Volume 136 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. In an action to recover damages for alleged negligence causing a personal injury, declarations of the party injured, made after the injury, to the effect that he is suffering pain and what kind of pain, not made to a physician for the purpose of professional attendance, are not competent as evidence.

This was an action to compel the specific performance of a contract for the purchase of land. The facts, so far as material, are stated hi the opinion. The court will not decree specific performance of a contract for the purchase of realty where the title of the vendor is doubtful. (Adams v. Valentine, 33 Fed. Rep. 1; Cooper v. Denue, 4 Bro.

Walker, deceased, and deciding certain questions in reference thereto raised on probate. By the terms of the will, various legacies, amounting in all to over $65,000, were given to beneficiaries named. These legacies were described as moneys deposited by the testator in various savings banks named, the deposits in each case save one, having been made by him as trustee for the beneficiary.

This was an action of ejectment to recover possession of certain premises in the village of Westfield, county of Chautauqua. In 1812, Amelia Holt, then the owner in fee of the premises, executed a mortgage thereon to Rufus C. Palmer, who subsequently died, leaving a will, and the plaintiffs were appointed his administrators, with the will annexed.

This action was brought to sustain the infringement of a trade-mark. A temporary injunction was granted, plaintiff giving an undertaking in the usual form. Thereafter on application of defendants an order was granted adjudging plaintiff guilty of contempt, in interfering to prevent the execution of a commission, and as a punishment therefor directing a dismissal of the complaint and dissolution of the injunction. Further facts are stated in the opinion.

The court had no right to fix a counsel fee arbitrarily. (10 Abb. [N. C.] 391; Randall v. Van Waggenen, 115 N. Y. 527; Lee v. V. O. Co., 127 id. 579; Parle v. Belcha, 131 id. 200. The attorney has a lien which attaches to the judgment, which cannot be affected by any settlement between the parties. (Code Civ. Pro. § 66; Whittaker v. N. Y. & H. R. R. Co., 18 Abb. [N. C.] 15; Smith v. Baum, 67 How.

The facts, so far as material, are stated in the opinion. This court has-already decided, in the case of at least one city and county of the state, that the debt limitation cannot exceed ten per cent of the total taxable real estate valuation of such city and county.

Merriam, deceased. The facts, so far as material, are stated in the opinion. The decree of the Surrogate’s Court, so far as it holds that the will is a valid instrument to pass title to real estate, is clearly erroneous.

The facts, so far as material, are stated in the opinion. Every part of this case is reviewable on the appeal. (Code Grim. Pro. § 517.) The defendant is as fully entitled to the protection of the law as is the prosecution, and to greater protection, for the law seeks, and intends, to surround an accused person with every safeguard to avoid the possible conviction of an innocent person. (Code Grim.

This was an action to recover damages for alleged negligence causing the death of John Potter, plaintiff’s intestate, while in the employ of defendant. The facts, so far as material, áre stated in the opinion. The motion for a nonsuit upon the whole action should have been' granted, and the court erred in submitting the case to the jury.

order of Special Term confirming the report of a referee as to the distribution of a fund deposited to the credit of the above-entitled proceeding. This was a motion on behalf of Alexander M. Holden, to be allowed to intervene in the above-entitled proceeding and file a notice of his claim upon an award made for certain water rights taken by the city of Rochester for the purpose of increasing its supply of water. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The case at bar is to be determined upon the intent of the parties, as gathered from the bond and mortgage, made payable to them, “ their executors, administrators and assigns,” as well as from the evidence and the surrounding circumstances, and an inference from such intent may reasonably be drawn from a variety of circumstances, however slight.

<p>Under, and by an instrument which is in legal effect a mortgage, a power may be vested in the mortgagee to sell and convey an absolute title to the mortgaged property.</p> <p>R., by his will, gave to his widow one-half of his residuary estate, which included an interest given to him by the will of his father. The widow executed to 0. an absolute assignment of her interest derived under the will of R., and concurrently therewith, 0. executed and delivered to her a defeasance, which contained an agreement on his part, that out of the moneys realized form the sale of such interest, he would first reserve §2,250, with interest, and any expenses, and give the balance to her. 0. assigned to A., plaintiffs assignor, all his “right, title and interest in and to the bill of sale and defeasance annexed.” Subsequently, the widow individually, and as administratrix, with the will annexed, of R., executed to his father’s executors, who had notice of her assignment to 0., all her interest in the estate of their testator which exceeded §2,250. In an action to comp el an accounting by said executors and a cancellation of the release, held, that the interest of R. in his father’s estate, which passed to his widow under his will, was assignable, and passed by her assignment to 0., and it being conceded that said interest exceeded §2,250 at the time the release was executed, and that there was money sufficient in the hands of the executors to pay that sum, that a judgment was proper, setting aside the release, and directing payment by said executors of the sum specified, with interest; that assuming C., under the assignment to him, had power to make an absolute assignment of the widow’s interest in said estate, as he did not attempt to do this, but simply transferred his “right, title, and interest,” and as payment to him before his transfer to A. of §2,250 and interest would have satisfied all his claims, and reinvested in the widow her original right, payment to plaintiff of the same sum, fully satisfied his claim.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of Flew York, entered upon an order made July 5, 1892, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>A purchaser need not accept a title where there is a reasonable doubt as to either a matter of fact or a matter of law. (B. P. Comrs. v. Armstrong, 45 N. Y. 234, 248; Jordan v. Poillon, 77 id. 521; Hellreigel v. Manning, 97 id. 56; M. E. C. Home v. Thompson, 108 id. 618; Vought v. Williams, 120 id. 253; Kilpatrick v. Barron, 125 id. 751; Pryke v. Waddington, 17 Eng. L. & E. 535; Atkinson on Marketable Titles, 3, 369, 390; Ferry v. Sampson, 112 N. Y. 415; Griffin v. Barney, 2 id. 365; Leitch v. Hollister, 4 id. 211; Collomb v. Caldwell, 16 id. 484; Knapp v. McGowan, 96 id. 85; Cole v. Tyler, 65 id. 73.) A title which is liable to attack is not marketable. (Jordan v. Poillon, 77 N. Y. 518, 521; Moore v. Appleby, 108 id. 241; Fleming v. Burnham, 100 id. 1, 10; Abbott v. James, 111 id. 673, 678; Atkinson on Marketable Titles, 2, 3, 379, 632, 633; Dobbs v. Norcross, 24 N. J. Eq. 327; Swayne v. Lyon, 67 Penn. St. 436 ; Pryke v. Waddington, 17 Eng. L. & E. 535 ; Dingley v. Bon, 130 N. Y. 607; Williamson v. Brown, 15 id. 354.) The defendant is not entitled to judgment for he has not performed or offered to perform the contract in the respects in which it was on his part to he performed. (Noel v. Watson, 6 Madd. 50 ; Mitchell v. Neale, 2 Ves. Sen. 679 ; Vought v. Williams, 120 N. Y. 253.) The court erred in allowing the defendant to withdraw his plea for specific performance and then dismissing the complaint, thereby causing the plaintiff to forfeit her deposit of $720 on account of the purchase money. (Freeman v. Grant, 132 N. Y. 22; Dexter v. Sims, 133 id. 551; Barnes v. Quigley, 59 id. 265 ; Arnold v. Angel, 62 id. 508; McMichael v. Kilmer, 76 id. 36 ; Gowdey v. Poullian, 2 Hun, 219 ; Beck v. Allison, 56 N. Y. 366.)</p> <p>The defendant was not obliged to offer the plaintiff a trustee’s deed. (Beck v. Mallius, 6 Seld. 509; People v. Keyser, 28 N. Y. 226.) Plaintiff waived the tender of a deed by rejecting the title. (Blewett v. Baker, 58 N. Y. 613 ; Crary v. Smith, 2 id. 65 ; Cornwell v. Haight, 21 id. 462; Bunge v. Koop, 487 id. 225 ; Crist v. Armour, 34 Barb. 378; Wheeler v. Garcia, 40 N. Y. 584; Knapp v. McGown, 96 id. 75.) A purchaser should not be permitted to speculate upon defects in the title and to decline the title — and, when it subsequently appears to be advantageous to him to accept the same, be allowed to change his entire position. (Haffey v. Lynch, 46 N. Y. S. R, 127.)</p>

