morse v. Sherrill, 63 Barb. 21; Case v. People, 14 Hun, 511; Cothran v. Collins, 29 How. Pr. 155 ; Hickenbottom v. D., L. & W. R. R. Co., 15 N. Y. S. R. 11.) The question of defendant’s negligence should have been submitted to the jury. (Hoffman v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 26; Rounds v. D., L. & W. R. R. Co, 64 id. 132 ; Mott v. C. I. Co., 73 id. 543; Clarke v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 113 N. Y. 670; Jetter v. N. Y. C. R. R. Co., 2 Abb. Ct. App. Dec. 458; Massoth v. D. & H. C. Co., 64 N. Y. 524; Knupple v. K. I. Co., 84 id. 488 ; P. R. R. Co. v. Werner, 89 Penn. St. 64 ; Gaynor v. O. C. R. R. Co., 100 Mass. 208; Wheelock v. B. & A. R. R. Co., 105 id. 203; Deegan v. Cappel, 25 N. Y. S. R. 336.) The question of contributory negligence was also for the jury. (McGovern v. N. Y. C. R. R. Co., 67 N. Y. 417; O’Mara v. R. R. Co., 38 id. 445 ; Barry v. N. Y. C. R. R. Co., 92 id. 290 ; Haycroft v. L. S. R. R. Co., 2 Hun, 489 ; 64 N. Y. 637; McRichard v. Flint, 23 N. Y. S. R. 100 ; Hart v. H. R. B. Co., 80 N. Y. 622 ; Thurber v. R. R. Co., 60 id. 326 ; Beltan v. Baxter, 58 id. 411; Massoth v. D. & H. C. Co., 64 id. 529.)</p> <p>The defendant was not negligent. (P., etc., R. R. Co. v. Spearen, 47 Penn. St. 300.) The plaintiff was guilty of contributory negligence in jumping before the horses without looking, and the case at bar comes directly within the case of Motel v. Sixth Avenue Raillroad Company (2 How. [N. S.] 30; 99 N. Y. 632). The proof of absence of negligence on the part of the plaintiff is as much a part of the plaintiff’s case as negligence on the part of the defendant, and the burden to prove absence of negligence is on the plaintiff affirmatively. (Hale v. Smith, 78 N. Y. 480 ; Harnett v. B. S. & C. R. R. Co., 17 J. & S. 185 ; Tolman v. S. B. & N. Y. R. R. Co., 98 N. Y. 198 ; 1 S. & R. on Neg. [4th ed.] § 7.) Where plaintiff charges negligence, and not willful injury, he cannot prove the latter. (P. R. R. Co. v. Smith, 98 Ind. 42 ; Clark v. Post, 113 N. Y. 17; G. R. R. Co. v. Oaks, 52 Ga. 410; Benedict v. S. W. R. R. Co., 24 N. Y. S. R. 169 ; Tracy v. Ames, 4 Lans. 500 ; Southwick v. F. N. Bk., 84 N. Y. 420 ; Vail v. R. R Co.,106 id. 283 ; Dwight v. G. L. Ins. Co., 103 id. 341.) If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, then it is the duty of the court to direct a verdict. (People v. Cook, 8 N. Y. 67; Wilds v. H. R. R. R. Co., 24 id. 430, 433; Kelsey v. N. L. Oil