Volume 126 — New York Reports

This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence.' The deceased was employed by defendant as a laborer in his cement quarry and was engaged in drilling rock for blasting purposes, under Patrick Doran, defendant’s foreman. Prior to the accident, eleven holes, had been drilled in a perpendicular piece of rock, were charged, fuse attached and fired, but ten of them exploded.

<p>Appeal from judgment of the superior court of Buffalo, general term, overruling demurrer to plaintiff’s complaint.</p>

This was an action to recover damages for the alleged negligent killing of plaintiff’s liushand by defendant. • The complaint alleged, in substance, that plaintiff is a resident of Rew York state; that she was appointed by the surrogate of Erie county, R. Y., administratrix of her husband’s estate; that defendant is a domestic corporation operating a railroad, a portion of which extended into Pennsylvania; that her husband was killed in said state by its negligence; that he…

This was an action to recover damages for the negligent hilling of Harry Hunter, plaintiffs intestate.' The facts, so far as material, are stated in the opinion. The court should have non-suited the plaintiffs and dismissed their complaint, or ordered a verdict for the defendant. (Tabor v. D., L. & W. R. R. Co., 71 N. Y. 489.) The defendant was not guilty of negligence. Paulitsch v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 280; C. R. I. & P. R. R. Co. v. Houston, 5 Wkly.

<p>Appeal from judgment of the supreme court, general term, ■fourth department, affirming judgment for plaintiff.</p>

a judgment in favor -of plaintiff entered upon a decision of the court on trial at Special Term. This action was commenced in Hay, 1888, to have declared forfeited for non-user the franchises obtained by the defendant under chapter 461 of the Laws of 1860, in certain streets of the city of Brooklyn. Judgment was rendered by the Special Term forfeiting the franchises as prayed in the complaint.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made September 10, 1889, which modified, and affirmed as modified, a judgment in favor of .plaintiff entered upon the report of a referee.</p> <p>This action was brought to recover damages for an alleged breach of contract to rebuild contained in a lease.</p> <p>On July 24, 1876, Bobert Dunlop, defendant’s testator, executed to plaintiff a lease of certain premises for the term of five years from November 1, 1876, with a privilege, upon giving written notice three months before the expiration of the term, of extending the same for two. years. Said lease ■contained a covenant on the part of the lessor, in case the premises were destroyed by fire, to rebuild them “ with all reasonable promptness,” the rent to be suspended during such rebuilding. On July 23, 1881, plaintiff gave said lessor a notice in writing that he desired an extension for two years, and also stating that it might be extended to May 1, 1884. The lessor answered, admitting the right to the extension for two years, but refusing to grant the extension for the extra six months. The lessor died in October, 1882, leaving a will, but said real estate was not devised, and as to it he died intestate ; he left him surviving a widow and several heirs at law, children of a deceased brother, one of whom was a minor, who did not come of age until September 8, 1883. On February 15, 1883, one Wallace, acting under powers of attorney, executed by all of said heirs except said minor, but not by the widow, executed a lease of said premises to plaintiff for five years from May 1, 1883, under a previous agreement with him, that it should cover the interest of all the parties having an interest in said property. This lease contained no covenant to rebuild, It was delivered to plaintiff March 3,1883. The buildings, which were a mill and elevator, were, on the same day, destroyed by fire.</p> <p>Plaintiff, at the time he received said new lease, had no personal knowledge as to who succeeded to the interests of the deceased lessor, and received it sujiposing it conveyed all such interests.</p> <p>A judgment was rendered in favor of plaintiff for $2,582.60, which was modified by the General Term by striking out $582.60, allowed for interest, and, as modified, affirmed.</p> <p>Further facts are stated in the opinion.</p> <p>The referee erred in not granting the motion for a nonsuit. (2 R. S. chap. 7, § 6; Western v. Lansing, 49 N. Y. 499 ; Schieffelin v. Carpenter, 15 Wend. 405; Wood on Landl. & Ten. 125, 149, 363; Henzee v. Reynolds, 1 Hayns, 143; Livingston v. Potts, 16 Johns. 28 ; Van Rensselaer v. Penniman, 6 Wend. 569 ; Whitney v. Allairi, 1 N. Y. 311.) The referee erred in permitting the plaintiff, as a witness, to give his opinion as to the value per month of the unexpired term of the lease over and above the rent reserved, if the property had been rebuilt prior to the 1st of November, 1883. (Ferguson v. Hubbell, 97 N. Y. 507; Wakeman v. Wheeler, 101 id. 205, 206; Norman v. Wells, 17 Wend. 137.) The referee erred in allowing interest on the $2,000 damages found by him. (Mansfield v. N. Y. C. & H. R. R. R. Co., 40 Alb. L. J. 79; McMartin v. State, 108 N. Y. 542; White v. Miller, 71 id. 118, 134; 78 id. 399; Mansfield v. R. R. Co., 102 id. 205.) The executor could not use- or appropriate the personal property of the estate to erect' buildings upon the land and premises, which would at once become the property of the heirs at law, and so interfere with rights of creditors, and of the widow of the deceased; nor could he convert the widow’s interest in the personalty of the estate into realty; nor change or interfere with the nature or _ extent of her dower right in the real estate. (Palmer v. City of Brooklyn, 8 N. Y. Supp. 6; Griswold v. M. R. Co., 122 N. Y. 102; Shepard v. M. R. Co., 117 id. 442; Allen v. Culver, 3 Denio, 284.)</p> <p>The obligation to rebuild created by the first lease was not discharged or terminated by the execution of the second. (Whitney v. Meyers, 1 Duer, 271; Schieffelin v. Carpenter, 15 Wend. 405, 406; Smith v. Niver, 2 Barb. 180; Coe v. Hobbey, 72 N. Y. 146; Doe v. Pool, 11 Ad. & El. [N. S.] 713; Post v. Martens, 2 Robt. 437; Porter v. Bleider, 17 Barb. 154; Wilson v. Lester, 64 Barb. 431; Davidson v. Blumor, 7 Daly, 205; Stilwell v. M. L. Ins. Co., 72 N. Y. 491.) The defendant, as the executor of the original lessor, was bound to carry out his contract to rebuild, and, in case of failing to do so, is liable as such for plaintiff’s damages. (1 R. S. 698, § 24; Kernochan v. Murray, 111 N. Y. 306 ; Ferrin v. Myrick, 41 id. 322; Riblit v. Wallis, 1 Daly, 360 ; Taylor v. Taylor, 3 Bradf. 54; 3 Wait’s Act. & Def. 251; 2 id. 398; Chitty on Cont. [10th ed.] 101; 1 Pars. on Cont. 130 ; 2 id. 530; 3 Redf. on Wills, 302, § 11; Id. 276, 277; Sugden on Vendors, 180; Willard on Exrs. 1466; Wright v. Holbrook, 32 N. Y. 587.) The defendant, by exercising reasonable promptness, could have rebuilt in time to have enabled the plaintiff to use the property for a portion of his unexpired term of eight months. (Tobias v. Lissberger, 105 N. Y. 404.) It was proper for the plaintiff to show that up to the time of the fire he had been doing a constantly increasing business. (Dart v. Laimbeer, 107 N. Y. 664, 665.) Evidence tending to prove the profits which had been made by the plaintiff for the year immediately preceding the fire by the use of this property, was competent upon the question of what the future profits would probably have been, and assisted in establishing the amount of plaintiff’s damage. (Dart v. Laimbeer, 107 N. Y. 664; Bagley v. Smith, 10 id. 499; Wakeman v. W., etc., Co., 101 id. 205; 1 Suth. on Dam. 113; Scheel v. Brokhaus, 80 N. Y. 614; Young v. Hurd, 16 N. Y. S. R. 385 ; Ganson v. Tefft, 71 N. Y. 48; Townsend v. N. W. Co., 117 Mass. 501; Drucker v. M. R. R. Co., 106 N. Y. 157; Griffin v. Colver, 16 id. 497; Taylor v. Bradley, 39 id. 145.) The objection to the competency of opinion evidence to prove the value of a leasehold interest, is untenable. (Bedell v. L. I. R. R. Co., 44 N. Y. 370; Clark v. Baird, 9 N. Y. 183; Robertson v. Knapp, 35 id. 91; Joy v. Hopkins, 5 Den. 84; Ganson v. Tifft, 71 N. Y. 48; Mitchell v. Read, 84 id. 556.) The objection that the plaintiff cannot recover, for the reason that he has failed to prove that if the building had been reconstructed before the expiration of his term, he would have had time to take possession, recall the old or obtain new customers, and make some money over and above his expenses and rent,. leaving him ample time to move out and surrender the premises on the 1st of November, 1883, is untenable. (Devendorf v. Wirt, 42 Barb. 227; Mills v. Gould, 10 J. & S. 123; 1 Sedg. on Dam. [7th ed.] 200; McMaster v. State, 108 N. Y. 556; Drucker v. M. R. R. Co., 106 id. 163 ; Savery v. Ingersoll, 46 Hun, 176.) Susan Dunlop was an infant at the time the lease was signed, and did not come of age until some months after, and, therefore, could not authorize Wallace to sign a lease for her so as to make it binding. (2 R. S. 139, § 6 ; Post v. Martens, 2 Robt. 437; Porter v. Bleiler, 17 Barb. 154.)</p>

The nature of the action and the facts, so far as material are stated in the opinion. The court erred in directing a verdict for the respondent. (Devoe v. Brandt, 53 N. Y. 462, 465; Hennequin v. Naylor, 24 id. 139; Wright v. Brown, 67 id. 1.) The appellants were not precluded by the action in the city court from maintaining this action.