<p>Whenever a power or authority to sell is given by will to executors, without . limitation and not in terms made discretionary, and its exercise is rendered necessary by the scope of the will and its declared purposes, the authority is to be deemed imperative and a direction to sell will be implied, provided the design and purpose of the testator is unequivocal and the implication so strong as to leave no substantial doubt, and his intention cannot otherwise be carried out.</p> <p>The exercise of such an imperative power of sale may be compelled in favor of any party lawfully entitled under the provisions of the will to the proceeds of the real estate when sold, and so, may be compelled by a creditor whose debt is directed by the will to be paid and for the satisfaction of which the personal estate proves insufficient (1 R. S. 684, § 96).</p> <p>J. died owing unsecured debts amounting to much more than the value of his personal estate; by his will he directed the payment of all his just debts and funeral expenses by the executors and trustees. He then gave all his property real and personal, to executors and trustees, upon certain specified trusts, with “ full power and authority to sell and convey any and all ” the real estate. In a proceeding instituted under the provisions of the Code of Civil Procedure (§§ 2749, 2801) by a general creditor, to obtain payment of his debt, by a sale of real estate of the decedent. Held, that the power to sell was imperative and the exercise of it might be compelled by the creditor; and that, as the debtor had thus provided another remedy equally prompt and effective in its operation the statutory remedy could not be resorted to.</p> <p>Seholle v. Seholle (113 N. Y. 261); In re MeOomh (117 id. 378); In re Bingham (127 id. 296); In re Gity of Bochester (110 id. 189); Glift v. Hoses (116 id. 144); In re Powers (124 id. 361), distinguished.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 31, 1891, which affirmed a judgment in favor of the defendant Theodora Edith MacKaye, entered upon a decision of the court on trial at Special Term.</p> <p>This action was in the nature of a bill of interpleader brought by plaintiff, as administrator of William H. MacKaye, deceased, to determine the right to seven coupon Kansas Pacific bonds for $1,000 each, as between Theodora Edith MacKaye, an adopted infant daughter of James MacKaye, deceased, and the executor of his will. These bonds were found by plaintiff among the papers of the decedent.</p> <p>Said bonds with three other similar ones were delivered by said James MacKaye to his son William who executed to him the</p> <p>“Hew York, Jcmuwry 21, 188L</p> <p>“ Received of my father, James MacKaye, ten Kansas Pacific bonds of one thousand dollars each, to be held by me in trust for liis adopted daughter Theodora Edith MacKaye, and for her sole benefit and behoof, said bonds for and during his life to be subject to the order of my father.</p> <p>“ W. H. MacKAYE.”</p> <p>On April 1, 1887, the deceased directed William to borrow for him $2,000 on two of these bonds, which was done and an acknowledgment of this order was sent to William by his father. The acknowledgment was written at the bottom of a copy of the trust receipt in the following form:</p> <p>“April 1st, 1887,1 directed my son, W. H. MacKaye, to borrow for me $2,000 and to use as security therefor, two of the above-mentioned bonds.</p> <p>“J. MacKAYE.”</p> <p>In October, 1887, James MacKaye wrote to his friend, Mr. Lowrey, proposing that his wife, his son William and Mr. Lowrey should be put in possession as trustees of certain bonds including “ those now held by William in trust for Edith.” On December 21, 1887, in a letter to William inclosing the acknowledgment of the order as to the $2,000 loan, he says: “ My principal object in putting these bonds in trust for Edith, was to enable you in case of any more blackmail suits to swear that you had no property in your hands belonging to me.”</p> <p>On January 11, 1888, he wrote to William referring to the last letter of his to William’s anxiety about “ responsibility under the trust,” stating that his power of disposition “ is to be taken as a condition so far modifying it.” Adding this, “ I will send you another form of receipt so that you shall be relieved of all responsibility under the trust. I mean I will so draw the receipt so that, so far as I choose, during my life, I may withdraw any portion or all of the bonds from under the trust.”</p> <p>On the eighteenth of the same month he wrote a letter in which after referring again to his former explanation “ why I put the ten bonds in your hands in trust for Edith,” he says : “ Of course I never meant to part with the fight to dispose of the bonds otherwise during my life.” * * * “ But as you seem to be worried about the receipt you gave me I return it to you, hut let the understanding between us be, that at all times, any portion of the bonds that remain in your hands undisposed of by my order or request, you hold for the benefit of Edith and as her guardian and trustee, so that you can at all times swear that you have no property of mine in your hands.”</p> <p>James MacKaye died in Paris in April, 1888.</p> <p>There was no such absolute and complete present delivery or gift to a trustee, made or intended to be made, as is essential to create a valid trust. (Martin v. Funk, 75 N. Y. 137; Milroy v. Lord, 4 De G., F. & J. 264 ; Beaver v. Beaver, 117 N. Y. 429 ; Young v. Young, 80 id. 435.) There was no valid gift or gift in trust voter vimos, because no title or interest in any of the property was to vest legally, or beneficially, until the death of the settlor. (In re Dietz, 50 N. Y. 93; Nutt v. Morse, 142 Mass. 1; Williams v. Guile, 117 N. Y. 347; Basket v. Hassell, 107 U. S. 602.) The attempted transfer was not valid, as a gift, or as a gift in trust, causa mortis. (Williams v. Guile, 117 N. Y. 348; Riddin v. Thrall, 125 id. 579 ; Basket v. Thrall, 107 U. S. 662.) As there was no defined or certain present estate or interest set ofl to Edith, or to William for her use, the transfer is void for uncertainty. (Young v. Young, 80 N. Y. 431.)</p> <p>To constitute a trust of personal property it is sufficient that some person he designated “trustee” (by the use of that word) of a designated fund, for a designated person. It is not necessary to notify the beneficiary or to use any further words. (Martin v. Funk, 75 N. Y. 134; Macy v. Williams, 125 id. 787.) The intent of the creator of this trust, expressed at the time of the delivery, between himself and the trustee, in the receipt dated January 21, 1887, and reiterated afterwards by him to the trustee, was* to divest himself wholly of the title, ownership and possession which he then had of these coupon bonds, retaining in lieu thereof nothing hut the power of disposition during his life. The right of property was completely alienated and vested in the trustee. A life power of disposition was contemporaneously created and retained. (Cutting v. Cutting, 86 N. Y. 522; Hutton v. Benkard, 92 id. 304, 305.) The reserved power did not invalidate the trust, or convert it into a bailment. (Gilman v. McArdle, 99 N. Y. 451, 457; 1 Perry on Trusts, § 104; Jones v. Clifton, 101 U. S. 229; Davis v. Hey, 125 Mass. 190; VanCott v. Prentiss, 104 N. Y. 45.) The trust expressed in the letter of January 18, 1888, remains unaffected by the reserved power of disposition, and the son was thereby made guardian and trustee for this infant precisely as if there had been no reservation at all. (Lines v. Lines, 24 Am. St. R. 490.) The power of revocation, under our Bevised Statutes, rendered the trust of no validity as against creditors having “ lawful demands,” to satisfy which the revocable fund might be necessary. But there are here, so far as appears, no creditors. If there were any, the invalidity as to them would not render the trust invalid in favor of the grantor or against the beneficiary. (Gilman v. McArdle, 99 N. Y. 457; Lore v. Dierkes, 16 Abb. [N. C.] 47, 54.) There is no uncertainty as regards the rights of the beneficiary of this trust, or as to its extent, and the instruments creating it are not testamentary. (Gilman v. McArdle, 99 N. Y. 451, 459.) An executor cannot defeat a trust and sustain his title to the trust property, by proving the declarations of the deceased in his own interest, or in that of others, made by him after the creation of the trust. (Greaves v. McArdle, 15 Hun, 367-370; Lowery v. Erskine, 113 N. Y. 52, 60, 61; Miles v. Sackett, 3 How. Pr. 145 ; Anderson v. Thompson, 38 Hun, 394.) The law required that the fund should be adjudged to be payable to a trustee for the infant, to be appointed by the Supreme Court under the Statute. (Laws of 1882, chap. 185; 99 N. Y. 117.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in charging the jury that the presumption of law was against such a clama as advanced in this action, and the exception thereto was well taken. (McQueen v. Babcock, 3 Abb. Ct. App. Dec. 132; Barrett v. Meyer, 10 Hun, 109, 110; Bank v. Gifford, 40 Barb. 659 ; U. Bank v. Bassett, 3 Abb. Pr. 359; Grant v. Mclachlin, 4 How.

