Volume 140 — New York Reports

for review by certiorari, and ordered a recovery in its favoi: ¡against the relator. This was a proceeding to review by certiorari the proceedings of the board of health of the city of Yonkers, by which certain dams upon the Hepperhan river -were determined to be nuisances and ordered to be removed! The Hepperhan river is a small stream of water flowing through the city of Yonkers, and across the stream there were, several dams to furnish power to drive machinery.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 28, 1893, which modified and affirmed as modified a judgment in favor of plaintiff: entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by the board of health of the city of Yonkers to recover penalties under the provisions of the sanitary code of said city (§ 82) and for an injunction.</p> <p>The complaint contained three counts. It alleged in substance that the defendant owned a dam upon the Hepperhan river in said city, and also owned a pond formed by said dam and lots adjacent thereto; that he had for a long time maintained and continues to maintain said pond in such a condition as to be dangerous to human health and as to render the air and water unwholesome, in violation of section 82 of the sanitary code: that defendant had refused to comply with a resolution passed by plaintiff requiring him to remove said dam, but had continued to further obstruct said river and threatened to continue doing so; that he had neglected and refused to comply with a resolution of plaintiff requiring said dam to be abated as a public nuisance, and to refrain from building a dam (the former having been partially ■destroyed under a warrant issued by plaintiff), and from recreating, continuing or retaining said pond, and had neglected and refused to remove the obstructions from the river at the place where the dam had been, and to abate and remove the nuisance theretofore existing thereat. Judgment was asked for the amount of three penalties and for an injunction perpetually restraining defendant from obstructing the free, natural flow of the Hepperhan river in said city, and from rebuilding said dam and recreating, continuing or retaining the pond supported by said dam, and from supporting, continuing or retaining said pond or dam or condition in said river, so as to be dangerous to human health and as to render the air and water unwholesome, and also that defendant be directed forthwith to clean out and wall up the channel of said river and provide a'stone dam, and fill in with solid earth the low places upon his land adjacent to said river.</p> <p>A judgment was rendered in favor of plaintiff upon all the counts. As to the first and third causes of action set up in the complaint, it was affirmed by the G-eneral Term and reversed as to the second. Ho appeal was taken by plaintiff.</p> <p>Further facts are stated in the opinion.</p> <p>The powers • of the board of health are given by the charter of the city of Yonkers. (Laws 1881, chap. 184, tit. 9, § 2.) The words “in addition to the powers herein expressly granted, to have and exercise all the powers now or at any time hereafter conferred upon boards of health in cities, by any general law,” contained in said section 2, did not give any additional powers, as there is only one general law relating to boards of health in cities, and that was enacted afterwards, in 1885 (Chap. 270), and that act expressly excepts the city of Yonkers (§ 1). The legislature in plain terms prescribes what shall be done by the board of health in order to impose a duty. It was incumbent on the plaintiff to show compliance with these statutory requirements. (Sanitary Code, §§ 79, 80, 81.) The plea of the Statute of Limitations is good.. (Code Civ. Pro. § 387.) As to the third cause of action, the board of health has no power to declare in advance, what will create a nuisance which will endanger the public health, only the power to declare what is such nuisance, or even the semblance of power to require any person to make improvements or expenditures to prevent the recurrence of such nuisance, or to prevent the erection of a structure which may create such nuisance. It was error to admit in evidence the ordinance made December 7,1892, as the foundation of a cause of action without proof that notice of hearing upon the subject of it had been given to Mr. Oopcutt. (People v. Wood, 62 Hun, 131; People ex rel. v. Board of Health, 58 id. 595.) Even if the complaint and ordinance had been sufficient for the purpose, and the board was clothed with ample powers in the premises, it is insisted that the part of the judgment which restrains the defendant from rebuilding his (jam, which had been torn down, ■and ordering him to clear out' all other obstructions from the stream, cannot be sustained. (Cooley’s Const. Lim. 343; In re Jacobs, 98 N. Y. 110-112; People v. Gillson, 109 id. 389; City of Rochester v. Simpson, 57 Hun, 36 ; Babcock v. City of Buffalo, 56 N. Y. 268 ; Lawton v. Steele, 119 id. 239.) The plain duty of the board was to clean the ponds by taking out the deposits, and not by destroying the defendant’s property and depriving him of a water power which supplied eighteen or twenty manufactories, which he rented to Ms tenants. (Laws of 1881, chap. 184, tit. 9, § 2 ; Comm. v. Patch, 97 Mass. 203; City of Rochester v. Simpson, 57 Hun, 36; Babcock v. City of Buffalo, 56 N. Y. 256.) The court erred in refusing to find that the city of Yonkers had permitted, by means of drains or sewers, or both, the dirt and infuse of its public streets to empty and be discharged into the Hepperhan river at points higher up the stream than the dam and pond at defendant’s first water power. (Babcock v. City of Buffalo, 56 N. Y. 268.) The court erred in refusing to find that the defilement of the stream by the Smith Carpet Works has contributed to produce the same nuisance. (Code Civ. Pro. §§ 993, 1023; Kennedy v. Porter, 109 N. Y. 521.) The court erred in refusing defendant’s requests as to the cost of cleaning out the pond and the erection and running of an engine to supply the power which would be lost by preventing the reconstruction of defendant’s dam, which had been destroyed by the board of health, and against doing which the court enjoined defendant, (City of Rochester v. Simpson, 57 Hun, 39.)</p> <p>The judgment as to the-first cause of action was properly affirmed. (Laws of 1881,. chap. 184, § 2 ; Gould v. City of Rochester, 105 N. Y. 46 ; Adams v. Popham, 76 id. 410.) The judgment as to the third cause of action was properly affirmed. (Laws of 1881, chap. 184, § 2; Laws of 1885, chap. 270, § 3; Gould v. City of Rochester, 105 N. Y. 46 ; Board of Health v. Heister, 37 id. 661.)</p>