Co., 45 id. 509; Cagger v. Lansing, 64 id. 417, 427; Nuendorff v. W. M. Ins. Co., 69 id. 389, 392, 393; Toomey v. R. R. Co., 3 C. B. [N. S.] 146; Culhane v. N. Y. C., etc., R. R. Co., 60 N. Y. 133, 136; McKeever v. N. Y. C., etc., R. R. Co., 88 id. 667; Hyatt v. Johnson, 91 Penn. St. 200; Ryder v. Wombwell, L. R., 4 Exch. 39 ; Improvement Co. v. Munson, 14 Wall. 442; Pleasants v. Faut, 22 id. 120; Comrs. v. Clark, 94 U. S. 284; Griggs v. Houston, 104 id. 553; Bailey v. C. R. Mill, 21 Fed. Rep. 159 ; Witherbee v. Wasson, 71 N. C. 451; Davis v. T. A. R. R. Co., 9 J. & S. 31; Donnelly v. Brooklyn, etc , R. R. Co., 109 N. Y. 16, 22; Stone v. Browning, 58 id. 598, 604 ; Burt v. Smith, 11 Week. Dig. 278 ; Field v. N. Y. C. R. R. Co., 32 N. Y. 339, 350 ; Cahill v. Hilton, 106 id. 512, 522; Ryan v. Thompson, 6 J. & S. 133 ; Godin v. Bk. of Commonwealth, 6 Duer, 76.) It is not sufficient that there is some evidence; there must be evidence on which the jury might reasonably and properly conclude that there was negligence. (Toomey v. London B. S. C. R. Co., 3 C. B. [N. S.] 146 ; Cornman v. Easton C. R. Co., 4 H. N. 781, 786; S. & R. on Neg. [4th ed.] 68, § 56 ; Improvement Co. v. Munson, 14 Wall. 442, 448 ; Baulec v. H. R. R. Co., 59 N. Y. 356, 366.) Every presumption is in favor of the judgment. (Day v. Town of New Lots, 107 N. Y. 148 ; Isaacs v. T. A. R. R. Co., 47 id. 122 ; Stewart v. B. & C. T. R. R. Co., 90 id. 588.) Defendant was not bound to use the life-guard, especially under such extraordinary circumstances as are established in this case. (Unger v. F. S. S. R. R. Co., 51 N. Y. 497; Sweeney v. B. & J. E. Co., 101 id. 520; Smith v. N. Y. & H. R. R. Co., 6 Duer, 225, 231 ; 19 N. Y. 127 ; Steinweg v. E. R. Co., 43 id. 123 ; Lowery v. M. R. R. Co., 12 Daly, 431, 434; 99 N. Y. 150 ; Clark v. Barnes, 37 Hun, 389, 391; McAlpin v. Powell, 70 N. Y. 126 ; Victory v. Baker, 67 id. 366, 370 ; Sutton v. N. Y. C. & H. R. R. R. Co., 66 id. 243 ; 21 Am. Rep. 514; Balch v. Smith, 7 H. & N. 706; Hounsell v. Smyth, 7 C. B. [N. S.] 729 ; Crocker v. K. I. Co., 92 N. Y. 662 ; Moore v. Gadsden, 93 id. 12 ; Knupfle v. K. I. Co., 84 id. 488 ; 105 id. 164,170.) The exception taken by the plaintiff to the admission of Dr. Ranney’s testimony is not well taken; it was necessary for the plaintiff to establish that he came within the provision of section 834 of the Code. (People v. Schuyler, 106 N. Y. 298 ; Edington v. A. L. Ins. Co., 77 id. 564.)</p>