This action was brought to determine as to the validity of certain provisions of the last will and testament and codicils of Thomas Hope, the deceased. The facts, so far as material, are stated in the opinion. The validity of the gift of the residuary estate must be determined by the laws of this state. (Holmes v. Remsen, 4 Johns. Ch. 460, 469; Mills v. Fogal, 4 Edw.

<p>Appeal from judgment of the General Term of the Supreme-Court in the first judicial department, entered upon an order-made May 18, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>This was an action upon three installment life insurance-bonds issued by defendant to Benjamin De Frece, plaintiff’s, intestate.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The premium notice mailed to the insured under the laws of New York (Chap. 341, Laws of 1876, as amended), requiring life insurance companies doing business in this state to mail notices to insured at least thirty days before the premium falls due, before the company can declare the pohey lapsed and forfeited, was sufficient, and that law fully complied with. (Laws of 1876, chap. 341; Laws of 1877, chap. 321.) The insured was bound to know the laws of Hew York state; the court will presume that he knew the laws of the state of his domicile and residence The law presuming the assured to know this law will also presume that having the notice in his possession, holding it — it being produced on the trial by plaintiff—knew what it contained (Laws of 1876, chap, 341; Kettlewell v. Watson, L. R. [21 Ch. Div.] 704; Ware v Egmont, 4 De G., M. & G., 460, 473; Heathorn v. Darling, 1 M. P. C. 5; Brydges v Chandos, 2 Ves., Jr., 437, 440; Peto v. Hammond, 30 Beav 495, 509; Brumfit v. Morton, 3 Jur. [N. S.] 1198, 1202; Patterson v. Long, 6 Beav. 590, 597; Whitlock v. Johnson, 15 Va L. J. 73.) When policies are assigned to company, no notice is required to be mailed, as defendant knew this premium would fall due on January twenty-seven, and even, if necessary, it could waive this provision of statute for its benefit. (Laws of 1876, chap. 341; Pfyfe v. Emier, 45 N. Y 102, 104; Embury v. Connor, 3 id 50; Kneetle v Newcomb, 22 id 249, 252.) The point, that the policy did not lapse until the expiration of thirty days after the date the premium became due, and the thirty days had not expired when the insured died, is untenable. (Laws of 1876, chap 341; Laws of 1877, chap. 321.) The court erred in allowing evidence tending to excuse the payment of premium. (Tooker v. Arnoux, 76 N. Y. 397; Oakley v. Menton, 11 id. 25; Worall v. Parmalee, 1 id. 519; Anderson v. R. & W. R. R. Co., 54 id. 334; Osgood v. M. Co., 3 Cow. 612; Baird v. Gillett, 47 N. Y. 186; Brown v. S. R. R. Co., 18 id. 495 ; S. Bank v. Garlinghouse, 4 How. Pr. 174; Burral v Moore, 5 Duer, 654; Kanouse v. Martin, 3 Sandf. 593; Nevins v. Dunlap, 33 N. Y. 676 ; Rider v. Powell, 28 id 310; Wood v. Hubbell, 10 id. 479.) The plaintiff claims that there has been a waiver of forfeiture by the defendant by accepting the October 27, 1888, premium three days after the January premium of 1889 was due, for the nonpayment of which premium the bonds were forfeited. This testimony was admitted under defendant’s objection and exception; the question of waiver was not presented by the issues framed by pleadings, and, therefore, plaintiff was not entitled to have that question submitted to jury or decided by the court, and the exceptions are well taken. (Code Civ. Pro. §§ 514-518; Romain v. Siclkes, 108 N. Y. 650; Kelly v. Upton, 5 Duer, 336, 342; Schultz v. Dupuy, 3 Abb. Pr. 252; Garvey v. Fowler, 4 Sandf. 665 ; McKyring v. Bull, 16 N. Y. 297, 304; Weaver v. Barden, 49 id. 286 ; Tooker v. Arnoux, 76 id. 397.) There has been no waiver of forfeiture proven, even if the evidence was competent. (Thompson v. Ins. Co., 104 U. S. 360; Lantz v. V. L. Ins. Co., 139 Penn. St. 546, 557, 565; Bergman v. St. L. Co., 2 Mo. App. 262; N. M. L. Ins. Co., v. Miller, 85 Ky. 88 ; Ill. Mas. Soc. v. Baldwin, 86 Ill. 479, 487; Home Co. v. Pierce, 75 id. 426 ; Howell v. K. L. Ins. Co., 44 N. Y. 276.) The bonds in suit contained a provision that agents cannot give credit or make or alter or discharge contracts or waive forfeitures, and that no alteration of the conditions of the bond was valid unless made in writing at the home office and signed by the president; under these circumstances the general agent had no power or authority to waive a forfeiture, or extend time for payment of premium, and if insurer failed to pay in time he did it at his peril. (Marvin v. Ins. Co., 85 N. Y. 282; Walsh v. H. F. Ins. Oo., 73 id. 5; Peckner v. P. Ins. Co., 65 id. 207.)</p> <p>The defendant waived the prompt payment of the premium which became due on January 27, 1889, and gave to Mr. De Frece at least a reasonable túne thereafter to pay same, which túne had not expired when he died. (Bodine v. E. F. Ins. Co., 51 N. Y. 117; Baxter v. B. L. Ins. Co., 119 id. 450.) The defendant, by its course of dealing with Mr. De Frece, in accepting payment of premiums long after they become due under the terms of the policies, led him to believe that prompt payment of the premium was unnecessary, and that the same might be paid within a reasonable time after, they became payable, without forfeiture of the policies, and he having died on February 19, 1889, leaving unpaid tlie premium payable January 27, 1889, the defendant is estopped from claiming a forfeiture of the policies. (Leslie v. K. L. Ins. Co., 63 N. Y. 34; Kenyon v. K. T. & M. M. A. Assn., 122 id. 247; Meyer v. K. L. Ins. Co., 73 id. 516; Atty.-Gen. v. C. L. Ins. Co., 33 Hun, 141; Wyman v. P. L. M. Ins. Co., 119 N. Y. 274; Ins. Co. v. Eggleston, 96 U. S. 577; Ins. Co. v. Wolf, 95 id. 333; Ins. Co. v. Poster, 106 id. 37; Helme v. P. L. Ins. Co., 161 Penn. 107; Goedecke v. M. Ins. Co., 30 Mo. 608.) The notice sent by the defendant to Mr. De Frece between December 1 and 10, 1888, was insufficient under section 1 of chapter 321 of the Laws of 1887. (Phelan v. N. M. L. Ins. Co., 113 N. Y. 147.) Each party having asked the court, upon the conclusion of the evidence, to direct a verdict in his favor, and the court having directed a verdict for the plaintiff, all the controverted facts and all inferable facts in support of the judgment will be deemed conclusively established in favor of the plaintiff. (Thompson v. Simpson, 128 N. Y. 270, 283, 284; Koehler v. Adler, 78 id. 287.)</p>

Cboss-appeals from judgment of tlie General Term of the Superior Court of the city of Hew York, entered upon an order made May 9, 1892, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion. To the extent of their invalidity as obligations of the company, the certificates of indebtedness can afford no basis for a charge against defendants.

This was an action against the receiver of the First National Bank of Auburn to obtain specific performance of a contract for a sale of certain real estate by said bank to plaintiff. The facts, so far as material, are stated in the opinion. Assuming that there was a verbal contract, no reason was shown for decreeing specific performance of it. (Pom. Eq. Juris. § 1409; Cagger v. Lansing, 43 N. Y. 550 ; Lowry v. Tew, 3 Barb. Ch. 407; 2 Story Eq.