The nature of the action and the facts, so far as material, are stated in the opinion. .The note in the hands of Leman Calkins the principal maker, with Crandall’s name on it as surety, was not valid as a note, but it carried on its face notice that it had never been negotiated and that neither Kellie Petit nor bearer had ever held it, and that it never had had an inception.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 6, 1890, which affirmed a decree of the Surrogate’s Court of the county of New York, construing the will and a codicil thereto of Jane E. lieleman, deceased.</p> <p>The testatrix, by her will, executed February 18, 1889, gave legacies to four charitable institutions, and to one of them gave her residuary estate. On February 22, 1889, she made a codicil thereto as follows: “ Doubts having arisen as to the validity of the bequests made for charitable purposes in my. said will, 1 hereby modify said will dated February 18, 1889, by making my friend Townsend Wandell my residuary legatee and devisee, and hereby request him to carry into effect my wishes with respect thereto, but this is not to be construed into an absolute direction'on my part, but merely my desire * * -x-_” K. died March 18, 1889. The will and codicils having been offered for probate her next of kin put in an answer oy which they put in issue the validity of the charitable bequests on the ground that they were made less than two months prior to the death of the testatrix, and alleging that the residuary gift in the codicils was void, on the ground that if accepted by the residuary legatee for the purpose of carrying out the request it was a fraud upon the law and an evasion of the statute, and if the bequest was accepted and the request repudiated, the bequest would operate as a fraud upon the testatrix and the next of kin, and prayed that the testatrix be decreed to have died intestate as to the residuary estate.</p> <p>Upon the hearing extrinsic evidence was admitted as to conversations with and statements made by the testatrix in relation to the codicil for the purpose, as stated by the surrogate in his opinion, “ of ascertaining whether or not, by matter de hors the will or codicil, a trust was imposed upon the residuary legatee which it would be a fraud upon the testatrix for him to ignore or disregard.” The surrogate decided the codicil to be an absolute bequest to Wandell of the residuary estate, the validity of which could not be attacked by the next of kin.</p> <p>The next of kin have the right upon the probate of the will to raise the question of construction. (Code Civ. Pro. § 2624; In re Bawer, 113 N. Y. 569, 573 ; In re Fuller, 5 N. Y. Supp. 46.) A bequest or devise to a corporation or society for benevolent, charitable, scientific or missionary purposes, organized under chapter 319 of the Laws of 1848 (wlficli forms part of chapter 18, part" first of the Revised States), or under acts subjecting them to the restrictions contained in that act, is invalid unless the will containing the bequest is executed at least two months before the death of the téstator. (Laws of 1848, chap. 319, § 6 ; 2 R. S. [5th ed.] 624, 625, § 6; Le Ferre v. Le Ferre, 59 N. Y. 434-448 ; Kerr v. Dougherty, 79 id. 327, 336.) A corporation or society for either of above purposes cannot take real or personal estate by devise or bequest unless expressly authorized by its charter or by statute. (2 R. S. [4th ed.] 241, § 3; Wright v. Trustees, 1 Hoft. 201-224; Theo. Sem. v. Childs, 4 Paige, 419; 2 Kent’s Comm. 298; 2 R. S. [5th ed.] 596, §§ 1, 2, 3 ; Halstead v. Mayor, etc., 3 N. Y. 433.) The American Society for the Prevention of Cruelty to Animals and the Methodist Episcopal Church Home, being neither of them empowered by charter or statute to take personal estate by bequest, and the last named society being subject to the restrictions in the 18th chapter of the first part of the Revised Statutes (in wlficli is embodied chapter 319 of the Laws of 1848), it follows that the two bequests of $5,000 each made to them are invalid, and also the bequest of the residuary estate in the-ninth clause of said will to the said church home. (Laws of 1851, chap. 225 ; Laws of 1866, chap. 469 ; Laws of 1871, chap. 76; 2 R. S. [5th ed.] 624, 625, § 6; Kerr v. Doughtery, 79 N. Y. 327-339.) These bequests being so invalid and void, cannot be validated and made operative by means of the codicil of February twenty-second, making Townsend Wandell residuary legatee in place of said church home, for that simply created a trust to carry out the invalid legacies and is equally invalid in law. (In re O’Hara, 95 N. Y. 403, 412, 415, 420, 421, 422; 23 id. 609, 611; Riker v. Leo, 115 id. 93, 98; 1 Williams on Ex. 88 ; Van Dyke v. Van Beuren, 1 Caines, 84.) These bequests of $5,000 each and the residuary estate should be distributed to the next of kin as property not effectually disposed of by will, and under the resulting trust in favor of the next of kin. (6 Paige, 608; 10 id. 193, 200; In re O’Hara, 95 N. Y. 411.) The surrogate erred in refusing to allow the witness Tichenor to state what he said to the testatrix with reference to this codicil before she spoke to him about it. (Code Civ. Pro. § 835 ; In re Chapman, 27 Hun, 573.) The surrogate erred in refusing to pass upon the requests to find matters of fact and conclusions of law presented by the contestants upon the settlement of the case. (Code Civ. Pro. § 2545 ; Burger v. Burger, 111 N. Y. 527; Augevine v. Jackson, 103 id. 470.) Parol and extrinsic evidence is always admissible to impeach the validity of a will or any part of it. (1 Bradf. 360; 2 Redf. 1; 95 N. Y. 411, 412; 27 Hun, 573; 16 id. 628.)</p> <p>This will was duly proved. To admit parol evidence to show the meaning of the will would be to allow to be established by parol what the law requires to be in writing and thus array the law against itself. (3 R. S. 3343, §§ 7, 8.) The law does not authorize the surrogate to try an issue with the view to impress a trust upon the property bequeathed in and by the will. (Code Civ. Pro. §§ 2472, 2624; Laws of 1870, chap. 359, § 11; Redf. on Surrogates [4th ed.], 53; In re McLaughlin, 1 Tuck. 79 ; In re Gilman, 38 Barb. 364; Nelson v. McGiffert, 3 Barb. Ch. 158; In re Forman, 54 Barb. 274; Bevan v. Cooper, 72 N. Y. 317; Waters v. Cullen, 2 Bradf. 254; Hillis v. Hillis, 16 Hun, 76; Laws of 1880, chap. 245, § 46; Riggs v. Cragg, 89 N. Y. 479 ; In re Underhill, 117 id. 471; In re Vowers, 113 id. 573.) The surrogate having stated his findings of fact and conclusions of law separately upon his admission of the will and codicils to prohate, and having construed the will and codicils as stated in the decree appealed from, he did all that the law required of him. (Burger v. Burger, 111 N. Y. 527.) The exceptions relating to conversations between the deceased and her counsel were not well taken. (Code Civ. Pro. § 835.) The ninth clause and probably also the fifth clause of the will was revoked by the first codicil, which recited that “ doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modify my said will, dated February 18, 1889.” And both were rendered void by the death of tlm testatrix within two months. (Laws of 1848, chap. 319, § 6 ; 1 Jarman on Wills, 333 ; 1 Redf. on Wills, 175; 2 Story’s Eq. Juris. 286, § 1069; Shultz’s Appeal, 80 Penn. St. 405 ; Rowbotham v. Dunnett, L. R. [8 Ch. Div.] 430; Jones v. Bradley, 3 id. 364 ; Knight v. Knight, 3 Beav. 148, 172, 174 11 Cl. & Fin. 513 ; 2 Pom. Eq. Juris. § 1015 ; Ex parte Payne. 2 Y. & C. 636; Lechman v. Lave, 2 M. & K. 197; Phillips v. Phillips, 112 N. Y. 205 ; Lawrence v. Cook, 104 id. 639 ; Warner v. Bates, 98 Mass. 277; Malim v. Keighley, 2 Ves. Ch. 532; Williams v. Williams, 1 Sim. [N. S.] 358; McKinley’s Appeal, 13 Penn. St. 253; Erickson v. Willard, 1 N. H. 217; Van Amee v. Jackson, 35 Vt. 173.) The general residuary clause in the first codicil included any property or interest of the testatrix which are not otherwise perfectly disposed of, and all that for any reason eventually falls into the general residue. (Riker v. Cornwell, 113 N. Y. 115 ; Cruikshank v. Home for Friendless, Id. 355 ; In re Bennett, Id. 524.)</p>

' Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 11,1889, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term. This action was brought to recover back the amount paid by plaintiff on a contract for the purchase of certain premises. The facts, so far as material, are stated in the opinion.

The appellants, being judgment creditors of Henry W. Perine, an insolvent debtor, brought an action to set aside an assignment made by him for the benefit of his creditors, as fraudulent, in which they were eventually defeated. Before the action was commenced they had made proof of .their claims before the assignee. The deed of assignment provided for certain preferences in payments from the assigned estate, but these appellants were not among the creditors preferred.

This action Avas brought to recover damages to plaintiff’s premises in Brooklyn, caused by the erection and operation of defendant’s elevated railroad upon the street in front of them. The facts, so far as material, are stated in the opinion. Permitting the reading of the article from the newspaper was error and sufficient ground for granting a new trial. (Koelges v. G. L. Ins. Co., 57 N. Y. 638 ; Ins.

This action was brought to recover damages, for alleged negligence causing the death of John Butler, plaintiff’s intestate, who was a ship caulker in the employ of defendants. It appeared that said Butler’s death was caused by the breaking of a plank, forming part of the staging erected around the hull of a vessel upon which he was at work. _ The further material facts are stated in the opinion.