This action was brought to recover $5,000, the amount, alleged to be due upon a certificate of membership issued to Frederick W. Trippe, plaintiff’s intestate, by defendant. The facts, so far as material, are stated in the opinion.

This action was brought for the construction of the will of José Sevilla, deceased. The portions of the will in question and the facts, so far as material, are stated in the opinion. The provisions of the will of Sevilla in favor of the Sevilla Home for Children are . valid by the law of Peru, the testator’s domicile.

This action was brought to recover damages for the alleged negligence of defendant, causing the breaking en route of a piece of statuary delivered to it for transportation from Albany to the city of ¡New York. The facts, as far as material, are stated in the opinion. The contract of carriage was not such as would exempt the defendant from liability for losses occurring through its own negligence.

This was an action brought by plaintiff in 1888, as one of the heirs at law of Jessie Ann Dyett, to recover possession of one undivided twenty-fourth part of the premises 194 Broadway, in the city of Hew York. Jessie Ann Hunt intermarried with Joshua Dyett- prior to September 19, 1821; she was then about twenty years of age.

<p>Appeal from, judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made July 2, 1892, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court and affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover damages for a breach of contract.</p> <p>The provisions of the contract and the facts, so far as material, are stated in the opinion.</p> <p>The court erred in deciding that the plaintiff was not entitled to recover as damages the difference between the contract price and the price obtained upon the re-sale, and also in holding that the plaintiff was entitled to recover only six cents damages, and in directing a' verdict therefor. (Duston v. McAndrew, 44 N. Y. 72, 78; Hayden v. Demlets, 53 id. 426, 431; Mason v. Decker, 72 id. 595, 599 ; Sawyer v. Dean, 114 id. 469, 481; Morss v. Gleason, 64 id. 204.) The one-tliird interest in the property of the partnership of Snyder, Van Brocklen & Hull which the defendant agreed to purchase was personal property. (Tarbell v. West, 86 N. Y. 280, 287; Morss v. Gleason, 64 id. 204, 207, 208; Statts v. Bristow, 73 id. 264, 267; Menagh v. Whitwell, 52 id. 146, 158, 160, 161; Lindley on Part. 102; Story on Part. § 201.) If the property the defendant agreed to purchase had been real estate (while in fact only a small part of it — the mill — could be denominated as such), under the circumstances in this case, the rule of damages claimed by the plaintiff should be applied. The same reasons for the application of the rule as to personal property exist. (2 Suth. on Dam. 198; Bowser v. Cessna, 62 Penn. St. 148; Lewis v. Lee, 15 Ind. 499; Miller v. Collyer, 36 Barb. 250.) If the measure of the damages is the difference between the contract price and the market value, as claimed by the defendant, the amount obtained on the re-sale is evidence of the market value, and the court should have submitted the question of the amount of damages to the jury, instead of directing a verdict for nominal damages. (Pollen v. Le Roy, 30 N. Y. 549; Bigelow v. Legg, 102 id. 653.)</p> <p>The plaintiff sold the property for less than its value. The price for which plaintiff sold does not fix its value or afford the measure of damages. ( Wilson v. Holden, 16 Abb. Pr. 133.) The measure of damages in this case is the difference between the price agreed to be paid by defendant and the actual value of the property at the time of the refusal to perform. There was no differ-en ce, and hence no damage, except nominal. ( Wilson v. Holden, 16 Abb. Pr. 133, 136, 137; Cong. Beth Elohim v. C. P. Church, 10 Abb. Pr. [N. S.] 484, 500; Timby v. Kinsey, 18 Hun, 255 ; Pumpelly v. Phelps, 40 N. Y. 59 ; Griswold v. Sabin, 51 N. H. 167; Brinkerhoff v. Phelps, 24 Barb. 100; Walton v. Meeks, 120 N. Y. 79 ; Northridge v. Moon, 118 id. 419.) The plaintiff resold the property. at private sale, and upon the trial did not claim that the price obtained at such private sale was any evidence of its value or ask to go to the jury on that question. A fair public sale in the absence of other evidence is competent evidence of value. (Pollen v. Le Roy, 30 N. Y. 549.)</p>