The facts, so far as material, are stated in the opinion. The Admiralty Court having first acquired actual possession of the res, it must retain jurisdiction. (Hagan v. Lucas, 10 Pet. 401; Taylor v. Carryl, 20 How. Pr. 583; Freemam, v. Howe, 24 id. 450 ; Buck v. Colbath, 3 Wall, 334; Covell v. Heymam, 111 U. S. 176; Heidritter v. E. O. C. Co., 112 id. 294; Pullian v. Osborne, 17 How.

The facts, so far as material, are stated in the opinion. It was the plain intent of Julia Cody that the money deposited in the Emigrant Industrial Savings Bank should belong to Bridget Bolin. (Orr v. McGregor, 43 Hun, 528.) The intent being proven, it should be carried out by the court, unless this would violate some rule of law.

<p>The provision of the State Constitution (Art. 6, § 13) prohibiting any person from holding the office of justice or judge after the end of the year in which he reaches the age of seventy, and providing that the compensation of a judge of the Court of Appeals or a justice of the Supreme-Court, who has served for ten years and whose term is abridged pursuant to said provision, shall be continued during the remainder of his term, refers to the sum of money the retiring judge was in receipt of, when he became disqualified, as his regular stated salary and allowance for expense; it does not include a sum payable by a locality for special and local services performed by the incumbent of the office for the time being.</p> <p>Where, therefore, under the provisions of the act in relation to jurors in the county of Kings (Chap. 323, Laws of 1858, as amended by chap. 821, Laws of 1866), which require justices of the Supreme Court to witness. and assist in the drawing of jurors and authorizes the hoard of supervisors of that county to fix a compensation for such services, said hoard by resolution fixed a sum to be paid annually for performance of that duty to plaintiff, a justice of said court, whose term was abridged by said constitutional provision, held, that an action was not maintainable by him to recover from the county said compensation for the balance of his term.</p>

This action was brought to recover the amount of four promissory notes made by the defendants and payable to Mary Etta Camp, plaintiff’s intestate. The notes were all payable in one year after their respective dates. They were respectively dated December 9,1875, June 5,1877, July 28,1877, and March 18,1878. Mrs. Camp died November 25,1884, and this action was commenced January 30, 1890.

Cross-appeals from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 22, 1892, which modified and affirmed as modified a judgment entered upon a decision of the court on trial at Special Term. This action was brought to obtain a judicial construction of the will of Julia A. Rozell, deceased. The substance of the provisions and facts, so far as material, are stated in the opinion.

• This was a motion to dismiss an appeal; the material facts are stated in the opinion in full. The order is appealable. (Code Civ. Pro. §§ 784, 1351; Clapp v. Hawley, 97 N. Y. 610; Thurber v. Chambers, 60 id. 29 ; In re N. Y. C. & H. R. R. R. Co., 60 N. Y. 112.) The appeal from judgment was not in time. (Humphrey v. Chamberlain, 11 N. Y. 274; Wait v. Van Allen, 22 id. 319; Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The right of substitution and continuance of the action is not so absolute as to preclude the court, in the exercise of a legal discretion, from denying the application, and where there has been unreasonable delay or delay which is injurious to the defendant, it will be denied.

It was not within the power or jurisdiction of the court below to make this order. It could not alter, vary, reverse, or modify the judgment after it had been finally adjudicated upon by the Court of Appeals, including the question of costs in all courts, and final judgment rendered by that court dismissing the complaint. (Genet v. D. & H. C. Co., 113 N. Y. 475 ; Fisher v. Hepburn, 48 id. 41, 53 ; Embury v. Connor, 3 id. 231; Le Green v. Gouverneur, 1 Johns.

The question presented was as to the validity of an issue of water bonds by the city of Rochester, as authorized by the act chapter 358, Laws of 1892. The facts, so far as material, are stated in the .opinion. The city of Rochester, having a population in excess of 100,000, has no power to issue water bonds having more than twenty years to run. (Const.

<p>Appeal from judgment of the G-eneral Term of the Supreme Court in the second judicial department, entered upon an order made February 8, 1892, which affirmed a judgment entered upon a decision of the court at Special Term. This action was brought to obtain a construction of the will of James. • Sullivan, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The words “ brothers ” and “ sisters ” must be used in their primary sense, if indeed, they can ever have any other. (Palmer v. Horn, 84 N. Y. 516; Palmer v. Dunham, 125 id. 68.) The rule of interpretation applicable is well settled. The question is, are the words of the will plain in meaning ? If they are, that is the end of the case ; they must be given their natural meaning, no matter what the result. (Wylie v. Lockwood, 86 N. Y. 291; Patchen v. Patchen, 121 id. 432.) The rule that in an absolute devise, to one, and in case of his death to another, the contingency referred to is death in the lifetime of the testator, does not govern the question here in dispute. (Fowler v. Ingersoll, 127 N. Y. 472; Mead v. Maben, 131 id. 255.)</p> <p>A consideration of the whole will shows the testator meant his grandchildren to take every share original or accruing which their parents would take if living. (Badger v. Gregory, L. R. [8 Eq.] 78.) There was a remainder expectant upon the termination of this trust life estate. (Ham v. Van Orden, 84 N. Y. 257; Griffin v. Shepard, 124 id. 70; Purdy v. Hoyt,. 92 id. 446 ; Moore v. Lyons, 25 Wend. 119.) The word “ surviving ” or “ survivor ” is read either on slight indications that such is the testator’s intent. (Carter v. Bloodgood, 8 Sandf. Ch. 293; Eyre v. Marsden, 4 M. & C. 231; In re Arnold, L. R. [10 Eq.] 252; Wheeler v. Allen, 54 Me. 232.) Where the words of survivorship are used, unless the will discloses a contrary intent, they refer to the death of the testator. (Lyons v. Mahan, 1 Dem. 180 In re Mahan, 98 N. Y. 372; Moore v. Lyons, 25 Wend. 119; Williamson v. Field, 2 Sand. Ch. 605 ; Lovett v. Bulvid, 3 Barb. Ch. 145 ; Johnson v. Valentine, 4 Sanf. 36 ; Scott v. Guernsey, 48 N. Y. 106; Manice v. Manice, 43 id. 303. McKinstry v. Sanders, 2 T. & C. 181; Livingston v. Greene, 52 N. Y. 118; Kelly v. Kelly, 61 id. 50 ; Hopkins v. Hopkins, 1 Hun, 355 ; Weed v. Aldrich, 2 id. 531; Bedell v. Guyon, 12 id. 396; Embury v. Sheldon, 68 N. Y. 227; Stevenson v. Lesley, 70 id. 512 ; Warner v. Durant, 76 id. 133 ; Robert v. Corning, 89 id. 225; Newton v. Ayscough, 19 Ves. 534.) It is impossible to read this will as a whole, without receiving the impression that the intention of the testator was to give to his grandchildren the same shares in his estate that their parents would have taken had they then survived him. (Scott v. Guernsey, 48 N. Y. 106; Low v. Harmony, 72 id. 408; In re Brown, 93 id. 299.)</p>

In June, 1870, Jay Capron borrowed of Mary Banks the sum of $4,000 for which he gave her his bond conditioned for the payment of that sum January 1, 1880, with interest, and as collateral security for the payment of that sum, he with his wife, Cornelia A. Capron, gave to Mrs. Banks a mortgage on four parcels of land, designated in this record as 1, 2, 3 and 4.

The facts, so far as material, are stated in the opinion. The power of the surrogate to construe the provisions of the will, so far as may he necessary to enable him to make a proper decree for the distribution of the estate, is well established. (In re Verplanck, 27 Hun, 609; 91 N. Y. 450; Purdy v. Hoyt, 92 id. 446.) Under the will of James McClure, deceased, Mary I. McClure, his wife, and the appellant herein, takes all of his personal property absolutely.

.Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 22, 1892, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Circuit without a jury. This was an action of ejectment to recover a lot in Brooklyn, part of a farm of which Thomas Poole died seized.