The facts, so far as material, are stated in the opinion. The exception to the admission as evidence of the books of account of the Good-willie-Wyman Company was.well taken.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff has a right to bring this action. (Laws of 1845, chap. 150, § 1; Code. Civ. Pro. § 419.) The plaintiff being a nation of Indians, the Statute of Limitations does not apply to or affect its right to bring this action. (McGammon v. Straghtley, 32 Kan. 524; 5 Pet. 4; 1 Dill. 349; 5 Wall. 761.) No title to Indian lands can be acquired by adverse possession or prescription.

The facts, so far as material, are stated in the opinion. The structure of a surface railroad in a street is not assessable for a pavement thereof under the laws of this state. (Laws of 1813, chap. 86, § 175; Laws of 1882, chap. 410, §§ 869, 870, 878, 879, 915 ; In re Second Avenue Church, 66 N. Y. 395 ; In re Cram, 69 id. 452; In re Schell, 76 id. 432.) The railroad structure was not benefited by the paving, and the board of assessors have so determined.

The facts, so far as material, are set forth in the opinion. The objection that the provisions of the charter are unconstitutional, is not tenable. Private property is not, therefore, taken for public use without just compensation, or without due process of law. (Const. N. Y. art. 1, § 36 ; People ex rel. v. Mayor, etc., 4 N. Y. 419 ; Brewster v. City of Syracuse, 19 N. Y. 116; Litchfield v. Vernon, 41 N. Y. 123 ; People ex rel. v. Lawrence, id. 137, 141; 2 Dillion on Mun.

<p>A person whose property is assessable and has been assessed in a town, who fails to appear before the board of assessors on “ grievance day” is guilty of laches that will warrant a refusal to grant him any relief in a subsequent application to reduce such assessment.</p> <p>The act of 1881 (Chap. 597, Laws of 1881), “fixing the manner of assessing certain real estate of telegraph companies,” was superceded by the act of 1886 (Chap. 659, Laws of 1886), providing for the assessment of telegraph and other companies named.</p> <p>The latter act is to be construed in connection with the act of 1881 (Chap. 361, Laws of 1881), providing for taxing telegraph and other companies for state purposes.</p> <p>Under the provisions in said act of 1886 providing that -the portion of a telegraph line in any town or ward shall be assessed “in the manner provided by law for the assessment of lands of resident owners ” (§ 1), and that the word “lines” shall include “the interest in the lands on</p> <p>- which the poles stand, the right or license to erect such poles, all poles, arms, insulators, wires, instruments or other things connected with or used as part of each line ” (§ 2), the property specified is to be assessed “ at its full and true value” (1 R. S. 392, § 17).</p> <p>It is not to be regarded as part of a whole or as a complete telegraph line in operation, and its value for telegraph purposes, its position, -connections and productive capacity may not properly be taken into considderation, as these considerations enter into the question of the value of the business and franchises of the company, provision for the taxation of which is otherwise made (Chap. 361, Laws of 1881).</p> <p>The measure of the value of the “poles, arms, insulators, apparatus, instruments and wires,” as they are capable of indefinite reproduction ata known cost, is this cost, including the requisite expenditure for labor to set them up ready for use, and when the value is thus shown by uncontradicted evidence it must be taken.</p> <p>In arriving at the value of the .interest in the land on which the poles stand and of the right or license to erect such poles, it is to be considered that so far as the line is erected upon a highway the only interest the telegraph company basis a mere license revocable at the pleasure of the legislature, of which. license any other similar company may avail itself. The cost which the company incurred in obtaining the interest is the correct criterion by which to judge of its value.</p> <p>.It seems that where poles are placed on the land of an individual the price paid or the amount of any liability incurred therefor will be good evidence of the value of the right.</p> <p>The distinction between such a case and that of the assessment for taxation of the property of a railroad or bridge company pointed out.</p> <p>As for t-Iie purposes of an appeal, a judgment in proceedings by certiorari to review an assessment under the act of 1880 (Chap. 269, Laws of 1880) is to be considered as an order, and as an appeal is provided for by said act, the fact that the judgment does not involve $500 does not affect its appealability.</p>

The facts, so far as material, are stated in the opinion. Park policemen have the same right as the regular police of the city to hold their positions unless removed by due process of law.

- Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, in favor of plaintiff, entered upon an order made the first Tuesday of January, 1891, which denied a motion for a new trial on exceptions ordered to be heard in the first instance at General Term, and directed judgment on a verdict. This action was brought to recover the value of certain personal property alleged to belong to plaintiff and to have been converted by defendant.

The notice of the action and the allegation of the complaint, so far as material, sufficiently appear in the opinion.

In December, 1887, Francis M. Hopper presented his verified petition to the surrogate of the county of New York, in which he alleged that Jacob Straut, late of the city of Hew York, died on the 6th day of April, 1857, leaving a last will and testament which was duly approved and admitted to probate on the 9th day of September thereafter; that in the will Edward J. Straut, Isaac Onderdonk and Jacob Cooper were appointed executors and trustees; that Cooper renounced and never…

■ This action was brought to procure a judicial construction of tixe will and codicil of John Guy Yassar, deceased. The clauses of the will and codicil in question are as follows: “ Having no lineal heirs, my desire and aim, in the disposition of my property, are to do the most good and to forward the cause of humanity.” “ 7.

The facts, so far as material, are stated in the opinion. The photographs and the evidence given under them are but the mere conclusions of the witnesses and, as such, not competent. (People v. Buddenseick, 103 N. Y. 487, 500.) When a layman is examined as to facts within his own knowledge and observation, tending to show the soundness or unsoundness of the testator’s mind, he may characterize as rational or irrational the acts and declarations to which he testifies.

The complaint in this action alleges in substance that plaintiff is the son and only heir at law of Catharine A. Valentine, Avho died intestate; that prior to ¡November, 1883, said Catharine A. Valentine Avas seized in fee of certain premises in the city of Brooklyn; that on June 7, 1886, through the fraud and undue influence of defendant ¡Richardt, she Aims induced to and did convey said premises to him without consideration ;• that on October 27, 1886, after said deed had…

The facts, so far as material, are stated in the opinion. The evidence was insufficient to warrant a conviction, because it did not show that the complainant resisted “ to the utmost of her ability at the time and under the circumstances surrounding her.” (People v. Abbott, 19 Wend. 192; People v. Morrison, 1 Park. 644; People v. Dohring, 59 N. Y. 374; People v. Hulse, 3 Hill, 316; People v. Quinn, 50 Barb. 128 ; Penal Code, § 278; Higgins v. People, 58 N. Y. 377.) The court…

<p>Double commissions to the same person, as executor and trustee, are to be awarded only when the will contemplates a several and separable action in each capacity, not at the same time, but at different stages of the administration.</p> <p>The performance of a trust may be added to the ordinary duties of art executor in such a manner that the two functions run on together, and where a will makes no separation, but thus blends the two duties, single commissions only are allowable.</p> <p>It is thr duty of an executor, as such, to pay to a legatee the amount of the legacy, in the manner and at the time provided by the testator, and that duty is not changed by the fact that the payment of the principal ig postponed and the income made payable annually in the meantime; the trust duty thus imposed becomes a function of the office of executor.</p> <p>The will of P. gave his entire estate in trust, and directed the " executors and trustees hereinafter named ” to retain it undivided until the period of distribution, and meanwhile to pay funeral expenses, debts, accruing taxes, repairs, reasonable insurance, one fixed and definite annuity and aliquot parts of the net accruing income to beneficiaries named until the final distribution. Upon an accounting the executors were allowed double commissions. Held, error.</p> <p>The bulk of the estate came to the executors invested in securities which had not been turned into fiioney. Tko ekecutors were allowed half-commissions upon the estimated value of the securities for receiving so much of the funds of the estate. Held, error; that such allowance in .advance of the conversion of the securities into money for the purposes of payment, or of acceptance of them by the legatees as payment was premature and not justified.</p> <p>It seems that such an allowance upon all sums of money received would have been proper.</p> <p>In re Mason (98 N. Y. 536), distinguished.</p> <p>The surrogate allowed to each executor full commissions upon the income received and paid out; this did not exceed $100,000., Held, error,</p> <p>.In re Willetts (112 N. Y. 289), distinguished.</p>

This tyas an action upon a guaranty. In November, 1886, the plaintiffs, as copartners, were dealers in millr in Delaware county, under the name of George E. Beakes. Chester L. Ketcham was a retail dealer in milk in the city of New York, who had been dealing in plaintiffs’ milk.