This was an action upon a policy of insurance issued by defendant on the life of William F. Conway, plaintiff’s intestate. The policy of insurance in this case was issued to the plaintiff’s intestate, and was payable to his legal representatives upon his death, or in twenty years to him if then living.

<p>1. Trial—Jury.</p> <p>The use of a peremptory challenge, after a challenge for cause has been overruled, precludes the party from availing himself from any exception taken on the trial of the challenge for cause.</p> <p>2. Same.</p> <p>Where an error is committed on the trial of a challenge for cause, it becomes merely technical when, after filling the panel, it appears that the use of the peremptory challenge did no harm to the defendant, and such error is not available to authorize a reversal of the conviction.</p> <p>8. Evidence—Homicide.</p> <p>The fact that the defendant acted without adequate provocation or with reckless disregard of human life in committing the offense charged, cannot be proved by showing his reckless conduct on other occasions.</p> <p>4. Same—Declarations.</p> <p>The declarations of a third person to defendant, where it does not appear that it was called out by anything said by the latter, or that he replied or in any way assented thereto, are not admissible.</p>

The nature of the action and the facts, so far as material, are .stated in the opinion. The form of action is appropriate. (Story’s Equity [11th ed.], § 826 ; Poppenhusen v. N. Y. G. P. Co., 4 Blatchf. 184; N. Y. G. S. Co. v. A. G. S. Co., 20 id. 386; Butler v. Ball, 28 Fed. Rep. 754; Woodworth v. Stone, 3 Story, 749, 750; C. P. P. Co. v. M. R. Co., 49 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The fund now held by Mr. Husson is to be regarded as consisting of both real and personal property. (Mills v. Mills, 28 Barb. 454 ; Laws of 1875, chap. 545.) Section 67 of the Statute of Uses and Trusts applies to the entire fund, whether it be regarded as real, personal or mixed.

This action was brought to compel the defendants to execute and deliver to the plaintiffs a renewal of a lease, which the defendants’ testator had made to Robinson and Woodruff, the predecessors in interest of the plaintiffs, of property in Brook-, lyn. The facts found by the trial court are not in dispute; but it is contended that a different legal conclusion should have been drawn.

This action was brought to have defendant adjudged as holding certain real estate in trust for the joint benefit of himself and Waldo Hutchins, plaintiff’s testatrix, and to require him to account for the rents, issues and profits of said premises, and pay over the amount adjudged to be due plaintiff. The facts, so far as material, are stated in the opinion. The plaintiff can only recover secundum allegata et probata.

Tyler, and discharged him as executor, and the other directed him to file a supplemental account. This proceeding was instituted by the petitioner in the Surrogate’s Court of the county of Otsego to procure a final settlement of his accounts as executor of the last will and testament of Mary D. Tyler, deceased.