<p>Unless an injunction order is void upon its face, for utter lack of jurisdiction on the part of the judge who granted it, a party disobeying- it may properly be adjudged guilty of contempt. However erroneous the granting of the order may have been, unless there was an entire absence of judicial authority to act, it is the duty of the party to obey its commands until revoked, upon motion or appeal or some other method of direct review in the action in which it was granted.</p> <p>An equitable action, analogous to a creditor’s suit, may properly be brought in aid of and to enforce the lien of an attachment, by injunction and otherwise, before the recovery of judgment in the attachment suit, when the debtor’s property has been fraudulently transferred and there is danger of its removal from the jurisdiction.</p> <p>The attaching creditor after service of his warrant is no longer to bo deemed a creditor at large, but a creditor having- a specific, lien, and for the purpose of upholding it the decision of the judge granting the attachment is to be deemed an adjudication of the existence of the debt, which is conclusive upon the fraudulent transferee.</p> <p>Thurber v. Blanch (50 H. Y. 80), distinguished.</p> <p>It seems the mere existence of the fraudulent transfer is not sufficient to authorize a court of equity to interfere; but this it may do when it is sought to make use of the transfer for the purpose of removing the attached property from the jurisdiction of the officer having it in custody.</p> <p>Plaintiffs were creditors at large of defendants IC. and T., who were insolvent; they fraudulently confessed judgments to others of the defendants, who entered into the arrangement with intent to defraud the other creditors; executions were immediately issued on said judgments, and by virtue thereof the sheriff levied upon all the tangible property of the debtors, advertised the same to be sold, and threatened and intended to sell the same. Plaintiffs on discovering these facts brought suit upon their claim and procured a warrant of attachment therein, which the affidavit stated “has been or will be levied upon the tangible property of said debtors.” In this action plaintiffs claimed, as part of the relief to which they were entitled, that the lien of the fraudulent judgment creditors under their executions be postponed to the lien plaintiffs had acquired by virtue of the attachment and that defendants be restrained by injunction from interfering with the property. A temporary injunction was granted, restraining the sheriff from interfering rvith the property levied upon by him until further order of the court. The summons had not been served when the order was signed, but was served with the order. The sheriff and one of the attorneys for the creditors who obtained the fraudulent judgments disregarding the order caused the property to be sold by virtue of the executions. Upon motion to punish the sheriff and said attorney for contempt, held (Earl, Ch. J., Finch and Peckham, JJ., dissenting), that the facts set forth constituted a cause of action, and afforded sufficient grounds for the equitable interference of the court; that, therefore, the court had jurisdiction to issue the injunction order; and that the parties violating it were 'properly adjudged guilty of, and punished for contempt.</p> <p>The opposing affidavits alleged that the attachment was not served until after the in j unction order was issued. Held, that conceding this to be so, while it may have tended to show that the judge who issued the order acted erroneously, and so might have been availed of on motion to set-it aside, it did not affect his jurisdiction and could not be used to impeach collaterally the validity of his order.</p> <p>Plaintiffs obtained judgment in the attachment suit for the amount of their claim. The court in the contempt proceedings imposed a fine to the amount of the judgment. Held, no error, that as it appeared the judgment debtors were insolvent, and as the lien of the attachment was destroyed by the sale, presumably plaintiffs’ loss was the amount of the judgment, and in the absence of any proof in reduction of damages, the court had no discretion, but were bound to fix the amount of the fine at that sum. (Earl, Ch. J., Finch and Peckham, JJ., dissenting.)</p> <p>The section of the Code of Civil Procedure (§ 608) providing that an injunction order may be granted to accompany the summons is net limited to orders granted under the section (§ 608) authorizing them where it appears from the complaint that plaintiff demands and is entitled to judgment restraining the commission of some act injurious to him during the pendency of the action (Earl, Ch. J., Finch and Peck-ham, JJ., dissenting), but applies as well to orders granted under the section (604) authorizing them "where it appears by affidavit that the defendant during the pendency of the action is doing * * * or threatens, or is about to do, '-' * an act in violation of plaintiffs rights respecting the subject of the action.”</p> <p>The words “during the pendency of the action” have the same meaning in both provisions; they relate to the time when the threatened injury is likely to take place, not to the time when the order may be granted. (Earl, Ch. J., Finch and Peckham, JJ., dissenting.)</p> <p>An order may be granted, therefore, under the latter section, before commencement of the action, to become operative upon service of the summons and order, which may be made at the same time, although the complaint does not ask for an injunction. (Eabl, Oh. J., Finch and Peckham. JJ., dissenting.)</p>

Plaintiff seeks to recover in this action certain claims for taxes. The facts, so far as material, are stated in the opinion. The plaintiff, the village of Oneida, is not entitled to recover of the defendant, the board of supervisors of Madison county, or the county of Madison. Its remedy, if any, is an action to recover the amount of such taxes against the collector of the town of Lenox, who received such sums, or the sureties on his bond.

<p>Provisions in a municipal charter, pointing out tile mode of payment of a matured debt, operate only when ultimate payment is required, and do not apply where, by the extension of the debt, its payment is in fact postponed.</p> <p>The provision of the charter of the city of Poughkeepsie (§ 125, chap. 523, Laws of 1883), prohibiting its common council from borrowing any money, or creating “ any pecuniary obligations whatever on the part of the city, which shall not be payable in the current year, and which cannot be discharged from the income of the same year,” is not in conflict with the provision of the Refunding Act of 1878 (Chap. 75, Laws of 1878, as amended by chap. 526, Laws of 1889), which authorizes the ■ extension of the bonded debt of a village, city or county, for a period not exceeding thirty years, by an exchange of old for new bonds, or by the issue and sale of new bonds, the proceeds to be applied to the cancellation of the old ones.</p> <p>Accordingly held, that bonds issued and sold by the city, pursuant to said act of 1878, to retire its water bonds issued under the act of 1867 (Chap. 888, Laws of 1867) were valid; that while the transaction was in form a borrowing of money, it was in reality simply refunding an existing debt.</p> <p>It seems said act of 1878 applies to all the municipalities in the state, without reference to their charters or the statute under which the indebtedness sought to be refunded was created, and is an enabling act of which any city may avail itself.</p>

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made May 12, 1892, which affirmed an order of Special Term denying an application for a peremptory mandamus directed to the hoard of supervisors of Cayuga county to compel that body to rescind certain resolutions directing the county treasurer to repay to certain of its towns which had issued bonds in aid of a railroad corporation under the act of 1866 (Chap. 577, Laws of 1866) taxes arising from assessments upon the property of said corporation within the limits of said municipalities, which application was based on the ground that such assessments were made subsequent to the time when the bonds had matured and been paid in full.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>A town which has paid its railroad bonds and indebtedness more than six years ago, cannot recover against the county the amount of taxes since assessed on railroad property in such town. (Strough v. Bd. Suprs., 119 N. Y. 212; Johnson v. H. R. R. R. Co., 49 id. 455; In re Miller, 110 id. 222; Stevens v. Ogden, 130 id. 182; Swift v. Luce, 27 Me. 285; Wood v. Bd. Suprs., 50 Hun, 1; Bd. Suprs. v. Ellis, 59 N. Y. 624; People ex rel. v. Bd. Suprs., 73 id. 173; People v. Suprs., 17 Wkly. Dig. 139.) A person or municipal corporation may waive a statutory right. (In re Cooper, 93 N. Y. 507; Tombs v. R. & S. R. R. Co., 18 Barb. 583; Duryee v. Mayor, etc., 96 N. Y. 477.) The discretion of the court to grant or refuse the writ is not absolute, but is governed by legal rules and its exercise is subject to review in this court. (People ex rel. v. Chapin, 104 N. Y. 96.)</p> <p>The interpretation of this statute contended for by the relator, imposes a penalty upon the debtor town for its fidelity and promptness in meeting its obligations, since if the bonds mature and are paid by the town at maturity, otherwise than by the use of the taxes levied and collected of the railroad within the town, and paid into the county treasury for that purpose, that which has been denominated, by this court as an appropriation of taxes, as a special fund for the payment of the bonds of the town (119 H. Y. 216), ceases to be such, and the beneficial ownership or property right acquired in the taxes thus assessed and collected and paid into the county treasury is lost to the town, because there are in fact no “ bonds outstanding ” to the payment of which those taxes could be applied. (Laws of 1866, chap. 466; Clark v. Sheldon, 106 N. Y. 111.) The act of 1869, as amended by chapter 283 of Laws of 1871, gives to the municipality bonded, in its corporate capacity, the beneficial ownership of the fund created by the taxes collected from such railroads, when it directs their application to’ discharge a corporate obligation. (Strough v. Bd. Suprs., 119 N. Y..217; Bridges v. Bd. Suprs., 92 id. 570.)</p>

This was an application under the provisions of the Code of Civil Procedure (§ 2481, subd. G), to open a decree made by the surrogate of Saratoga county March 25, 1890, on the final settlement of the account of Charles Leach, as general guardian of Lottie Leach Brown. On October 21, 1869, Sarah Jane Leach died intestate, leaving her surviving Charles Leach, her husband, and Lettie Leach, a daughter, who was born June 5, 1868.

petitioner’s road should be constructed and operated, and the other made December 10, 1890, which confirmed the report of such commissioners. The petitioner was organized April 11, 1890, under the Eapid Transit Act by commissioners appointed by the mayor, of the city of Brooklyn, December 13, 1889. It was authorized to construct an elevated railroad through Atlantic avenue in Brooklyn from the East river to the city line.