<p>Appeal from judgment of the General Term of the Supreme "Court in-the second judicial department, entered upon an order made December 10, 1889, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term dismissing the complaint.</p> <p>This action was brought by the attorney-general in the name of the people against defendants who were executors and trustees under the will of Samuel Wood, deceased.</p> <p>The complaint alleged in substance the execution by said Wood of a will and codicil thereto, which were admitted to probate, and that letters were issued to the executors named that subsequently a collusive action was commenced by one of the executors named in both the will and codicil, and the only ■surviving one of four named in the codicil, two of them having died and a fourth having refused to qualify, against Edward T. Schenck, an executor named in the will, but superceded by the codicil, to have the codicil declared invalid. The answer in said action admitted the allegations of the complaint, and upon the report of a referee before whom no contest was made, a judgment was rendered declaring said codicil to be void; that said Schenck had succeeded in delaying the recording of said will and codicil, and on presentation to the surrogate of the will and the collusive judgment, he procured said will to be recorded without the codicil and letters testamentary to be issued to the two executors, parties to said action, and that the codicil has been lost or destroyed. The complaint then alleged waste, mismanagement and misappropriation of the property of the estate by said executor; that none of the charitable trusts provided for by the will and codicil have been carried out, and that they are endeavoring to appropriate the estate.</p> <p>The relief asked was that the court: (1) Establish the said codicil as a lost or destroyed will and direct the same to be recorded by the surrogate of New York county. (2) Declare, establish, preserve and enforce the charitable trusts created by said testator and vacate and adjudge void the aforesaid records of this court purporting to be a judgment setting aside said codicil and a judgment invalidating said charitable devises. (3) Ascertain whether there is in existence any corporation entitled to-receive the residuary estate of said testator, and if not, provide for the creation of such corporation. (4) Remove said defendants from office as testamentary trustees and appoint new trustees to execute the duties thereof. (5) Take in charge the trust property and administer the same by its officer or officers and appoint a receiver thereof pending this action, (6) Declare fraudulent, illegal and void the aforesaid conveyances of the testator’s property to the defendants, and direct the record thereof to be canceled. (7) Require the defendants and each of them to account for and pay over and transfer to the officers appointed by the court, all moneys, property and values of every kind which they have illegally acquired or converted to their own use, and all moneys with which they are chargeable or which they have lost or wasted. (8) Enjoin said defendants from acting in any way as testamentary trustees under said will and from disposing of or in any way collecting or interfering with any of the property, which was said testator’s or wdiich is of his estate. (9) Such other arid further relief at any stage of this action as is proper, including amendments to bring in any other parties necessary to a complete adjudication of the subject-matter.</p> <p>The material portions of the will and codicil, and the facts pertinent to the question, are stated in the opinion.</p> <p>If the provisions of this will for the charity are valid to any extent, there is no question .as to the right as well as the duty of the people to bring and maintain this action. (Owens v. M. Society, 14 N. Y. 408 ; Perry on Trusts, § 732.) The provisions (of the will and codicil) for the public charity are valid as to all the funds which will constitute the residuary estate. (Owens v. M. Society, 14 N. Y. 408; Beekman v. Bonsor, 23 id. 310; Laws of 1875, chap. 176 ; Winter v. Perratt, 6 M. & G. 350; Smith v. Bell, 6 Pet. 68; Taggart v. Murray, 53 N. Y. 236 ; Wager v. Wager, 96 id. 172; Perry on Trusts, §§ 629, 630; 2 Story’s Eq. Juris. § 1165 ; Riker v. Leo, 115 N. Y. 103.) The codicil did not contemplate that the corporation should be •created by special charter. (Cruikshank v. Home for Friendless, 113 N. Y. 327; Shipman v. Rollins, 98 id. 311.) The corporation formed by testator could take the whole residuary estate. (Laws of 1875, chap. 176 ; Lefevre v. Lefevre, 59 N. Y. 440.) A corporation to be immediately formed by the executors could take the whole residuary estate. (Robert v. Corning, 89 N. Y. 225.) A corporation organized at any time prior to the death of the life tenants would ultimately take the funds put in trust for two lives. (Shipman v. Rollins, 98 N. Y. 311.)</p> <p>The offers of the plaintiffs to introduce proof on the trial at the Special Term was properly refused. (Laws of 1875, chap. 176; Mann v. Mann, 14 Johns. 1, 9 ; Arthur v. Arthur, 10 Barb. 9 ; In re Kelemen, 57 Hun, 165 ; 113 N. Y. 337.) The provision contained in the second subdivision of the seventh clause of the Avill for the establishment of the Samuel Wood 'Benevolent Institute (changed by the codicil to be applied to the founding of a college of music) was void, on the ground that it violated the statute against perpetuities. So far as the real estate was concerned the power of alienation was suspended for more than two lives. So far as the personal property wes concerned, the absolute ownership was suspended for more than two lives. (Cruikshank v. Home for Friendless, 113 N. Y. 337 ; Holland v. Alcock, 103 id. 312; 1 R. S. [6th ed.] 723, 1101, § 15.) It is void also for its being within the discretion of the trustees to administer the trusts, and could not be enforced in a court. (In re Will of O'Hara, 95 N. Y. 403; Prichard v. Thomson, Id. 76, 80, 81; Beekman v. Bonsor, 23 id. 298; Hewlett v. Elmer, 103 id. 156, 160; Tilden v. Tilden, 54 Hun, 231.) It is equally void for uncertainty and 'indefiniteness both as to the subject and object of the bequest. (1 Jarman on Wills, 319.) The provision for the benevolent institute cannot be upheld under any law of charitable uses. (Gottman v. Grace, 112 N. Y. 299, 306; Holmes v. Mead, 52 id. 332; Bascom v. Albertson, 34 id. 584.) The p*o visions in the will and codicil in question are not such as to give the people any right to intervene. (Dartmouth College v. Woodward, 4 Wheat. 608; People v. Booth, 32 N. Y. 397; Purdy v. People, 4 Hill, 396; People v. Ingersoll, 58 N. Y. 1, 13-17; People v. Clark, 53 Barb. 171, 176.)</p> <p>The disposition of the residuary estate was void. (Cruikshank v. Home for Friendless, 113 N. Y. 352; Burrill v. Boardman, 43 id. 254; Shipman v. Rollins, 98 id. 311; Holland v. Alcock, 108 id. 312; Prichard v. Thompson, 95 id. 76 ; Holmes v. Mead, 52 id. 332; Levy v. Levy, 33 id. 107; Mayor, etc., v. Simonson, 55 Hun, 204 ; 119 N. Y. 660; Wetmore v. Parker, 52 id. 450, 460.) The gift was void for indefiniteness. (Bascom v. Albertson, 34 N. Y. 588; Beekman v. Bond, 23 id. 305.)</p>

This was a proceeding to compel the treasurer and receiver of taxes of Long Island City to accept “ improvement certificates ” issued by it in redemption of lands owned by the relator which had been sold for non-payment of assessments levied thereon under chapter 326 of the Laws of 1814. The facts, so far as material, are stated in the opinion. The assessment was paid at the time of the sale, and by such payment extinguished.

The nature of the action and the facts, so far as material, are stated in the opinion. The accounts between the plaintiffs and the bank were accounts stated, binding on the plaintiffs, and cannot be impeached except for fraud or-mistake, and the burden of proof was on the plaintiffs to show such fraud or mistake.

The facts, so far as material, are stated in the opinion The only limitation upon the rights of suitors to successive trials in ejectment in this state is fóund in the provisions of the Code of Civil Procedure relating to actions for the recovery of real property; and the unsuccessful party in such an action is, after the trial of an issue of fact, entitled, as a matter of course, to have the judgment vacated and one new trial awarded. (Code Civ.

This was an action by a taxpayer of the city of Brooklyn against its mayor, comptroller and auditor, and the Long Island Water Supply Company to annul a contract by said officials with said company for -the purchase for or on behalf of said city of the property, franchises, etc., of said company. The contract in question was entered into by said officials December 22,1890, they claiming to act under authority of the act of 1886.

Appeal-from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 8, 1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury.

<p>The office of an appeal from a determination of commissioners of highways laying out a highway, is to review the determination upon the merits; the referees appointed thereupon are confined to an examination on the merits and are hound to proceed upon the assumption that the order of the commissioners is valid.</p> <p>The office of a writ of certiorari to review such a determination is to decide questions of law. The court may inquire as to the jurisdiction of the commissioner,whether he pursued the mode required by law, whether any legal rules were violated to the prejudice oí the relator, and it may examine the facts so far as to ascertain whether the determination was supported hy evidence or was against the prepondering weight of evidence. (Code Civ. Pro. § 2140.)</p> <p>The two remedies, therefore, are not inconsistent and may be pursued concurrently.</p> <p>Such determination is final and binding when made, recorded and posted within the meaning of the provision of the Code of Civil Procedure (§ 2125), which requires that a certiorari to review it must be granted and served within four months after the determination becomes binding upon the relator or the person whom he represents; and the fact that an appeal has been brought to review the order does not suspend, during its pendency, the running of the statute.</p> <p>Where, therefore, shortly after the making of an order by highway commissioners laying out a highway, an appeal was taken therefrom and within four months after the referees appointed thereon made their decision affirming the order of the commissioners, but nearly a year after said order was made, a writ of certiorari was issued, held, that the writ was properly quashed.</p>

an order denying a motion for a new trial. This action was brought to recover damages for the killing of plaintiff’s cattle which had strayed upon defendant’s tracks through its failure to maintain fences along its track as required ¡by the statute. The facts, so far as material, are stated in the opinion.

<p>The rules of pleading in equity, while the same in form with those in actions at law, are broader and more elastic by reason of the character of the relief which may be sought and given, and, as a general rule, all persons materially interested, either legally or beneficially, in the sub- ' ject-matter of a suit in equity, are proper parties to it, so that there may be a complete decree binding all.</p> <p>Where a plaintiff in such an action knows that a third person claims an interest in the subject-matter, but does not know the nature, extent or merits of the claim, these facts may be stated, the claimant called in as a party and required to disclose his alleged interest.</p> <p>This rule applies to actions of partition, and while, under the Code of Civil Procedure (§ 1542), it is required that the rights of the parties be stated “so far as they are known to the plaintiffs,” where the interests of a claimant are not known, it may properly and can only be described as a “claim.”</p> <p>Prima facie, and in the absence of a contrary explanation, all persons who either are or claim to be interested in premises sought to be partitioned are affected by a demand for a sale and division of the proceeds; the cause of action pleaded affects or concerns them, and so, becomes a good cause of action for a partition as against them.</p> <p>Where, therefore, in an action of partition brought by one of several tenants in common, the complaint alleged that the property was of such a character and so situated as to-make actual partition impossible except with grave injury to the interests of the owners, and, therefore, asked a sale and division of the proceeds, and other parties besides plaintiff’s co-tenants were made defendants, the complaint alleging that said parties “claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff and which is a cloud upon the title to said premises,” and asking that they be adjudged to have no interest in the property, held, that such other persons were properly made parties defendant, and the complaint stated a good cause of action against them; that if the interest claimed by either of said defendants was of such a nature as to be totally unaffected by the partition sought, this should be asserted by answer; and that each of said defendants should in the same manner disclose his alleged interest.</p>

Appeal by Calvin B. Camp from an order of the General Term of the Supreme Court in the second judicial department, made May 24, 1890, which modified, and as modified, affirmed a decree of the surrogate of Kings county, made upon an accounting by the appellant as guardian of the petitioner, William C. Camp.