The facts are sufficiently stated in the opinion. The canal appraisers had power to grant a rehearing or a new trial. (Laws 1866, chap. 836.) The Board of Claims have jurisdiction and same powers as old Board of Canal Appraisers. (Laws 1883, chap. 205, § 13.) The Board of Appraisers committed a material error in admitting the claim and award of 1862 for damages to property on the north side of the creek, and in deciding that that award was a bar to a recovery in these cases.

The nature of the action and the material facts are stated in the opinion. The title to the deposit, of $5,000 is in the plaintiff. (Dung v. Parker, 52 N. Y. 494; Howe v. Haywood, 108 Mass. 54 ; Noakes v. Morey, 30 Ind. 103 ; Browne’s Stat. of Frauds [4th ed.] § 342 b.) There was no valid contract made by Hatch & Co. with any one.

Motion to dismiss an appeal from' an order of the General Term of the Supreme Court in the first judicial department, made September 9, 1889, which affirmed an interlocutory judgment in an action for partition.

Hunt, deceased. The material facts are sufficiently stated in the opinion. The intention of the-testator, as manifested by the entire will, should govern. (Hoppock v. Tucker, 59 N. Y. 209 ; Shelby v. Byer, Jacob’s Rep. 207; Silcox v. Bell, 1 S. & S. 301; Mayott v. Mayott, 2 Bro. Ch. 125 ; 2 Jarman on Wills [Am. ed.] 698 ; Weeds v. Bristow, L. R., 2 Eq. 333 ; Pond v. Bergh, 10 Paige, 152; Sheety’s Appeal, 82 Penn.

The nature of the action and the facts are sufficiently stated in the opinion. The acceptance was no waiver of damages. (Norton v. Dreyfuss, 106 N. Y. 94; Briggs v. Hilton, 95 id. 517, 529 ; Parks v. M. A. & T. Co., 54 id. 586; Studer v. Bleistem, 48 Hun, 577; Kent v. Freedman, 101 N. Y. 616.) The acts of the parties did not estop plaintiff from claiming the damages.

<p>Under the act relative to assignments for the benefit of creditors (Chap. 466, Laws of 1877), it is essential to the validity of an assignment that the assignor should part with the instrument by actual delivery either to the assignee or his agent.</p> <p>Until actual delivery, therefore, title does not pass to the assignee, although he may have previously signed the assent required by the statute.</p> <p>In an action for the alleged wrongful taking- and conversion of certain property, in which plaintiff claimed title under an assignment for the benefit of creditors, in form an indenture, containing the assent of this assignee in the body of the instrument, there was evidence to the effect that the assignee first executed it and thereafter, in his absence, the assignor executed it, leaving it in the hands of the attorney who drew it to await further directions from the assignor, neither party intending that it should be deemed a complete transaction until so determined, and there was no delivery of the assigned property until some time thereafter when a formal delivery of the instrument and the property was made. It was claimed by defendants that the instrument became a complete and valid assignment as soon as it was signed and acknowledged by the parties, and that the continued possession of the assigned property by the assignor thereafter was conclusive evidence of fraudulent intent. Held, untenable; and that the question of delivery and fraudulent intent were properly submitted to the jury; that while the burden was upon plaintiff to show that the delivery of the instrument was not, in fact, on the day of its date and execution, the evidence authorized a finding that delivery was not made or intended until, by the direction of the assignor, formal delivery was made; and this having been found, as the title to the property remained in the assignor until such delivery, which was accompanied by a transfer of possession of the property, there was no fraud as matter of law.</p> <p>Upon the question as to the value of the property defendants offered in evidence certain accounts purporting to have been accounts made by an auctioneer at the request of the sheriff who levied on and sold the property at the instance of defendants. Said accounts were not sworn to, were not made by the witness who produced them and were proven only to have been rendered by the auctioneer to the sheriff. Held, that they were properly excluded, and as they were inadmissible for any purpose, a general objection was sufficient.</p> <p>It seems that evidence of the result of sales made in such a case is competent on the question of damages.</p>

Appear from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made September 13, 1887, which affirmed a judgment in favor of plaintiff, entered upon a verdict. This action was brought by plaintiff to recover damages for alleged negligence causing the death of John Blanchard, plaintiff’s intestate. Blanchard was employed by defendants Usher & Watkins as a day laborer in their saw-mill.

This was a case agreed upon in a controversy submitted without action. In such submission the following are the material facts: On the 2d day of July, 1862, the' United States Congress passed an act donating public lands to the several . states and territories which might provide colleges for the benefit of agriculture and the mechanic arts.