This action was brought by plaintiff as receiver of the First National Bank of Auburn to recover the amount of certain certificates of deposits paid to defendant. The facts, so far as material, are stated in the opinion. This transfer and payment was made after the commission of an act of insolvency, or in contemplation thereof, and with a view to prevent an application of the assets in the manner prescribed, or with the view to the preference of one creditor to another.

<p>By a contract of sale of certain machinery and material to he used in the manufacture of goods, the title was to remain in the vendors until the property was paid for; the purchaser was given the privilege of selling the goods manufactured from such material, on condition that the proceeds be applied in payment of the purchase price. Said goods were sold and proceeds applied as agreed. Thereafter the purchaser of the machinery contracted a debt and, in an action to recover the same, the machinery was attached and sold. At the time of the levy part of the purchase money remained unpaid. In an action by the vendor for conversion, held, that the agreement constituted no fraud upon the creditors of the purchaser and was valid; that the permission to manufacture and sell, coupled with the condition as to application of the proceeds, did not impair the rights of the vendor.</p> <p>$\, the vendee had contracted to manufacture certain castings for a customer for §240; she executed a bill of sale of said castings to plaintiff as payment upon a debt of §310; at the time some work remained to be done to complete the castings and they were left in the possession of F., to be completed. Before completion and while this work was in progress they were levied upon by defendant under the attachment. Held, that while under the statute the transfer although absolute, was presumptively fraudulent as against the attaching creditors, by reason of the fact that there was no actual change of possession (2 R. S. 136, § 5), the evidence fully repelled the statutory presumption and the trial court was justified in refusing to submit the question of fraud to the jury.</p>

Appeal froiji judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 11, 1891, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion. The assignment having preferred a purely fictitious debt, in judgment of law, operates to hinder, delay and defraud creditors, and should, therefore, be adjudged void.

This was an action brought hy plaintiff, among other things, to have a chattel mortgage, executed hy the firm of Barr & Miller to the defendants, George A. Gane and Thomas T. Gane, declared void, and the lien of certain judgments, recovered by plaintiff against said mortgagors, declared prior thereto. The facts, so far as material, are stated in the opinion.

Lasalc, deceased, to join in a compromise agreement signed by all the other parties interested. The facts, so far as material, are stated in the opinion. The Supreme Court has no power to compel a testamentary trustee to enter involuntarily and against its own judgment into such an agreement as a matter of compromise, the effect of which will be to extinguish the trust and to enable the cestui que trust to alienate her beneficial interest in the trust estate. (Story’s Eq.

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made October 23,1891, .which reversed an order of Special Term continuing a prelimin-. ary injunction in an action brought by plaintiff to restrain the defendant, the Associated Press of the State of New York and the members of its executive committee, from expelling or sus-, pending the plaintiffs from membership. _</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The twenty-fifth by-law of the Associated Press of the state of New York is one which the corporation had no authority to adopt, and no right to enforce. (2 Kent’s Comm. 296.) The by-law is unreasonable, because it interferes with the common-law rights of property and is in restraint of trade. (People v. Marx, 99 N. Y. 377; People v. Gillson, 109 id. 399; Fisher v. Bush, 35 Hun, 641; Thomas v. M. P. Union, 49 id. 171; Hesketh v. Braddock, 3 Burr. 1858; Dunmakers v. Fell, Willes, 384; Rex v. Coopers Co., 7 T. R. 543; 35 Penn. St. 151; Adley v. Reeves, 2 M. & S. 53 ; Morawetz on Corp. § 494; Boone on Corp. § -57.) The by-law in question is void because it impairs and destroys vested property rights. (Kent v. Q. M. Co., 78 N. Y. 150; Fisher v. Bush, 35 Hun, 641; Descroll v. W. B. & C. M. Co., 59 id. 96-102; People v. B. Society, 3 Hun, 364.) It is in conflict with the Constitution of the state of New York. (People ex rel. v. S. F. B. Society, 24 How. Pr. 216.) The by-law in • question was designed purely and simply to break down the Hnited Press Association and drive it out of the field as a news agency. Such a by-law in its scope and purposes cannot be regarded with any favor by this court, and ought not to be permitted to be enforced. The plaintiffs by being a member of the Associated Press did not bind themselves to observe any unlawful feature of the constitution and by-laws. (Thomas v. M. P. Union, 49 Hun, 171; Sayre v. L. U B. Ass'n, 1 Duval, 142.)</p> <p>The law under which defendants were incorporated (Chap. 754, Laws of 1867) gave the defendants the right clearly to make this by-law. (Kent v. Q. Co., 78 N. Y. 159; Fisher v. Bush, 35 Hun, 641; Driscoll v. B. & C. M. Co., 59 N. Y. 96; Arnot v. P. & E. C. Co., 68 id. 558; Hodge v. Sloan, 107 id. 244; Leslie v. Lorrillard, Id. 519.) Defendants have agreed to furnish the plaintiffs all then* news dispatches, and plaintiffs have agreed to buy news dispatches of no one else who is a rival. Such an agreement is not in restraint of trade and is not void from public policy. Plaintiffs are not in a position to call upon the equity powers of this court for an injunction, on the ground that this by-law which is no more or less than a contract between the parties, is ultra vires. The plaintiffs have enjoyed the benefit of this by-law for many years, and retaining the benefit they are estopped. (D. M. Co. v. Roeber, 106 N. Y. 473.)</p>

The facts, so far as material, are stated in the opinion. The affidavits of service of Decker & Doty, on which alone the judgment was rendered, are entirely insufficient to support it.

<p>When a statute amends a former statute “so as to read as follows," it operates as a repeal by implication of inconsistent provisions in the former law and of provisions therein omitted in the latter.</p> <p>When the amendatory act re-enacts provisions in the former law, either ipsissimis verbis or by the use of equivalent though different words, the law will be regarded as having been continuous, and the new enactment, as to such parts, will not operate as a repeal, so as to affect a duty accrued under the prior law, although, as to all new transactions, the later law will be referred to as the ground of obligation.</p> <p>Accordingly held, that the act of 1891 (Chai). 215, Laws of 1891), which amends, “ so as to read as follows,” the first section of the Collateral Inheritance Act of 1885 (Chap. 483, Laws of 1885), as amended in 1887 (Chap. 713, Laws of 1887), did not operate to prevent the subsequent assessment and collection of a tax on the estate of a decedent, who died intermediate the act of 1887, and that of 1891.</p> <p>The act of 1890 (Chap. 553, Laws of 1890), amending, “so as to read as follows,” the provision of the act of 1889 (§ 1, chap. 191, Laws of 1889), in relation to certain corporations organized for other than business purposes, which amendment exempts the religious, charitable and other corporations named therein from general taxation on personal property, and from the Collateral Inheritance Act, applies only to domestic corporations.</p> <p>Accordingly held, that foreign religious and charitable corporations were not exempted from the payment of a legacy tax.</p> <p>Also held, that the act of 1887 (Chap. 376, Laws of 1887), conferring upon the American Board of Commissioners for Foreign Missions a limited privilege of taking and holding real and personal property in this state, did not relieve it from such a tax.</p> <p>A state statute granting powers and privileges to corporations, in the absence of plain indications to the contrary appearing on the face of the act, applies only to corporations created by the state.</p>

The question arising in this case was as to the light of the state under the provisions of the Revised Statutes (1 R. 8. 529, § 1), and the various amendments thereto to impose duties upon sales of imported goods, made by plaintiff as an auctioneer in the city of Hew York. The facts, so far as material, are stated in the opinion.