The issuance of a peremptory writ of mandamus is authorized or justified only by the presentation of facts proving that the relator has a clear and plain right beyond the touch of a doubt or question, to the performance of the act demanded and that the duty, equally unquestionable, rests upon the person or body to be commanded to perform such particular act. (High on Ex. Leg. Rem. §§ 9, 10, 32; People ex rel. v. Bd.

Court in the first judicial department, entered upon an order-made December 29,1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury. This action was brought by plaintiff, as assignee of the firm of William T. Coleman & Co., of San Francisco, to recoveithe sum of $25,000 and interest alleged to have been loaned and advanced by said firm to defendant who ivas, at the time, one of its members.

The requirements of the writ and the material facts are stated in the opinion. A mandamus will issue against a public officer only to compel the performance of a duty plainly devolved upon him by law. Flo duty has been by law cast upon the registrar of arrears to cancel a sale. (Laws of 1888, chap. 583; People v. Thompson, 98 N. Y. 6, 11; People v. Supervisors, 11 id. 563, 575; People v. Hawkins, 46 id. 10.) The sale was valid.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made ¡November 4, 1889, which affirmed a judgment refusing to admit to probate the will of Milton Budlong, deceased, entered upon a verdict, and also from an order of said General Term, made August 12, 1887, which reversed the decree of the surrogate of Monroe county, admitting to probate said (vill and granting a new trial, and from an order of said court made February 28, 1889, which denied a motion for a new trial on the minutes, and from another order of said court made December 28, 1888.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The testator had the right to make this will, however capricious, cruel, or unjust it may be regarded by the opinions of others; nor will its validity depend either on the justice of lois prejudices or the soundness of his reasoning, or even necessarily upon a mistake of fact on his part. (Reynolds v. Root, 62 Barb. 253 ; Clapp v. Fullerton, 34 N. Y. 190 ; Horn v. Pullman, 72 id. 269; Brick v. Brick, 66 id. 144.) It was a radical and fundamental error of both General Terms — especially the former — that in deciding the case they failed to discriminate between a mere supposed general influence by proponents upon their father, which though it might be claimed to be prejudicial to the contestant, was not consciously exerted for the purpose of affecting his testamentary intentions regarding her ; and an influence specially directed to the matter of influencing him in the' particular matter of making his will. And in assuming that the former kind of influence would, if it existed, render the will invalid as well as the latter. ( Woodward v. Jones, 9 Strob. 522; Seguine v. Seguine, 4 Abb. Ct. App. Dec. 191; Porter v. McAlpine, 3 Dem. 114; Wade v. Holbrook, 3 Redf. 378; Booth v. Kitchen, Id. 352; McCoy v. McCoy, 4 id. 58 ; In re Smith, 3 N. Y. S. R. 137; In re Hatton, Id. 213 ; Moore v. Bleauvelt, 15 N. J. Eq. 359; Shouler on Wills, § 232.) Decedent lived nearly four months after the will was executed. After the will was made and executed, and during and after his recovery from his sickness, he frequently referred to the will and its provisions, and expressed himself as satisfied therewith, and refused to change it in any particular. This negatives the idea of undue influence. (Floyd v. Floyd, 3 Strob. 44; Small v. Small, 4 Greenl. 230.) The claim of undue influence and fraud is untenable. (9 Strob. 352; Brick v. Brick, 66 N. Y. 144; C. A. Society v. Loveridge, 70 id. 387; Hazard v. Hefford, 2 Hun, 445 ; Booth v. Kitchen, 3 Redf. 67; Merritt v. Rolston, Id. 220 ; In re Martin, 98 N. Y. 193; Lathan v. Udell, 38 Mich. 258.) The trial court on the second trial before the jury erred in admitting evidence of alleged conduct, admissions or declarations of each proponent severally, made (if made or done at all) separately and apart from the other proponents, and received against the interests of said other proponents. The interest of each proponent in their bequests and devises was a separate and not joint interest. (Schouler on Wills, § 244.) It is submitted that error was committed also in the reception of many letters in evidence, written by Mrs. Louisa Budlong (as the amanuensis of Milton Budlong as was claimed) to his daughter, Mrs. Cole and proven by her testimony. (Code Civ. Pro. § 829.) The testimony of George D. Cole, relating to conversations, etc., had between him and decedent was incompetent and inadmissible, and in violation of Section 829 of the Code of Civil Procedure, and the exceptions thereto were well taken. (Steele v. Ward, 30 Hun, 555 ; In re Hewett, 21 Wkly. Dig. 296.) The court erred in charging that if the will was unnatural, it cast upon proponents the burden of showing some reasonable explanation of its unnatural character; or at least showing that it was not a result of mental defect, obliquity or perversion. (Zimlich v. Zimlich, 14 S. W. Rep. 837.) The requests to charge as to undue influence stated sound and cor.rect principles of law, which had not been sufficiently stated by the-court to the jury. (Schouler on Wills, § 225 ; Lathan v. Udell, 38 Mich. 258; Schailer v. Brumstead, 99 Mass. 121.)</p> <p>This court cannot review the judgment of the Supreme Court reversing a decree of the surrogate admitting a will to probate and awarding issues of' fact to be tried .by a jury. (Code Civ. Pro. §§ 2585, 2588; Sutton v. Ray, 72 N. Y. 482; Burger v. Burger, 111 id. 523; Marvin v. Marvin, 3 Abb. Ct. App. Dec. 192; In re Ross, 87 N. Y. 514.) The court properly submitted to the jury the question of the intent with which Levi made the charges against Mrs. Cole to his father. (Dexter v. Spear, 4 Mason, 115 ; Starkie on Ev. 572 ; A. P. R. Co. v. Douglass, 12 Barb. 557; 1 Bishop on Crim. Law, § 368.) The propom ents’ exception to the charge that if at the time Levi wrote this letter, he knew the contents of it to be untrue, and hé wrote it with a design that it should reach his father and influence him in the disposition of his property, and it did in fact reach his father and influence him to disinherit Mrs. Cole, the jury should answer the last question in the affirmative, is unavailable. (Redf. on Wills, 522 ; Tyler v. Gardiner, 35 N. Y. 559.) If there was any evidence that these brothers entered into a combination and confederacy to prejudice Mrs. Cole in the estimation of her father, and he was thereby induced to make this will, the rulings of the court upon the admission of their declarations and the submission of the question of a conspiracy to the jury were correct. (1 Greenl on Ev. § 111.) The declarations of the proponents were admissible upon other grounds than a conspiracy. (1 Redf. on Wills, 537 ; Julke v. Adam, 1 Redf. 460.) The charge of the court that, if under all the circumstances of the case the jury found that this will was unnatural in its provisions and inconsistent with the duties and obligations of the testator to the different members of his family, it imposed upon the proponents the duty of giving some reasonable explanation of its unnatural character, or, at least, of showing, that it was not the result of mental defect, obliquity, or perversion, was correct. (1 Redf. on Wills, 537 ; Harrel v. Harrel, 1 Duvall, 203 ; Mundy v. Taylor, 7 Bush, 491; Mowey v. Siber, 2 Bradf. 133 ; Lee v. Dill, 11 Abb. Pr. 214; 35 N. Y. 593.)</p>

The relator is a corporation organized under a special act of the legislature of 1864 (Chap. 316, Laws of 1864), doing business as a trust company in the city of Mew York. On the second Monday in January, 1889, it furnished to the commissioners of taxes and assessment a detailed statement of its assets and liabilities which was duly sworn to, and claimed that all its capital stock and surplus, being invested in United States securities, was exempt.

This was an action upon a certificate of membership issued by defendant to John Roberts, late of the city of Buffalo. The certificate provided that defendant should pay the amount of insurance stated within sixty days after due notice and satisfactory proof of the death of the insured. It also provided that if the death of the insured was caused by the use of intoxicating drink, it should be void.

ment in favor of plaintiff entered upon a verdict and affirmed ■ an order denying a motion for a new trial.

This action was brought to liavé a certain annuity, under the will of Lewis II. Bedfield, deceased, declared a lien upon certain real estate devised. The facts, so far as material, are stated in the opinion. Under the will and its codicils, the annuity created in favor of Anna Maria Bedfield, is not a charge upon the interest of Lewis H. Bedfield in the store devised, and if any charge was thereby created, it was upon the interest of Margaret T. Smith alone. (1 Pom. Eq.

The answer of the mayor does not deny any of the allegations of the petition as to the application, the tender of a proper bond and the good character of the petitioner. Therefore, no issue was raised on these points. (People ex rel. McGuire, 29 N. Y. S. R. 674; People ex rel. v. Paton, 20 Abb. [N. C.] 195.) The mayor’s conclusion thatSchwab was guilty of a misdemeanor was unwarranted.