<p>Appeal by William F. Lawrence, as land-owner, from an •order of the General Term of the Supreme Court in the second judicial department, made May 16,1889, which affirmed an order of Special Term, confirming a report of commissioners appointed in this proceeding to condemn property, awarding to the land-owner $175.</p> <p>Upon this appeal the appellant, having so stated in his notice of appeal, sought to review certain prior orders of the Supreme Court at Special and General Terms, refusing to confirm a former report of the' same commissioners and sending the case back to them for further proceedings in conformity with the opinion of the court.</p> <p>The following is a history of the proceedings : The board of water commissioners of the city of Yonkers, by resolution, duly recommended the common council “ to take the right and easement of a strip of land through the property of W. F. Lawrence, * * * the same being necessary and requisite for the construction, maintenance and repair of a part of a sewer in North Broadway, from Ashburton avenue to the Hudson river.” The board then added a “ description of the land, the right of way and easement in which is necessary and requisite for the construction, maintenance and repair” of such sewer. The description covers the loous in quo, and the whole language of the board is an assertion of ownership of the land by Lawrence and a necessity of the taking of an easement therein by the city. The common council on the 1st of November, 1887, adopted a preamble and resolution,, and in such preamble the action of the board of water commissioners was recited and the description of the land necessary to be taken was repeated in the same language as in the resolution of the water commissioners, and it was thereupon</p> <p>“ JResol/oed, That the said improvement be and the same is hereby allowed to be made, and that the right and easement recommended by the board of water commissioners in the-strip or parcel of land described above, be taken and that application be made on behalf of the common council to the Supreme Court at a Special Term * * * for the appointment of three persons as commissioners to estimate and assess^ the expense of taking a right and easement in certain property for the construction, maintenance and repair of a sewer in North Broadway and Wells avenue, from Ashburton avenue to the Hudson river, and the amount of damages to be sustained and benefits to be derived therefrom by the owners of lands and buildings affected thereby.”</p> <p>Hpon subsequent application to the Supreme Court an order was made, on motion of the attorney for the city of Yonkers, in which was recited the action of the water commissioners and that of the common council concerning the necessity of taking the right or easement for the purpose already stated, and three commissioners were in and by such order appointed “ to estimate and assess the expenses of taking such right or easement in land required for the said sewer in the city of Yonkers, and the amount of damages to be sustained and benefit to be derived therefrom by the owners of land and buildings affected thereby.” Meetings of the commissioners were had and evidence taken as to the value of this easement. The commissioners subsequently made a report which gave to Mr. Lawrence, as the value of the easement to be taken in his land, some $9,000 A motion was made to confirm the same by the city authorities, which motion is, under the charter of the city, a formal one to be made by the city. But, upon the motion to confirm, counsel for owners of property liable to be assessed for the expenses appeared and opposed confirmation. The Special Term refused to confirm the report on the ground that the city was already the owner of the easement, which the proceedings on its part were taken to condemn, because Wells avenue, which was a street in such city, already extended to the Hudson river, and over that very part of the land of Lawrence in which it was proposed to lay the sewer ; and the laying of the sewer was, therefore, nothing but the exercise of the undoubted right which the city had to perform such work in the public streets of the city. The proceedings were, therefore, remitted to the same commissioners to make a report in conformity with the views of the court as thus expressed. The land-owner appealed from the order to the General Term where it was affirmed. The proceedings were then continued before the commissioners, and acting under the directions of the Supreme Court they awarded the land-owner $175 damages, which it is agreed on both sides has been given him because of the inconvenience to his business, as an adjoining owner, in the way of getting on and off his land while the building of the sewer is under way. This report was confirmed by the Special Term.