This was an action upon a policy of fire insurance. The facts, so far as material, are stated in the opinion. The policy of insurance, issued by the defendant to the plaintiff’s assignor, had become void prior to the fire, by reason of the change of interest, and change of possession, caused by the levy of the execution by the sheriff and the taking possession of the property by him under such levy. (Colt v. P. Ins. Co., 54 N. Y. 598; S. P. Ins. Co. v. Archibold, 16 Ins.

This action was brought upon the bond given by John W. Mills, as administrator of Abigail Hall, deceased, against defendants, as executors of the last will and testament of Samuel E. Lyon, deceased, who was one of the sureties on said bond. The facts, so far as material, are stated in the opinion. There has been no such proper determination of a devastavit on the part of Mills as will enablei the plaintiff to maintain this action against the sureties on Mills’ bond.

Court in the fourth judicial department, entered upon an order made September 8, 1891, which directed a judgment in favor of defendant on submission under the Code of Civil Procedure (§ 1279) of a controversy without action. The facts agreed upon, so far as material, are stated in the opinion.

<p>Where real estate, devised or descended, is sought to be charged with the debts of the decedent, the validity and existence of the debts are open to contest, in the proceeding, by the heirs or devisees, and the decree of the surrogate, on the accounting of the executor or administrator, does not conclude them. (Code Civ. Pro. §§ 3755, 3756.)</p> <p>Under the provisions of the statutes, prohibiting an executor or administrator from retaining any of the property of the decedent, in satisfaction of his own debt, until it is proved before the surrogate (3 R. S. 88, § 33), and providing that such proof may be made upon bis final accounting, and that the Statute of Limitations shall not be available as a defense to such debt, if presented at the first accounting, provided the claim was not barred by the statute at the time of the decedent’s death (§ 37, chap. 460, Laws of 1837, as amended by chap. 594, Laws of 1868; Code Civ. Pro. §§ 2739, 2740), the running of the statute is suspended from the time of the death until the first accounting.</p> <p>The rights of creditors of decedents, who died and upon whose estates letters had been granted more than three years prior to September 1, 1880, when the provision of the Code of Civil Procedure (§ 2750) went into effect, which provides that “at any time within three years” after the granting of letters, an executor, administrator or creditor of the decedent may institute proceedings for the sale of his real estate for the payment of debts, were not cut off by that provision; but, as they existed at that time, were saved by the provision (§ 3352) which enacts that nothing contained in any provision of that portion of the Code (save as excepted) renders ineffectual or impairs any right accrued or established before the provision takes effect, and that, for the purpose of enforcing such a right, the statutes in force on the day before the provision takes effect are deemed to remain in force.</p> <p>When power is conferred by will upon an executor to sell real estate for the payment of debts, he may lawfully exercise it for the payment of an honest debt, in no way invalid or outlawed, owing to himself.</p> <p>The will of M., who died in 1873, devised her residuary estate to P., her executor, in separate trusts for her three children during life, and authorized him, “at any time before the final division and settlement” of the estate, for any purpose “which, in his discretion, may render it advisable so to do,” to sell any part or portion of the testator’s real estate. No accounting or judicial settlement of the accounts of the executor was had prior to September 29, 1887, when P. instituted proceedings, before the surrogate for such judicial settlement, which was had, and a decree entered April 24, 1890. In the accounting, P. presented certain claims against the estate, which were allowed, and to the payment of which the surrogate applied the final balance found against P.; this left a balance still due him, and he had no assets in his hands as executor to pay it. At this time one of the testator’s children was still living. P. thereafter, as executor, sold at public auction a parcel of the real estate devised by the will for the purpose of realizing money to pay the balance so found due him. The purchaser declined to accept a conveyance on the ground that it would not convey a good title. Held, untenable; that the portion of P.’s claim unpaid at the time of the decree was not barred by the Statute of Limitations; nor was his right as a creditor to procure the application of the real estate for the payment of his debt, barred; and that the power of sale given him by the will could be lawfully exercised for the payment thereof.</p>

<p>Appeal from judgment of court of general sessions of the peace of the city and county of New York, convicting defendant of murder in the first degree, and from order denying motion for new trial, j</p>

. This was an action to recover the amount of two deposits of money made by plaintiff with defendant, for .which certificates of deposit were issuéd to him, which stated that he had deposited the moneys to his credit and payable to his order.

The nature of the action and the facts, so far as material, are stated in the opinion. Since the existence of a railroad corporation having power to issue stock and to construct a road to he aided, under the Town Bonding Act of 1869, lies at the foundation of the power to issue municipal bonds, and no valid corporation was in reality organized, the entire issue of bonds was void.

<p>Under the provisions of the Code of Criminal Procedure (§ 593) and of the Hew York Consolidation Act (§ 1480, chap. 410, Laws of 1883) in reference to the forfeiture of recognizances, where a principal makes default and his non-appearance is entered in the minutes of the court, the recognizance becomes ipso facto forfeited and no further or formal order is necessary to fix the liability of the sureties; it then accrues and becomes absolute upon the record.</p> <p>The subsequent surrender of the principal does not of itself work an exoneration of the sureties.</p> <p>Conceding that under the said provision of the Consolidation Act (§ 1480) the entry of an order declaring the forfeiture of a recognizance is a prerequisite to the right of the people to summarily enter judgment, where the record shows that a forfeiture has been incurred the court has power, upon the application of the district attorney, to cause such an order to he entered at any time, and upon filing a certified copy thereof, with the recognizance, judgment may be entered.</p> <p>An arrest of the principal upon a bench warrant after a forfeiture, his discharge upon Ms entering into another recognizance, and his appearing, and answering in accordance therewith, is no defense to an action upon the first recognizance.</p> <p>On March 19, 1893, the surety upon the bond of J. who had been held to answer for an alleged offense, was notified of an indictment found and that Ms principal must be produced for trial on the twenty-first; on that day J. was duly called and failed to appear, an entry was thereupon made in the minutes of the court, to the effect that he not appearing pursuant to the recognizance, on motion of the district attorney it was ordered that the recognizance, with a certified copy of the order, should he filed in the county clerk’s office, and judgment entered thereon. The principal witness for the prosecution was at the time in confinement to secure his appearance at the trial. After the default he obtained a writ of habeas corpus, and on March twenty-eight procured his discharge. On April first, and after the term, of the court had expired, the surety surrendered his principal, who was thereupon committed to the city prison, from which he was discharged upon his own recognizance, because of the inability of the people to procure the attendance of said witness. Thereafter on motion of the district attorney a formal order was made forfeiting the first recognizance, and upon filing a copy thereof with the recognizance judgment was entered On motion to vacate the judgment and remit the forfeiture it appeared that at the time of the surrender of the principal the surety made a motion for the remission of the forfeiture, that the assistant district attorney, who was not aware of the discharge of the witness, stated that as far as he knew the people were in as good condition to prosecute the principal as when the forfeiture occurred, and thereupon the court orally directed the remission; but no order to that effect was entered or entry made on the minutes. The court thereafter upon being advised of the discharge of the witness, directed the entry of the order declaring a forfeiture. Held, that the oral direction of the court was not sufficient to effect a remission; that the order so directed and entered was within the jurisdiction of, and was discretionary with, the court, and it seems, not reviewable had it been appealed from; and that the clerk had jurisdiction to enter it; also, that the entry in the minutes of March twenty-first was in effect an order forfeiting the recognizance, upon the filing of which with the recognizance, judgment might have been ■entered.</p>

Y., $280, to be expended by them for the relief of indigent soldiers, sailors and marines,, and to accept and pay certain orders in addition thereto issued theretofore by the officials of said post for the relief of said veterans. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The court below erred in its construction of the stipulation. (1 Black. Comm. 87-91; Potter’s Dwarns on Stat. 121, 146, 174, 264; Sedg. on Stat. Const. 225-246; Cooley on Const.