This action was brought to recover' damages caused by the construction and maintenance of defendants’ railroad in front of plaintiffs premises in Amity street, in ISTew York city, and for an injunction restraining the further use of said railroad or to recover the value of the easements taken. The facts are sufficiently stated in the opinion.

The facts, so far as material, are stated in the opinion. As to the appellants, not parties to the action, the injunction or stay was not operative at the time of the service of the papers upon them. (Code Civ. Pro. §§ 99, 127, 220, 416, 435, 620; Leffingwell v. Chave, 19 How. Pr. 54; People ex rel. v. Dwyer, 90 N. Y. 402.) The injunction only issues against the party to an action. (Batterman v. Finn, 32 How. Pr. 501; Willard’s Eq. Juris. 352; Fellows v. Fellows, 4 Johns.

<p>Appeal by relators John P. Leo, as captain, and Edward D. Stryker, as an enlisted member of Company I, Twenty-second Regiment, National Guard, S. N. Y., from order of the General Term of the Supreme Court in the first judicial department, made February 13, 1891, denying an application for a writ of certiorari to review an order made by the governor, as commander-in-chief of the military forces of this state, dated October 10, 1890, which disbanded said company.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The order is appealable. (People ex rel. v. McCarthy, 102 N. Y. 635 ; Tilton v. Beecher, 59 id. 176; Blossom v. Estes, 84 id. 614; Noyes v. C. A. Society, 70 id. 481; Hewlett v. Wood, 67 id. 399 ; Code Civ. Pro. § 190; Newton v. Russell, 87 N. Y. 532; Howell v. Mills, 53 id. 322 ; 45 id. 708.) The court below had power and jurisdiction to issue the writ, (Code Civ. Pro. §§ 2120, 2122, 2129 ; Wildey v. Washburn, 23 Wend. 227; People ex rel. v. Nichols, 6 Abb. [N. C.] 474; Page v. Hardin, 8 B. Mon. 648 ; People ex rel. v. Hill, 65 Barb. 170.) The court below erred in its construction of the law relating to the subject-matter. (U. S. Const. art. 1, §§ 8, 10 ; U. S. R. S. art. 16, § 1637 ; N. Y. Const. art. 11, §§ 1, 5 ; Laws of 1888, chap. 332; Houston v. Moore, 5 Wheat. 15 ; Prigg v. Pennsylvania, 10 Pet. 539 ; Sturges v. Crowninshield, 4 Wheat. 193; 1 Kent’s Comm. § 390 ; Laws of 1870, chap. 80, § 71; Laws of 1883, chap. 298, §§ 3, 7, 75, 147; U. S. R. S. §§ 1625, 1626, 1630, 1631, 1632, 1634, 1635, 1636, 1637, 1640, 1642, 1658 ; Martin v. Mott, 12 Wheat. 19 ; Laws of 1888, chap. 332, §§ 26, 29, 38, 44; People v. Duane, 121 N. Y. 375.)</p> <p>The order of the General' Term is not appealable. (Code Civ. Pro. § 2127; Hewlett v. Wood, 67 N. Y. 394; Fisher v. Gould, 81 id. 230 ; Clark v. Lourie, 82 id. 580 ; People v. McCarthy, 102 id. 635.) It will not be claimed that the right to the writ in this ease was expressly conferred or authorized by any statute, and, therefore, it could only be issued as at common law. (Code Civ. Pro. § 2120 ; People ex rel. v. Corwin, 68 N. Y. 408 ; People v. Bd. Comrs., 97 id. 43 ; People ex rel. v. Bd. Comrs., 100 id. 86.) It is respectfully submitted upon the part of the governor that in no event had the Supreme Court any jurisdiction to issue a writ of certiorari to review his action in the matter of special order No. 99. (Const. N. Y. art. 4; Laws of 1883, chap. 299, § 7; Cooley on Const. Lim. [5th ed.] 138; Southerland v. Governor, 29 Mich. 320 ; Hawkins v. Governor, 1 Ark. 570 ; State v. Governor, 25 N. J. 331; People v. Bissell, 19 Ill. 229 ; Dennett, Petitioner, 32 Maine, 510; Mauran v. Smith, 8 R. I. 192; Board v. McComb, 92 U. S. 541; U. S. v. Black, 128 id. 48 ; Redfield v. Windom, 137 id. 636.), There was no foundation in law for the application made herein by the relators, and there is no merit in the appeal. (Const. N. Y. art. 4, § 1; Laws of 1883, chap. 299, § 7; Laws of 1888, chap. 332; Mayor, etc., v. Sands, 105 N. Y. 218.) The statute does not violate the Federal Constitution nor any act of congress. (R. S. [2d ed.] 285 ; Const. N. Y. art. 1, § 8; Houston v. Moore, 5 Wheat. 50; Collector v. Day, 11 Wall. 113; Van Brochlin v. State, 117 U. S. 178 ; U. S. v. Cruikshank, 92 id. 551; County of Mobile v. Kimball, 102 id. 691; Sherlock v. Alling, 93 id. 99 ; Peik v. C. R. Co., 94 id. 177, 178; Transportation Co. v. Parkersburg, 107 id. 703; Brown v. Houston, 114 id. 634; Leisy v. Hardin, 135 id. 108, 109.) It is .not necessary for the respondent here to show that all uf the provisions of the Military Code of 27ew York are not in conflict with the acts of Congress. It is enough to show that so much of the statute as covers the act of the commander-in-chief complained of violates no statute of the United States. (Presser v. Illinois, 116 U. S. 269.) The relator’s claim that some of the provisions of special order No. 99 are in conflict with that provision of section 5 of article 11 of the Constitution which declares: “ And no commissioned officer shall be removed from office unless by the senate' on the recommendation of the governor, stating the grounds on which such removal is recommended, or by the decision of a court-martial pursuant to law,” is untenable. (People v. Scrugham, 25 Barb. 217; People v. Ewen, 17 How. Pr. 378; Gertman v. Bd. Suprs., 109 N. Y. 173; Const. N. Y. art. 11, § 6.)</p> <p>The order is not appealable and the appeal should be dismissed. (Code Civ. Pro. § 2127; Cushman v. Brundett, 50 N. Y. 296 ; F. L. & T. Co. v. B. T. Co., 109 id. 342; Tolman v. R. R. Co., 92 id. 353; Noyes v. C. A. Society, 70 id. 481.) The application was properly disposed of for the reason that the prayer of the petition and the motions made thereon were for a writ directed to the- respondents Porter and McGrath jointly and to the commander-in-chief if necessary. (Marbury v. Madison, 1 Cranch. 137; People v. Walker, 68 N. Y. 403.) The question of disbandment of military organizations being vested by law in the sound discretion of the chief executive of the state, in the exercise of one branch of his executive duties, the courts will not interfere with his decision. (Laws of 1851, chap. 180, § 1; People v. Sampson, 25 Barb. 254; People v. Scrugham, 25 id. 216 ; Cooley’s Const. Lim. [6th ed.] 136.) The provisions of the Military Code authorizing the disbandment of organizations are not unconstitutional as against commissioned officers of such organizations. (Const. N. Y. art. 11, § 5 ; People v. Scrugham, 25 Barb. 217 ; People v. Ewen, 17 How. Pr. 375; 17 Barb. 378.) The argument that the relator Leo has been deprived of his office contrary to the Constitution of this state is unsound. (Laws of 1883, chap. 299, §§ 7, 44; Laws of 1888, chap. 332.) The removal from office by a court-martial plainly means, not a removal from command but a discharge from the service of the state, by the deprivation of the officers commission. (State v. Mott, 46 N. J. L. 328.) The provisions of the Military Code of this state, under which the order sought to be reviewed herein was made, are not in violation of any provision of the Constitution of the United States or of any law of congress. (Houston v. Moore, 5 Wheat. 50, 51; Flanders’ Exposition of the Constitution, 128; Cooley’s Const. Lim. [6th ed.] 29; Sturges v. Crowninshield, 4 Wheat. 122-196 ; Gilman v. Philadelphia, 3 Wall. 713-730; Dunne v. People, 94 Ill. 125-127, 129; U. S. Const. art. 1, § 8; Houston v. Moore, 2 S. & R. 192; Presser v. Illinois, 116 U. S. 252, 267, 268; Laws of 1888, chap. 332, § 7; P. Co. v. Keokuk, 92 U. S. 80; Penniman's Case, 103 id. 714.) The relator must be held, therefore, to have assumed office with the contingency in view that he might be deprived of command in this manner. (People v. Scrugham, 25 Barb. 236.) The relator Stryker has no standing in court. (Laws of 1888, chap. 332.)</p>

This action was brought to compel defendant to account for and apply sufficient of the moneys received by it as one-lialf the proceeds of the sales of its cemetery lots, to redeem and discharge a certificate issued by it to plaintiff’s testator. A copy of said certificate and the facts, so.far as material, are set forth in the opinion.. The action was barred by the Statute of Limitations. (Code Civ.

