Volume 14 — Bedell

This action was brought for the purpose of ousting the defendant from his office as notary public, for having accepted from the Wagner Palace Car Company a free pass for his use and benefit, and having used the same upon the cars of said Wagner Palace Car Company while being transported over the line of the Delaware and Hudson Canal Company, in violation of section 5 of article 13 of the State Constitution.

Appeal, by permission, from an interlocutory judgment entered April 4, 1903, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of Special Term sustaining a demurrer to the complaint and overruled such demurrer. The following questions were certified: “ I. Ought the demurrer to the complaint in this action be sustained ? “ II.

The nature of the action and the facts, so far as material, are stated in the opinion. The use by the defendant of the words “ Warranted Chemical Roach Salt ” is no infringement of any trade mark owned by the plaintiff. (Clotworthy v. Schepp, 42 Fed. Rep. 82; C. M. Co. v. Alcorn, 150 U. S. 460; Gessler v. Grieb, 80 Wis. 21; Gilman v. Hunnewell, 122 Mass. 139; L. H. H. D. Co. v. Stucky, 46 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff is not within the scope of the limitation prescribed by section 83 of the city charter. The action is one to remove a cloud on title and the setting aside, canceling or annulling of the assessment which is sought is only to the extent that it forms a lien and cloud upon the title. (Scott v. Onderdonk, 14 N. Y. 9; Breman v. City of Buffalo, 13 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned, trial judge erred in overruling plaintiff’s objections to answers that violate the rule of evidence which requires a witness to state facts or conversations and not give conclusions or opinions upon the question which the jury is to determine.

the county of Hew York, rendered February 27, 1903, upon, a verdict convicting defendant of the crime of murder in the first degree; also from two orders of said court denying motions for a new trial and in arrest of judgment, respectively. The indictment charged that on the 6th of October, 1902, at the borough of Manhattan, county of Hew York, the defendant, feloniously and with malice aforethought, took the life of Josephine Santa Petro by shooting her with a revolver.

<p>1. Practice — Continuance of Action in State Court against Receivers Appointed by Federal Court after Their Discharge — Code Civ. Pro. § 756. An action against railroad receivers appointed by a federal court brought in the Supreme Court of the state of New York under the Revised Statutes of the United States, authorizing the bringing of actions without previous leave of the court against a receiver appointed by a federal court in respect to any act or transaction of his in carrying on the business connected with the property, is not necessarily terminated as to them by their subsequent discharge and the transfer of the property pursuant to a decree of foreclosure and sale made by the federal court, and the plaintiff is not obliged to substitute the purchaser thereunder as defendant before proceeding to judgment; under section 756 of the Code of Civil Procedure, in case of a devolution of liability, the court may substitute the party upon whom the liability is devolved, but when it does not, the action is properly continued against the original parties.</p> <p>2. Same. The fact that the statute authorizing the bringing of the action contains the provision, “ But such suit shall be subject to the general .equity jurisdiction of the court in which such receiver was appointed,” does not require the discontinuance of the action against the receivers after their discharge, upon the ground that the federal court having provided by the decree a method for establishing claims against the fund that was in the hands of the receivers, that method is exclusive; since Congress intended to permit claims to be established through the ordinary local judicial machinery, although their payment must be decreed by the federal court alone, especially in a case where the decree makes no provision that the method therein provided is exclusive and assures all the creditors that their claims, whether established or not at the time of the sale of the property, shall be paid.</p> <p>8. Evidence — Competency oe Tax Deed. Under section 132 of the Tax Law (L. 1896, ch. 908) a tax deed executed by a county treasurer, which has for two years been recorded in the office of the clerk of the county in which the lands conveyed thereby are located, is admissible in evidence without proof of the regularity of the proceedings upon which it is based.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The referee committed errors in the exclusion of testimony prejudicial to the appellant. (Herzfeld v. Reinach, 44 App. Div. 326; Sharpe v. Freeman, 45 N. Y. 802; Lathrop v. Bramhall, 64 N. Y. 365.) The order of reference, the reference, the report and the judgment entered upon it are wholly void, by reason of the referee’s disqualification. (Const.