</p> <p>Whether Wells avenue extends through the lands of Lawrence, as decided by the courts below, depends upon certain facts which it is claimed are substantially uncontradicted, and which appear to be as follows:</p> <p>In 1840 there was quite a bay at Yonkers, reaching north and south of the then village lines. Previous to that time and under the authority of letters-patent from the state, a mole or pier had been built several hundred feet south of the ■south line of Wells avenue, if extended westerly, as claimed, and this mole was built out into the river about seven hundred feet, and was built in such a solid and substantial manner, of timber, rock and earth, that the waters of the river could not flow through it. Afterwards, and some time between 1845 and 1848, the Hudson River Railroad Company, under due authority from the state, built a solid embankment of twenty or twenty-five feet in width, from the northern headland of this bay right through, upon and across the waters of the Hudson river, down to the mole above described, and which it intersected. This embankment was about three hundred and fifty feet west of the original shore fine of the river, ■and it was a solid and substantial structure, through which ■the waters of the river could not flow, except that at a point •about one hundred feet north of the north line of Wells avenue, as assumed to exist, a culvert was built through such ■embankment of about four feet in width, so as to permit the "tide to ebb and flow through it. The effect of these embankments was to cut off all the old shore line of the river east ■of the railroad embankment, and to form a new shore line "west of the same. The culvert for the ebb and flow of the tide was not a highway, and did not establish any means of highway communication between tlie old shore line and the new. Prior to 1856 filling in was done to some slight extent within this small tract of water left by the building of these embankments, and in that year. Wells avenue was extended and laid out from Broadway (which was some distance east of the old high-water mark line) to a point one foot east of the Hudson River Railroad embankment above described. This point was west of the high-water mark of the old shore as it existed before the building of this embankment. Wells avenue hadnever reached the old high-water mark until years after the shore line had been, in fact, removed by the building of these embankments. The railroad embankment was three feet higher than the grade established for the extension of Wells avenue. It does not distinctly appear when it was done, but it may be assumed that Wells avenue was opened to that point one foot east of the railroad embankment, and the land was filled in and graded before the year 1869. In that year one Q-eorge Frazier, under whom the appellant Lawrence claims, obtained .a grant from the People of the state of certain land under water, which grant included the land in which the easement in question is concerned. Prior to the grant from the People, Frazier had filled in some of the land west of the railroad embankment, enough to permit teams to go on and turn around on it, and it extended from forty to sixty feet west of the railroad along the north line of the extension of Wells avenue, as claimed, and for a greater distance south than the width of such street. This filling in had continued subsequent to the grant from the People, so that by the 1st of August, 1870, the land had been filled in for a distance of two hundred and forty-five feet from' the west line of the railroad embankment, and the water of the Hudson river was, consequently, that distance from such west line. On the 1st of August, 1870, Frazier and the Stewarts, who ■were also grantees of the People of certain other lands under water adjoining on the south those granted, to Frazier, by a written instrument dedicated the land ■.therein described to be forever thereafter used as a public street. The land, as described in such deed of dedication, commenced “at the westerly end of Wells avenue, as heretofore laid out, on the northerly side thereof, thence running westerly on a line of- continuation of the northerly line of said avenue to a point, in land under water of the Hudson river, five feet westerly of the westerly line of ” the Hudson River Railroad embankment above referred to. The laud was further described so as to make it of the width of' Wells avenue. The description in the deed, it will be seen, continues the street to a “ point in land under water of the Hudson river five feet westerly of the westerly line ” of the embankment. In truth, at that time and for months before, there was no land under water at that point, in the sense in which such language is used in grants from the People, for there had already been filled in an amount of land which carried the water line two hundred and forty-five feet west of' the west line of such embankment. This dedication, however, only