<p>Appeal from •judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made September 10,1889, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The motion of the defendant, the Acme Oil Company, for a nonsuit should have been granted, and a verdict on behalf of this defendant should have been directed. (Ahern v. Steele, 115 N. Y. 204.) The motions for a nonsuit should have been granted as to both the oil companies defendants. (People v. Townsend, 3 Hill, 479 ; Wood on Nuisance, §§ 73, 838; McDonough v. Gilman, 3 Allen, 264; Wenzlick v. McCotter, 87 N. Y. 122; Clancy v. Byrne, 56 id. 129 ; Edwards v. N. Y. & H. R. R. Co., 98 id. 245; Wolf v. Kilpatrick, 101 id. 146; Nelson v. L. B. Co., L. R. [2 C. P. Div.] 311; Odell v. Solomon, 99 N. Y. 635 ; House v. Metcalf, 27 Conn. 631; Rosewell v. Prior, 2 Cro. 372; Chauntler v. Robinson, 4 Exch. 163; Cheetham v. Hampton, 4 T. R. 318; Russell v. Shelton, L. R. [3 Q. B.] 449.) Plaintiff cannot recover upon a ground not stated in his complaint. (Romeyn v. Sickles, 108 N. Y. 650 ; Day v. New Lots, 107 id. 148; W. M. & R. Co. v. Thayer, 50 Hun, 516.) Defendant was entitled to a charge that if the appearance of the wall was such that one not an expert could tell by looking at it that it was in a dangerous condition and liable to fall, it was negligence on his part to expose himself to such danger. (1 S. & R. on Neg. § 92.)</p> <p>The oil companies were the owners of the premises, the companies had leased- to Murphey & Liscomb and the latter were the tenants of the former. (Clancy v. Byrne, 56 N. Y. 132, 134.) The rights and liabilities of landlord and tenant are to be determined as of. the date of the last letting, except possibly as to existing knowledge upon the facts existing at the last letting. (Sandford v. Clarke, L. R. [21 Q. B. Div.] 308, 400; Whalen v. Gloucester, 6 T. & C. 135, 137; Tompkins v. Lawrence, 8 C. & P. 729; Grandy v. Juber, 5 B. & S. 78, 88, 91; Griffith v. Lewis, 17 Mo. App. 613; Swords v. Edgar, 1 T. & C. 23 ; 59 N. Y. 34-36.) The owner of a building adjoining a street or highway is under a legal obligation to take legal care that it is kept in proper condition so that it' shall not fall into the street or highway and injure persons lawfully there. (Muller v. St. John, 57 N. Y. 567, 569; Swords v. Edgar, 59 id. 34.) Murphey & Liscomb are not liable unless they were' guilty of actual negligence. Mere constructive negligence is not sufficient to render them liable. (Odell v. Solomon, 99 N. Y. 635, 636, 637; Woram v. Noble, 41 Hun, 398; Wolf v. Kilpatrick, 101 N. Y. 146, 151, 152; Ahern v. Steele, 115 id. 203.) Negligence is the failure to do what a person of ordinary prudence would have done under the circumstances of the situation, or doing what such a person, under such circumstances, would not have done. (R. R. Co. v. Jones, 95 U. S. 441; Mark v. H. R. B. Co., 103 N. Y. 35; Whart. on Neg. § 3; Heaven v. Pender, L. E. [11 Q. B. Div.] 507.) A tenant from year to year is not bound to substantial repairs; he is only bound to keep the premises wind and water tight. (Leach v. Thomas, 7 C. & P. 327; 1 Taylor on Landl. & Ten. [8th ed.] §§ 343, 363; Horsfall v. Mather, Holt’s N. P. 9 ; Johnson v. Dixon, 1 Daly, 178 ; Deutsch v. Abeles, 15 Mo. App. 404; Wood on Landl. & Ten. §§ 368, 371; Griffith v. Lewis, 17 Mo. App. 605 ; Sanford v. Clarke, L. R. [21 Q. B.] 398 ; Anworth v. Johnson, 5 C. & P. 239; Suydam v. Jackson, 54 N. Y. 454; Gutteridge v. Munyard, 7 C. & P. 129.) As Murphey & Liscomb only occupied a part of the entire building, and their occupation had nothing to do with causing the injury, they are not liable, though the landlord would be. (Donohue v. Kendall, 18 J. & S. 386, 388, 389 ; Looney v. McLean, 129 Mass. 33; Burt v. Boston, 122 id. 226, 227; Larue v. Farren, 116 id. 67, 68, 69; Shipley v. Associates, 106 id. 194, 200; 101 id. 254 ; Kirby v. Boylston, 14 Gray, 251; Milford v. Holbrook, 9 Allen, 17, 22; S. & R. on Neg. § 512; Smith on Neg. 46, 47; Lawrence v. Burrell, 3 How. Pr. [N. S.] 126; West Side v. Newton, 57 How. Pr. 152, 154, 155, 156; 76 N. Y. 616; Bradley v. De Gorcouria, 14 Abb. [N. C.] 53, 54; Jennings v. Van, Schaick, 108 N. Y. 530, 532-534; Eagle v. Swayze, 2 Daly, 141.) Defendants Murphey & Liscomb were not liable for causing the death of Timlin. (Code Civ. Pro. § 1902; Crandell v. Eldridge, 46 Hun, 411; Patterson on Railway Accidents, § 2.)</p> <p>The court was right in refusing a nonsuit, and properly submitted the question to the jury whether the wall was a nuisance, and the evidence abundantly warranted the affirmative answer given by the verdict. (Wood on Nuisance [2d ed.], § 109; Cooley on Torts, 607; Chountler v. Robinson, 4 Ex. 163, 169 ; Regina v. Watts, 1 Salk. 357; Todd v. Flight, 9 C. B. [N. S.] 377, 378; Grove Case, 45 Ind. 429; Drake Case, 13 Metc. 292; Day Case, 5 Allen, 98; Parker Case, 39 Ga. 725; Meyer v. Metzler, 51 Cal. 142; Buckart Case, 3 Hill, 193; Mullen v. St. John, 57 N. Y. 567, 569; People v. Erwin, 4 Den. 129 ; Jennings v. Van Schaick, 13 Daly, 438; 108 N. Y. 530; Rogers v. Stewart, 5 Vt. 215, 216; Irwin v. Wood, 4 Robt. 138, 139; 51 N. Y. 224, 230; Benson v. Luorez, 28 How. Pr. 511; Gray v. B. G. Co., 114 Mass. 149; Sessengut v. Posey, 67 Ind. 408; Irvin v. Fowler, 5 Robt. 483; Joyce v. Martin, 15 R. I. 558; McCallum v. Hutchinson, 7 Up. Can. [C. P.] 508; Simmons v. Everson, 36 N. Y. S. R. 265; Moak’s Underhill on Torts, 255 ; Congreve v. Smith, 18 N. Y. 79, 82; Congreve v. Morgan, 18 id. 84, 85; Clifford v. Dam, 81 id. 52, 53; Morris Case, 89 id. 498, 505 ; Jutte v. Hughes, 67 id. 268, 272, 273; Hay v. Cohoes, 62 id. 159; Wasson v. Pettit, 49 Hun, 166, 167; Seybolt Case, 95 N. Y. 562; King v. Pedley, 1 Ad. & El. 822 ; Waggoner v. Jermaine, 3 Den. 306; Fish v. Dodge, 4 id. 311, 312 ; Anderson v. Dickie, 1 Robt. 238, 245; Whalen v. Gloucester, 4 Hun, 24, 28; Walsh v. Mead, 8 id. 387; Hungerford v. Bent, 55 id. 3; Ahern v. Steele, 48 id. 517; 115 N. Y. 203; Davenport v. Ruckman, 37 id. 568, 574; Swords v. Edgar, 59 id. 28; Sandford v. Clarke, L. R. [21 Q. B. Div.] 398 ; Plumer v. Harper, 3 N. H. 88; Owings v. Jones, 9 Md. 109; Dalay v. Savage, 145 Mass. 38; Wunder v. McLean, 134 Penn. 334; Carson v. Godley, 26 id. 111, 120; Godley v. Hagerty, 20 id. 387; Ingwersen v. Rankin, 47 N. J. L. 78; House v. Metcalf, 27 Conn. 631, 640, Helwig v. Jordan, 53 Ind. 27; Tomle v. Hampton, 129 Ill. 379; Pierce Case, 72 Cal. 180 ; Riley v. Simpson, 83 id. 217; Canavan v. Conklin, 1 Daly, 509 ; Kirby Case, 14 Gray, 249; Shipley Case, 101 Mass. 251; 106 id. 194 ; Holbrook Case, 9 Allen, 17; Elliot v. Pray, 10 id. 378 ; Readman v. Conway, 126 Mass. 374; Clancy v. Byrne, 56 N. Y. 129; Wolf v. Kilpatrick, 101 id. 146, 147; Edwards Case, 98 id. 245; Ryan v. Wilson, 87 id. 471; Miller Case, 34 N. Y. S. R. 607, 608; Davenport v. Ruckman, 10 Bosw. 20, 32, 36; Tate Case, 64 Mo. 150; Coupland v. Hardingham, 3 Campb. 398 ; Beans v. Ambler, 9 Penn. 193, 194; Mur ray v. Allison, 24 N. Y. S. R. 817; Staple v. Spring, 10 Mass. 72, 74; McParthand v. Thous, 24 id. 110; Wasmer Case, 80 N. Y. 212; Duke’s Case, 51 Hun, 606 ; Roswell v. Prior, 2 Salk. 460 ; 12 Mod. 635 ; 1 Ld. Raym. 713 ; King v. Pedley, 1 Ad. & El. 822, 827 ; Gandy v. Jubber, 5 B. & S. 78, 86 ; Hussey v. Ryan, 64 Md. 427; Lowell v. Spaulding, 4 Cush. 277, 279; Bates Case, 151 Mass. 174, 184, 185 ; Regina v. Watson, 2 Ld. Raym. 856 ; Rogers v. Stewart, 5 Vt. 216; Norton v. Wiswell, 26 Barb. 618; Henkell v. Murr, 31 Hun, 28 ; Camp v. Wood, 76 N. Y. 92 ; Martin v. Pettit, 117 id. 118, 122; Larney v. McLean, 129 Mass. 33; Watkins v. Goodall, 138 id. 533 ; Priest v. Nichols, 116 id. 401.) The fact that there was no express covenant to repair the building, as between the owner and original lessee, nor as between such lessee and its assignee, transferee or agent, nor as between the sub-lessor and lessees, does not relieve or exonerate the lessee, or its assignee or agent, or the sub-lessees from liability for adopting and continuing the nuisance, to a third person who was injured by it. (Odell v. Solomon, 99 N. Y. 635 ; Swords v. Edgar, 59 id. 28 ; Nugent Case, 80 Me. 63, 77, 79 ; Ingwersen v. Rankin, 47 N. J. L. 18, 21; Conover v. Conklin, 1 Daly, 509 ; Irvin v. Wood, 4 Robt. 138, 143, 144; Bears v. Ambler, 9 Penn. 193, 194; Regina v. Walts, 1 Salk. 357.) There is abundant evidence to charge the defendants with knowledge of the dangerous and unsafe condition of the wall. (C. S. Road v. B. R. Co., 51 N. Y. 573, 582; Irvin v. Wood, Id. 225 ; Swords v. Edgar, 59 id. 28, 39 ; Wasmer Case, 80 id. 212; Wolf v. Kilpatrick, 101 id. 147; Wenglick v. McCotter, 87 id. 122; 27 N. J. L. 457; 114 Mass. 149; Helwig v. Jordon, 53 Ind. 21; Gandy v. Jubber, 5 B. & S. 117; King v. Pedley, 1 Ad. & El. 822.) The court properly declined to direct a verdict in favor of the Acme Oil Company. (Schmidt v. Keeler, 32 N. Y. S. R. 11.)</p>