The nature of the action and the facts, so far as material, are stated in the opinion. It was manifest error to exclude the testimony of Mr. Copeland to show what it would have cost to reproduce the lost articles.

The nature of the action and the facts, so far as material, are stated in the opinion. Failure of plaintiff to read the instrument in question or to have it read to him was not such negligence as deprived him of the right to show that the instrument was obtained by mistake of plaintiff and by means of fraudulent statements made by defendant’s agent.

<p>Guardian and Ward — Check Drawn by Guardian Notice to Payee That Fund Belongs to Ward — Funds Mingled with Those of the Ward Belong Presumptively to Ward — Burden of Proof. Checks drawn upon a guardian’s account in which moneys belonging to a corporation of which he was the manager had also from time to time been deposited, signed by him as guardian, and given in payment of a debt due from the corporation, give presumptive notice to the payee that the funds paid him were not those of the corporation or of the drawer personally, and he is put on inquiry to ascertain the latter’s authority tó apply the money in payment of the debt; presumptively, all the moneys in the account belong to the wards, and in the absence of affirmative proof that at any time any particular sum on deposit was the property of the corporation they are entitled to recover the proceeds of the checks.</p>

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The grants to Josiah Wilcox by the latter’s deeds were simply grants of dry land for the express purpose of being flooded by the waters of Byram pond, and did not carry with them the fee to any part of the bed of the pond.

The nature of the action and the facts, so far as material, are stated in the opinion. It was at least a question of fact for the jury whether or not Culbert was the agent of the defendant. (Lindmeir v. Monohem, 64 Iowa, 24; Lindley on Part. 167; Lovell v. Hicks, 2 G. & C. 46; Taylor v. Thompson, 62 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in denying defendant’s motion for a nonsuit. (1 May on Ins. § 144; Allen v. G. A. Ins. Co., 123 N. Y. 6; Quinlan v. P. W. Ins. Co., 133 N. Y. 356; Walsh v. H. Ins. Co., 73 N. Y. 11; Moore v. N. Y. B. F. Ins. Co., 130 N. Y. 543; Forward v. C. Ins. Co., 142 N. Y. 382; Conway v. P. L. & M. Ins. Co., 140 N. Y. 83; Wilkis v. S. Ins.

writ of mandamus. The nature of the proceeding and the facts, so far as' material, are stated in the opinion. It is competent for the legislature, under the Constitution, to lengthen the terms of office of town officers in advance of their election. (Const, of N. Y. art. 10, § 2; People ex rel.

verdict convicting the defendant of the crime of murder in the first degree. The facts, so far as material, are stated in the opinion.

In December, 1897, Frank Smith recovered a judgment against this plaintiff and the defendants, Theodore Gr. Smith and Stephen W. Adwen, for $1,125.13, in an action to recover damages for wrongful and malicious conduct. Adwen appealed and gave an undertaking, with this respondent, the National Surety Company, as surety. Subsequently, his appeal was dismissed and the judgment was affirmed.

<p>1. White Plains (Village or)—Invalidity or Contract Made by Authorities Thereor to Purchase Property or Water Works Company —Agreement as to Appraisal by Arbitrators. Where an agreement made by and between a water works company and the authorities of the village of White Plains on July 1, 1886, in which the village agreed to take and the water works company agreed to supply water for municipal and fire purposes for a period of five years at a stipulated price, contains a clause providing that the village should have the right at the end of stipulated periods to purchase the water works by giving the company one year’s notice of such intention and paying to said company a valuation to be determined and appraised by a board of arbitrators, chosen as therein provided, such valuation in no case to exceed the cost of the works more than ten per cent, the purchase clause is ultra vires and void, and cannot be enforced by or against the village.</p> <p>8. Same —Appraisal or Property or Water Works Company Made by Commissioners in Condemnation Proceedings — Illegal and Erroneous When Based upon Invalid Contract or Purchase. Where the board, of water commissioners of the village of White Plains, appointed by the statute (L. 1896, ch. 769), with power to supply the village with water and to acquire by purchase or condemnation all water, water rights and property necessary therefor, whether owned by individuals or water companies, instituted condemnation proceedings pursuant to such statute to acquire the property of a water works company then supplying the village with water under the contract of July 1, 1886, and the commissioners appointed in such proceeding instead of appraising such property, including the good will and franchise of the company, at its full value, as provided by the statute, refused to be governed thereby and determined the value of the real property, and plant of the company in the manner provided for by the contract of July 1, 1886, without any award for the franchise rights of the company, such determination and award are illegal and erroneous and must be set aside and a new appraisal ordered before new commissioners to be appointed by the court.</p>