This action was brought to obtain equitable relief by injunction and also to recover damages on account of the maintenance and operation, by defendants, of an elevated railroad in front of plaintiff’s' premises on Sixth avenue, in the city of New York. Further facts are stated in the opinion.

The facts, so far as material, are stated in the opinion. There was undue influence ■exercised in the execution of the will and the burden of giving a reasonable explanation rests upon proponents. (In re Budlong, 126 N. Y. 433; 1 Redf. on Wills, 314, 316-323; 2 Whart. on Ev. 897; Abb. Tr. Ev. 133, 134, 135; Horn v. Pollman, 72 N. Y. 269; Code Civ. Pro. §§ 2586-2588; Plyer v. G. A. Ins.

This action was brought to set aside and cancel of record as a cloud on plaintiff’s title a deed by the Trustees of the Freeholders and Commonalty of the Town of Easthampton to the defendant. The town of Easthampton is a municipal corporation incorporated under and by virtue of a colonial charter or patent known as the Dongan Patent, dated December 9, 1686.

This action was brought to recover damages of the defendant for injuries alleged to have been sustained by the elevation of a part of the roadway of Commercial street, in the city of Buffalo, in-front of her premises, which she alleges to be an unlawful encroachment upon the street, an obstruction to her lawful rights in it and a nuisance.

<p>Appeal from judgment of the supreme court, general term, fifth department, reversing judgment of the court of sessions of Wayne county, convicting defendant of libel, and dismissing indictment and discharging defendant,.'</p>

* This action was brought to recover damages for obstructing plaintiffs’ means of access from their land to the Hudson river.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made July 11, 1891, which affirmed'a judgment in favor of plaintiff entered upon a verdict.</p> <p>This was an action upon a policy of fire insurance issued by defendant to plaintiff.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Under the limited and restricted power of the agent Young as to waiving any condition in the policy, the trial court erred in allowing the plaintiff to show the oral waiver as to subsequent insurance. (Walsh v. H. Ins. Co., 73 N. Y. 5; Marvin v. U. L. Ins. Co., 85 id. 278; Quinlan v. P. W. Ins. Co., 133 id. 356; Allen v. G. A. Ins. Co., 123 id. 6; Messelblack v. S. F. Office, 122 id. 583; Armstrong v. A. Ins. Co., 42 N. Y. S. R. 555; Hill v. L. A. Corp., 30 id. 539; 33 id. 65; Ripley v. A. Ins. Co., 30 N. Y. 161; O’Brine v. P. Ins. Co., 45 N. Y. S. R. 389; Hess v. W. F. & M. Ins. Co., 33 id. 730; 125 N. Y. 764; Kyle v. C. A. Co., 144 Mass. 46; Hale v. M. M. L. Ins. Co., 6 Gray, 169; Smith v. N. F. Ins. Co., 60 Vt. 682; Schachne v. H. B. F. Ins. Co., 10 N. Y. S. R. 705; Hawkins v. R. Ins. Co., 70 Wis. 1; Warren v. P. Ins. Co., 47 N. Y. S. R. 421; McIntire v. M. S. Ins. Co., 52 Mich. 188; Rawlin v. H. F. Ins. Co., 36 Minn. 433; Lee v. H. Ins. Co., 3 Gray, 586; B. Ins. Co. v. Gibbons, 43 Kans. 15.) The local agent could only waive or change the policy in the manner provided for in the policy. (Walton v. A. Ins. Co., 116 N. Y. 317; 122 id. 317; 144 Mass. 46; 6 Gray, 173; 2 Cush. 265; 11 id. 263; 70 Wis. 1; 60 Vt. 682; 125 N. Y. 764; Coldwater v. L., L. & G. Ins. Co., 39 Hun, 178; 109 N. Y. 618; 133 id. 356.) The learned trial court held that inasmuch as the agent did not cancel the policy within five days after he received oral notice of the subsequent insurance, that was in law a waiver of the condition as to other insurance. This was error. ( Willims v. P. Ins. Co., 57 N. Y. 284; Allen v. M. Ins. Co., 99 Mass. 160; Liftman v. N. F. Ins. Co., 121 N. Y. 554; Holly v. M. L. Ins. Co., 105 id. 437.) The policy was not severable. (Smith v. A. Ins. Co., 118 N. Y. 518; Geiss v. F. Ins. Co., 129 Ind. 172; Merrill v. A. Ins. Co., 73 N. Y. 452; 118 id. 526.) The court erred in not granting a new trial upon the judge’s minutes, as there was no evidence tending to prove that the power of the agent, as limited and restricted by the policy, had in any manner been changed or enlarged. (Armstrong v. A. Ins. Co., 12 N. Y. S. R. 555; O'Brien v. P. Ins. Co., 45 id. 392.) There was no evidence to uphold the verdict. It was contrary to law. (O'Reilly v. L. A. Corp., 101 N. Y. 576.)</p> <p>The provision in the policy, that consent by defendant to other insurance should be indorsed in wilting upon the policy, was waived and the company stopped from setting up that provision as a defense. (Pechner v. P. Ins. Co., 65 N. Y. 195; Carroll v. C. O. Ins. Co., 1 Abb. Ct. App. Dec. 316; Parker v. A. F. Ins. Co., 59 N. Y. 1; Van Allen v. F. J. S. Ins. Co., 10 Hun, 399; Ames v. N. Y. U. Ins. Co., 14 N. Y. 253; Goit v. N. P. Ins. Co., 25 Barb. 189; Pitney v. G. F. Ins. Co., 61 id. 335; Whitwell v. P. Ins. Co., 6 Lans. 166; Baldwin v. C. Ins. Co., 39 N. Y. S. R. 752; Steen v. N. F. Ins. Co., 89 N. Y. 315; Van Schaick v. N. F. Lis. Co., 68 id. 434, 438; Broadhead v. L. F. Ins. Co., 23 Hun, 397; Woodruff v. I. F. Ins. Co., 83 N. Y. 152; Haight v. C. F. Ins. Co., 92 id. 53; Ansell v. H. F. Ins. Co., 59 id. 171; Laniers v. W. F. Ins. Co., 86 id. 414.) The time of furnishing proofs of loss may be waived by agent and adjuster. (Smith v. H. Ins. Co., 47 Hun, 30; Bishop v. A. Ins. Co., 130 N. Y. 488; Goodwin v. M. M. L. Ins. Co., 73 id. 480; Jones v. H. F. Ins. Co., 26 N. Y. S. R. 844; Brown v. H. F. Ins. Co., 23 id. 683.)</p>

<p>Appeal from judgment of the supreme court,- general term, ¡second department, affirming a judgment entered on conviction of misdemeanor under chapter 711, Laws 1892,</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The widow of the testator is, by the provisions of the will, entitled to the profits which arose from the purchase and sale of the government bonds to the amount of $30,000. (Lansing v. Tompkins, 45 Barb. 316; Duelos v. Benner, 5 N. Y. Supp. 733.) It was the right and duty of the executors to appeal and bring this important question before the court at General Term.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment is appealable to this court. (Code Civ. Pro. § 191.) The court erred in denying defendant’s motion for a nonsuit.

The questions involved and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The defendant was exempt from service, he being in the state for the sole purpose of attending the taking of testimony before a notary public in another action to which he was a party. (Meekins v. Smith, H Bl. 636; Norris v. Beach, 2 Johns. 294; Bours v. Tucherman, 7 id. 538; Hopkins v. Coburn, 1 Wend. 292; Clark v. Grant, 2 id. 257; Sanford v. Chase, 3 Cow. 381; Seaver v. Robinson, 3 Duer, 622; Dixon v. Ely, 4 Edw.

The complaint set forth a written instrument, the material portions of which are as follows: “Memorandum of agreement made and concluded this twenty-eighth day of March, A. D. one thousand eight hundred and sixty-four (1864), between George C. Genet and Augusta G. Genet, his wife, of the city, county and state of Flew York, of the first part, and the president, managers and company of the Delaware and Hudson Canal Company of the second part, witnesseth : That the said…

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 31, 1891, which modified, and affirmed as modified, a judgment in favor of defendants entered upon the report of a referee.</p>