reached five feet west of the embankment, and was made, in terms, subject to all the rights and privileges in and to said premises or any part thereof which the Hudson River Railroad may have acquired under its charter. The city accepted such dedication by a resolution adopted September 5, 1870. Frazier or his grantees have filled in the whole of the land under water described in the patent from the People; and the land-owner, Mr. Lawrence, has for years used all of it for his own private and business purposes, with the exception of the part dedicated to the city. That portion has been so far graded as to permit of a crossing of the embankment upon which the Hudson River Railroad Company have laid their tracks, and Wells avenue has been indisputably' extended thus far.</p> <p>The proceeding was-improperly used to try title. ( Wilcox v. Oakland, 49 Cal. 29.) Mr. Lawrence holds his property under the terms of a patent, a grant, a deed from the People of the State. (Gould v. H. R. R. R. Co., 6 N. Y. 522; Stevens v. R. R. Co., 34 N. J. L. 532; Bell v. Gough, 3 Zab. 624; Sissons v. Cummings, 35 Hun, 22; People v. Kerr, 27 N. Y. 188; People ex rel. v. Town Auditor, 74 id. 310, 315; Hoboken v. P. R. R. Co., 124 U. S. 655. The whole proceeding is irregular and void for failure from beginning to end to state-or show what is the-right or easement to be taken. (Laws 1886, chap. 557, § 3 ; Laws 1881, chap. 184, title 7, § 6.) The city of Yonkers did not so appeal, and hence had no standing to be heard in any court or place against the first report. (Laws of 1882. chap. 211, title 7, § 10.) ¡Neither the city of Yonkers nor any of' the assessment payers can raise any question of title or be-heard in this proceeding to attack the title of Mr. Lawrence. (Lewis on Eminent Domain, § 441; Mills on Eminent Domain, § 161; Mt. Sterling v. Givens, 17 Ill. 255; Peoria R. Co. v. Bryant, 57 id. 473; M. C. R. Co. v. C. W. R. R. Co., 87 id. 317; Auditor v. Crise, 20 Ark. 540; Peoria, etc., R. R. Co. v. Laurie, 63 Ill. 264 ; Wright v. W. R. R. Co., 20 Wis. 341; St. Jose v. Reed, 65 Cal. 341; Conners v. Bisby, 37 Kan. 253.) The persons from whom no land or property is taken, had no standing in this proceeding to be heard against the awards in the first report. (In re Broadway Widening, 63 Barb. 572, 595; Doolittle v. Supervisors, 18 N. Y. 155 ; Embury v. Cowners, 3 id. 523.)</p> <p>The order appealed from is not reviewable by this court and the appeal must be dismissed. (In re P. P. & C. O. R. R. Co., 85 N. Y. 489, 499; Laws of 1881, chap. 184, §§ 10, 11.) The public having once acquired the right to reach the river by means of a public highway, the highway is extended over the filled-in land to the waters of the river. (People v. Lambier, 5 Denio, 9; Whetmore v. A. W. L. Co., 37 Barb. 70, 95 ; In re City of Brooklyn, 73 N. Y. 179; Steers v. City of Brooklyn, 101 id. 51, 56.) The proprietor of the water grant who filled in and made land opposite the terminus of Wells avenue, ■ acquired title to the land so made, subject to the existing easement and right of way of the public to the river front as extended. (People v. Lambier, 5 Denio, 9; Steers v. City of Brooklyn, 101 N. Y. 51, 56; Jersey City v. Morris Canal, 1 Beasley, 547; Barclay v. Howell, 6 Pet. 498; M. C. Co. v. Haight, 36 N. J. Law, 471.) The filling in being unauthorized, so far as it was destructive of the public easement, mere lapse of time does not affect the public right. So far as it was a physical obstruction it could have been removed by the proper authorities. (In re Brooklyn, 73 N. Y. 179; Driggs v. Phillips, 103 id. 77; Cook v. Harris, 61 id. 448; Bridges v. Wyckoff, 67 id. 130; S. V. O. Asylum v. Troy, 76 id. 108.) Where the commissioners adopt the -correct legal rule the court will not interfere with the amount .awarded in accordance with the correct legal principle adopted. (In reWilliam Street, 19 Wend. 679; In re Mayor, etc., 99 N. Y. 569.) The position taken by the appellants below, that the proceeding by commission was not the proper remedy, is not sound. (In re City of Brooklyn, 73 N. Y. 179.)</p>

This action was brought to obtain a judicial construction of the will of William Hutchinson, otherwise known as William Austin, and the will and codicil of Winifred Austin, his wife.

affirmed an order denying a motion for a new trial. This action was brought to recover the sum of $5,000 alleged to have been subscribed by Catherine Weeks, defendant’s testatrix, on or about December 14, 1881, for the purpose of constructing a church edifice.

Appeals from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made at the June Term, 1889, which affirmed a judgment entered upon the report of a referee.

Motion to dismiss appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made at the May Term, 1888, which affirmed a judgment in favor of defendant, entered upon a verdict.