of habeas corpus and certiorari and remading him to custody, and sustained such writs and directed that the relator be discharged. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The stipulation to pay and satisfy any judgment contained in the condition of the bond of indemnity means (1) a valid judgment and (2) a final judgment in the Court of Appeals, and is not restricted to a judgment of the trial court.

<p>1. Murder—Evidence—Insanity.</p> <p>Evidence upon the trial of an indictment for murder reviewed and held sufficient to sustain a verdict convicting the defendant of the crime of murder in the first degree, including as an essential part of such verdict the finding that the defendant was sane when he committed the act.</p> <p>2. Same—Refusal by Coubt to Appoint Commission to Examine Defendant—Code Cbim. Pboc., Sec. 658.</p> <p>Where the trial court, at the opening of a trial for murder, upon the request of counsel for defendant, appointed two expert physicians to examine the defendant and report as to his sanity, and after the adjournment had the physicians, together with a third who had had charge of defendant, reported him as sane, the court was justified in denying a motion, based upon the affidavits of defendant’s attorneys, for a commission, under section 658 of the Code of Criminal Procedure, to examine and report as to defendant’s sanity at the time of the examination, where no evidence is presented to controvert the previous report of the medical experts, except the affidavits of his counsel, which contained few facts and consisted mainly of the expression of their own opinions, unsupported by the affidavit of any physician.</p> <p>3. Same—Chabge as to Insanity.</p> <p>A charge that “ if evidence is given tending to establish insanity, then the general question is presented whether the crime, if committed, was committed by a person responsible for his acts; and upon this question the presumption of sanity and the evidence are all to be considered, and the prosecutor holds the affirmative, and if a reasonable doubt exists as to whether the prisoner is sane or not he is entitled to the benefit of that doubt.”</p> <p>4. Same.</p> <p>The court is not bound to charge in the language of counsel, provided the substance of the request was fairly covered in the body of the charge.</p> <p>5. Same.</p> <p>It is not error for the court to charge that it was not “necessary that every circumstance should be proved beyond a reasonable doubt,” where the court did not mean that every circumstance, constituting a link in the chain of circumstances, necessary to establish "the fact of killing by the defendant” need not be proved beyond a reasonable doubt, but that every incidental circumstance, such as those bearing upon the probabilities that the main circumstances were .true, or that every fact essential to convict, such as “the death of the person alleged to have been killed,” need not be proved beyond a reasonable doubt.</p> <p>6. Same—Code Cbim. Pkoc., Sec. 528.</p> <p>Moreover, only errors raised by exception required a new trial, and it is only when the Court of Appeals is satisfied that' the verdict was against the weight of evidence or against law, or that justice requires a new trial, that it is permitted to reverse whether an exception has been taken or not in the court below.</p>

<p>1. Murder—Evidence to Sustain Verdict op—Insanity .</p> <p>The evidence upon the trial of an indictment for murder reviewed and held sufficient to sustain a verdict convicting defendant of murder in the first degree, where the question of defendant’s sanity was one for the jury.</p> <p>Y. Same—Appeal.</p> <p>, The power conferred upon the Court of Appeals in the review of capital cases is not called into exercise by the appearance of some error which no exception pointed out, and which cannot be seen to have affected the substantial rights of the accused.</p>

The Appellate Division had the power and should have modified the judgment in accordance with the undoubted law of the case so as to give preference to the claim of the bank. (Code Civ. Pro. § 3401.) It is admitted upon the record that no appeal to the Appellate Division was taken by the appellant, the Western National Bank, against the plaintiff or his judgment herein.