The facts, so far as material, are stated in the opinion. The; state superintendent of public instruction had jurisdiction to hear and decide ' the appeal of the trustees of school district No. 25 against the hoard of education of school district No. 1, and to correct accordingly their annual school reports for the school year of 1884-1885.

The facts, so far as material, are stated in the opinion. The court was bound to decide the case according to the undisputed evidence, and a failure to do so was an error of law for which the judgments below should be reversed. (Plyer v. German, 121 N. Y. 692; Lomer v. Meeker, 25 id. 361; Kelly v. Burroughs, 102 id. 93, 95, 96; Watson v. Campbell, 38 id. 153, 155, 157; E. Ins. Co. v. Aldrich, 26 id. 92; Potter v. Chadsey, 16 Abb.

This action was brought to recover damages for the killing of Eugene K. Whittaker, plaintiffs intestate, through the alleged negligence of defendant. The facts, so far as material, are stated in the opinion. There was no proof of negligence in the absence of a head-light on the locomotive.

The nature of the action and the facts, so far as material, are stated in the opinion.

<p>The general rule that a master owes to his servant the duty' to keep a machine or appliance -used by the latter in order, and that he cannot delegate the duty so as to escape responsibility, does not apply to defects _ arising in its daily use, which are not of a permanent character and do not require the help of skilled mechanics to repair, but which may easily be and are usually remedied by the workmen, and to repair which proper and suitable materials are supplied.</p> <p>Daley v. B. & A. R. R. Go. (147 Mass. 101X distinguished.</p> <p>0., plaintiff’s intestate, an employe of defendants was killed by the breaking of a rope called a “fall,” attached to a derrick, used in hoisting buckets of coal from the hold of a vessel. In an action to recover damages for alleged negligence causing the death, it appeared that defendants kept on hand an adequte supply of these falls of the’best and most approved kind; that the fall in use was in full view of the employes and would disclose any approaching weakness on the surface before becoming rotten within, and they were able to know how long it had been used and whether prudence required it to bo changed. The new falls were kept under cover, locked up, but were supplied when called for. Applications for the falls were usually made by the engineer or his assistant; but any of the employes were at liberty to call for a new fall and it did not appear any such call had ever been refused. The engineer examined the fall a day or two before the accident and deemed it safe. The court charged that it was the duty of the master to watch the rope used by his servants and its changes of condition; that the engineer was his agent and deputy for such purpose, and any negligence on his part was that of the master. Held, error.</p> <p>Gollieb v. R. T., L. B. & W. R. R. Go. (100 N. Y. 462); Benzing v. Steinway (101 id. 547), Bakery. Allegheny V. R. R. Go. (95 Penn. St. 211); Gone y..D., L. & W. R. R. Go. (81 N. Y. 208); Murray v. Usher (117 id. 543); Fuller v. Jewett (80 id. 50); Ooreoran y. Holbrook (59 N. Y. 518), distinguished.</p>

The defendant, as consignee, having received the wheat under the bills of lading subject to the freight and charges, is liable for the freight. (Abb. on Shipping, 421; Merian v. Funck, 4 Den. 110; Abbe v. Eaton, 51 N. Y. 415.) The duty of the carrier is performed when he delivers all the property received, and when this is done there is no deficiency in cargo to be paid for. (Abbe v. Eaton, 51 N. Y. 410 ; Myer v. Peck, 28 id. 590 ; Law v. Bottsford, 26 Fed.

The facts, so far as material, are stated in the opinion The effect of the sixty-sixth section of the Code of Civil Procedure is not to •give the plaintiff’s attorney such an interest in the cause of action that the plaintiff cannot control the same. If so, it makes the right of the attorney superior to the right of the party, since the attorney can discontinue the action, although he cannot release the cause of action.

1890, which affirmed two orders of Special Term, which modified, and confirmed as modified, the report of the referee appointed in this proceeding. James C. Holden, who was the trustee under the will of Albert Weber, deceased, instituted a proceeding for leave to resign and for the appointment of a new trustee.

<p>As a general rule, under an obligation by one person to support and maintain another, where no place is specified, the beneficiary may live wherever he chooses, provided his choice does not involve needless expense.</p> <p>It seems this rule is subject to exceptions in cases where there is great inadequacy of consideration, where family arrangements are made involving the support of some of its members by others who have been accustomed to live together, or where the circumstances of the case and the language of the instrument indicate an intent that support shall be furnished in a particular manner, at a particular place, or by particular persons.</p> <p>McD. executed a will, by which for the declared purpose of giving her son L., who was her only child and heir, a good and sufficient support, she gave all her property to defendant G., her executor, in trust to receive the rents and profits, and apply them to the use of L. during life, with remainder to G. The only property of any material value owned by the testatrix was a farm, upon which she and her son, who was a lunatic, resided. She thereafter executed a deed of the farm to G., the consideration stated being “ one dollar and other valuable considerations.” G. was an aged clergyman, in nowise related to McD., living at a distance from her farm. L., while not violent or dangerous, was unmanageable. McD. continued to live upon the farm with L, until her deatii, and thereafter he remained in possession. G., shortly after the death of McD., executed and caused to be recorded an instrument under seal, which stated that because of the conveyance he considered himself bound to appropriate to the comfortable support of L. during life, all the rents of the farm, less necessary expenses, or if it should be sold, then that such support should be the first lien thereon, the obligations resting upon him however to be limited to the rents or, in case of sale, to the interest on the purchase-money. Held, that said instrument constituted a valid and enforceable trust imposing upon its creator the obligations and duties of a trustee; that said trust was irrevocable and could not be limited or affected by subsequent acts or contracts of the trustee with a stranger; that the trust was not limited to support to be furnished L. on the premises, but constituted a general obligation to appropriate the rents and profits or the interest on the purchase-money, in case of sale, to the support of L., whenever it might be needed; and that an active duty was imposed upon G. to exercise care and supervision over the person and wants of L., and to provide for him within reasonable limits, without reference to his place of abode, to the extent of the rents and profits.</p> <p>G. took possession of the farm and subsequently deeded it to defendant D. for the consideration of $400, which was secured-by mortgage on the farm. D. also covenanting that he would “provide and furnish” L. during life “suitable clothing, food, lodgings and necessary medical attendance.” It was also provided in the deed that the support and maintenance of L,. should “ constitute and remain an indefeasible lien upon the premises.” D. leased about an acre and a quarter of the farm with 'the buildings to P. in consideration that the latter would board L. and do his washing and mending. In case G. did not stay on the farm, then P. was to pay a rental of forty dollars a year. D. assisted P. in taking possession of the house; L. opposing it, was personally assaulted by a servant of D., and his hed and furniture were forcibly taken from the room he had occupied and packed away; he refused to remain and live with P., and thereafter lived with and was practically supported by plaintiff; he was needy and dependent, frequently sick and practically unable to support or care for himself, P. paid the rent agreed upon to D. Neither the latter nor G. have given to L. any attention or support. D. paid to G. annually the interest on the mortgage, which the latter appropriated to his use. In an action to enforce the trust, held, that after the purchase by D. his liabilities and those of G. were co-extensive; that G. did not, by his contract with D., relieve himself from the duty of seeing that his obligations to L. were performed; but as between him and D. the latter was primarily liable; that conceding the declaration of trust was limited to support to be furnished on-the premises, no adequate or sufficient provision was made therefor, and the duties of the trust were wholly neglected; that G. and D. were liable for such damages as L. has sustained on account of tlieir default, i. e., the sum required for his reasonable and comfortable support, to the extent of the rents and profits from the time the trustee took possession; and so, that plaintiff was entitled to judgment for the sums required annually for that purpose, with interest, the same to be charged primarily upon the land; in case of deficiency, on sale, said deficiency to be paid by D., and in case of his inability, by G.</p>

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made Hovember 25, 1890, which reversed on certiorari the proceedings of the board of police commissioners of the village of Greenbush in removing relator from the position of superintendent of the police department and dismissing him from the police force.</p>