This action was brought to recover several installments due under a paving contract providing for the payment of a part of the contract price in ten annual installments. The obligation to pay does not depend upon any demand to be made by the contractor, but follows from the words of the contract. Under such circumstances the debt carries interest from the day the moneys were payable.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 1, 1903, which affirmed an order of Special Term denying a motion to strike the above-entitled action from the Special Term calendar and to send it to be tried at a Trial Term before a jury. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

<p>Railroads—Eminent Domain—Measure op Damages Where a Portion of a Tract of Land Is Taken. Where land is acquired by a railroad company 'without the consent of the owner, he is entitled to recover the market value of the premises actually taken and also any damages resulting to the residue, including those which will be sustained by reason of the use to which the portion taken is to be put by the company.</p>

<p>Bankruptcy—Discharge in, Hot a Defense, or Bar, to Action for Embezzlement and Misappropriation of Funds—Demurrer to Answer Setting up Same as a Defense. Where the complaint in an action of conversion alleges that the defendant did wrongfully and fraudulently embezzle and misappropriate plaintiff’s money, the legal import thereof is that defendant became possessed of the money in a fiduciary capacity, and, hence, his liability thereunder is a liability expressly excepted, by section 17 of the Bankruptcy Law of 1898, from debts released by a discharge in bankruptcy, and defendant’s answer setting up his discharge in bankruptcy as a defense, or bar, to the action is demurrable as insufficient in law upon the face thereof.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 1, 1903, which affirmed an interlocutory judgment in favor of plaintiff and defendants, respondents, entered upon a decision of the court on trial at Special Term.

<p>1. Murder—Evidence.</p> <p>The evidence upon the trial of an indictment for murder reviewed and held sufficient to sustain a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>2. Appeal—Brief of Counsel Should Contain a Fair Statement of Facts.</p> <p>- A fair statement of the facts is essential to a proper presentation of an appeal. An unfair statement is certain to be discovered, and when discovered affects the force of the entire brief. When the facts are not open to review they should be stated as found, or as presented to have been found. When the facts are to be reviewed it is proper for counsel to state them as he claims they should have been found in accordance with the weight of evidence, citing the folios where the evidence appears in the record, but on the criminal points he should ' also state the testimony opposed to his theory, so that the court may have before it a faithful picture of the whole case. A failure te observe these rules increases the labor of the court and reflects upon the integrity of the brief.</p> <p>3. Evidence—Confession to Officer in Charge of Prisoner Procured-by Deception—Code Cbim. Proc., Sec. 395.</p> <p>Cautious and hesitating as courts have always been in regard to confessions made by a person when under arrest to those in authority over him, they have not gone so far as to exclude them, simply because they were procured by deception provided they were voluntarily made.</p> <p>4. Same.</p> <p>In all cases inquiry should be made whether the defendant spoke through fear, or in the expectation of immunity, and when he is under arrest it should also be asked whether he spoke to the magistrate, or to the officer in charge, or in their presence, because he felt that he was compelled to do so for any reason.</p> <p>5. Same—Confessions to Other Prisoners.</p> <p>Voluntary confessions made separately to three fellow prisoners held competent, and that the credibility of the witnesses was for the jury.</p>

The nature of the controversy and the facts, so far as material, are stated in the opinion. An assessment, until confirmed, is not a tax, and, therefore, not legally chargeable as a debt. (Coudert v. Huerstel, 60 App. Div. 85; Lathers v. Keogh, 109 N. Y. 583; Matter of Maresi, 74 App. Div. 79.) Unconfirmed taxes cannot be considered by the commissioners in making their a-ward. (Matter of Mayor, etc., 40 App. Div. 281; Matter of Riverside Park, 59 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 30, 1903, affirming a judgment in favor of defendant entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>As a regular clerk the plaintiff’s relation to the city of Hew York was purely contractual. He was not a public officer. (Steinson v. Bd. of Education, 165 N. Y. 431; Graham v. City of New York, 167 N. Y. 85.) The rule that payment to a cle facto officer, while holding the office and discharging its duties is a defense to an action brought by the de jure officer, has no application to the case at bar. (People ex rel. v. Mayor, etc., 49 App. Div. 208; Terhune v. Mayor, etc., 88 N. Y. 247; Fitzsimons v. City of Brooklyn, 102 N. Y. 536; Steinson v. Bd. of Education, 165 N. Y. 431; Graham v. City of New York, 167 N. Y. 85.)</p> <p>The payment of the salary of an office to the de facto officer will defeat an action brought by the de jure officer to recover salary for the same period. (Dolan v. Mayor, etc., 68 N. Y. 274; McVeany v. Mayor, etc., 80 N. Y. 185; Terhune v. Mayor, etc., 88 N. Y. 247; Demarest v. Mayor, etc., 147 N. Y. 203; Shaw v. Pima County, 18 Pac. Rep. 273; Gorman v. Boise County, 1 Idaho, 655; S. C. Comrs. v. Anderson, 20 Kans. 298; Michel v. New Orleans, 32 La. Ann. 1094; Wayne Co. Auditors v. Benoit, 20 Mich. 176; Parker v. Dakota, Co. Suprs., 4 Minn. 59.) The rule referred to likewise applies to municipal employees. (Higgins v. Mayor, etc., 131 N. Y. 128; O'Hara v. City of New York, 28 Misc. Rep. 258; 46 App. Div. 518; 167 N. Y. 567; Van Valkenburgh v. Mayor, etc., 49 App. Div. 208.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1903, modifying and affirming as modified a judgment in favor of plaintiffs entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Executors and Administrators—When Payment to Foreign Administrator After Appointment of Administrator in this State Discharges Debt. The payment by a savings bank in the city of New York of a deposit, máde -by a decedent who was a resident of another state, to an administrator appointed therein, is good and discharges the indebtedness, although several months prior thereto an administrator had been appointed in this state, when the payment is made in good faith and without actual notice of such appointment and it does not appear that the decedent had any creditors in this state; and the fact that the appointment was a matter of record in the surrogate’s office is not sufficient to charge the bank with constructive notice thereof.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The requests to charge as to navigation rules express well-settled rules of law applicable to the case at bar, and the defendant was entitled to have them given. (The Ariadne, 13 Wall. 475; The Sunnyside, 91 U. S. 208; Belden v. Chase, 150 U. S. 674; The Trave, 55 Fed. Rep. 117; The Catalonia, 43 Fed. Rep. 396; The City of New York, 147 U. S. 72; The Philadelphia, 61 Fed.

On or about October 11, 1895, J. B. Brewster & Co. executed an instrument in writing purporting to be a general assignment for the benefit of creditors, with preferences, to John A. Garver, appellant in this proceeding. Under such instrument Garver took possession of the property of J. B. Brewster & Co., consisting of machinery, fixtures, carriages and other personal property.

The nature of the action and the facts, so far as material, are stated in the opinion. Section 405 of the Code of Civil Procedure, permitting in case of dismissal of the complaint, but not oil the merits, the commencement of a new action after the expiration of the limitation, does not apply to an action brought under a special law creating a right of which time is the essence and forms a constituent element. (Hill v. Bd. of Suprs., 119 N. Y. 344; Hamilton v. R. Ins.

This action was brought to obtain an injunction to restrain the defendants from proceeding to compel the plaintiff railway company to elevate a part of its road in the city of Buffalo and to reconstruct its freight and passenger terminals. The facts, so far as material, are stated in- the opinion.

The nature of the action- and the facts, so far as material, are stated in the opinion. The comptroller’s certifícate of the amount of taxes due in the statement to Munn and the proper receipt therefor in full, given on due request and in obedience to a statute requiring it, created an estoppel against the comptroller and those in privity with him. (Breisch v. Coxe, 81 Penn.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff is not entitled to recover for losses suffered on account of mistakes in grades furnished the contractor by the city surveyor. (Cluff v. Day, 141 N. Y. 580; Roberts & Co. v. Buckley, 145 N. Y. 215; Matter of Laudy, 161 N. Y. 429; Wickham v. L. V. R. R. Co., 85 App.

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

The facts, so far as material, are stated in the opinion. The provisions of the statute under which the position of a deputy tax commissioner is created show that these deputies are within the exception in the Civil Service Law. (L. 1901, ch. 466, § 887; Blust v. Collier, 62 App.

■The facts, so far as material, are stated in the opinion. The commitment was authorized by section 146 of the State Charities Law. (L. 1896, ch. 546; L. 1899, ch. 632: People ex rel. v. Coon, 67 Hun, 523; 51 N. Y. S. R. 339; People v. Cowie, 88 Hun, 498; People ex rel. v. Superintendent, etc., 33 Misc. Rep. 245.) The city magistrate had jurisdiction in this proceeding.

<p>1. Tax—Section 230 of Tax Law, Imposing Transfer Tax upon the Exercise of a Power of Appointment, Constitutional. Subdivision 5 of section 230 of the Tax Law (L. 1896, clx. 908, amd. L. 1897, cli. 284), imposing a tax upon the transfer of any property, real or personal, not only by will or intestate law, but also “whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this act, such appointment when made shall be deemed a transfer taxable under the provisions of this act in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power, and had been bequeathed or devised by such donee by will, * * * ’’ is an exercise of legislative power not prohibited by the State or Federal Constitution. A transfer tax is, therefore, properly imposed upon the exercise, by a last will and testament, of a power of appointment derived from a deed executed before the passage of any statute imposing a tax upon the right of succession to the property of a decedent.</p> <p>2. Construction of Statute. The statute applies to all powers of appointment alike, without distinction on account of the method of creation or date of creation. No tax is laid upon the powers, or on the property or on the original disposition by deed, but simply upon the exercise of tiie power by will as an effective transfer for the purposes of the act; and since the legislature has full and complete control of the making, the form and the substance of wills, it can impose a charge or tax for doing anything by will. The fact that, there was no statute imposing a succession tax when the power was created is immaterial. That transfer is not taxed; it is the practical transfer, through the exercise of the power by will that is taxed, and nothing else.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. This being an appeal from a direction of a verdict by the court, the appellant is entitled to the most favorable inferences deducible from the evidence, and all contested facts are to be deemed established in 1ns favor. (Ladd v. Ins.

The facts, so far as material, are stated in the opinion. The highway commissioners of the town of Hyde Park have authority to alter the New York and Albany post road. (L. 1890, cli. 586, § 80; People ex rel. v. Jones, 63 N. Y. 306; Gress v. Hilliard, 85 App. Div. 510; People ex rel. v. Hildreth, 126 N. Y. 360; Engleman v. Longhorst, 120 N. Y. 332; Buckholz v. N. Y., L. E. & W. R. R. Co., 71 App.

In August, 1902, the relator, a practicing physician of the village of Blasdell, town of Hamburg, Erie county, presented to the town board of that town a claim for services performed by him in caring for certain persons afflicted with the disease of smallpox. The claim wag for services running from April 29th, 1902, to and including May 29th, 1902, and amounting to $318.95. The town board deducted from the claim as presented the sum of $110, and audited the same at $208.95.

The plaintiff’s testator was the administrator of Betsy Ann Gibbons, who was the widow of Ransom H. Gibbons, and, as a creditor of the latter’s estate, upon a promissory note given to his intestate by her husband in his life-time, for the sum of $2,800, payable one year after date and carrying interest at five per cent, and in his capacity as administrator, he brought this action, with the object of procuring the payment of the claim.

The nature of the action and the facts, so far as material, are stated in the opinion. The Franchise Tax Law of 1901 does not repeal the clause directing the manner of ascertaining the gross premium tax on foreign marine insurance companies. (Wood v. Bd. of Suprs., 136 N. Y. 403; Matter of Curser, 89 N. Y. 401; Gooley on Taxn. [2d ed.] 294; Black on Interp.

The nature of the action and the facts, so far as material, are stated in the opinion. The words “ to have and to hold the same to themselves, their heirs and assigns forever,” even though followed by the words “ upon the uses and trusts,” was a gift of the entire estate to the three persons named.