<p>T. Criminal law—Green goods.</p> <p>The selling or offering to sell counterfeit money or tokens of value, or what purports to be such, or the aiding or abetting any scheme or device having for its purpose the sale or the putting in-circulation of counterfeit money or tokens, or what purports to be such, is the offense alone at which section 537 of the Penal Code is aimed, and it has no reference to any other frauds upon the public or individuals.</p> <p>2. Indictment—Green goods.</p> <p>An indictment, under section 537 of the Penal Code, which does-not contain an averment that the scheme was to sell or exchange,, or to offer to exchange, “counterfeit” money, or what purported to be such, is fatally defective.</p> <p>3. Criminal law—Inferences.</p> <p>A criminal charge may be and often is supported by inference-from facts which imply the existence of the principal facts constituting the offense.</p>

<p>A trust of personal property may be effectually framed in which the author of the trust is himself the trustee.</p> <p>S., plaintiffs’ testator, in his lifetime, executed an instrument in triplicate which stated that he was the owner of 400 shares of the stock of a corporation named, evidenced by four certificates, the numbers of which were given ; that he did thereby “ dedicate and set apart * * in whose possession soever the said several certificates of stock may come without actual transfer,” all the income and dividends thereafter to accrue thereon, in trust to himself or to any custodian in whose hands the said certificates might be deposited by him, or by his order, for the uses and purposes specified. These were that the net income and dividends, as received from time to time, should be apportioned into ten equal parts, three to be paid over to the use of M., three to the use of A., two to be paid to H. during life, and two to 31.31. during life. In case of the decease or marriage of 31. or the decease of A., it was provided that “ then the portion so allotted to such person shall, from and after the happening of such event, be paid over ” to the use of a religious society named, and “the portion allotted to the other shall, after her decease” or marriage, if it be 31., be paid over to the use of a charitable institution named. At the termination of the life interests of II. and 31. 31., “the portion allotted ” to each, it was provided, should also go to a charitable institution named. A power of revocation was ..reserved. One of the triplicates, with the certificates of the stock in a sealed envelope, S. deposited in his box in a deposit company. Upon the envelope was indorsed in the handwriting of S. the words, “ Declaration of trust with certificates ® * * belonging to trust,” following which was a description of the certificates and a statement that a “ duplicate declaration of trust had been filed with the beneficiaries ” and with another person named ; also a further memorandum directed to a person named, “ for and in behalf of the within-named beneficiaries,” as follows: “In case of my decease please see that the inclosed trust is faithfully carried out.” The provisions of the instrument were carried out until the death of S., about four years after its execution. In his will S. recited the deposit of “ the deed of trust,” and directed his executors to carry out its provisions. Held, that a good and valid declaration of trust was made, and upon its execution the settlor held the legal title to the stock in trust for those to whom he had given-the income; that four separate and several trusts were created, and each life tenant took independent of the others; that each trust terminated upon the death of the life beneficiary and then the entire interest and absolute ownership of the trust fund went to the corporation named as the ultimate beneficiary.</p>

<p>Appeal from judgment of the General Term of the Supreme Oourt in the first judicial department, entered upon an order made December 20,1892, which affirmed a judgment in favor of plaintiffs entered upon the report of a referee.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>This claim was barred by the Statute of Limitations as early as January, 1886. (Mills v. Mills, 115 N. Y. 80, 86 ; Parks v. Satterthwaite, 32 N. E. Rep. 82; Code Civ. Pro. § 410; In re Cole, 34 Hun, 320; Nosirand v. Ditmis, 127 N. Y. 355 ; Boughton v. Flint, 74 id. 476; Middleton v. Twombly, 125 id. 520; Thatcher v. H. C. Assn., 126 id. 507; Roberts v. Ely, 113 id. 128; Sheldon v. Sheldon, 133 id. 1.) The transactions of 1886 and 1888 did not revive this claim. (Smith v. Ryan, 66 id. 352; Mills v. Davis, 113 id. 243; Crum v. Higold, 32 Ill. App. 28; Blair v. Lynch, 105 N. Y. 636 ; Nash v. Hodgson, 6 DeG., M. & G. 474; Camp v. Smith, 45 N. Y. S. R. 331; affd., 136 N. Y. 187; 1 Wood on Lim. [2d ed.] 298; Banning on Lim. 70 ; Mills v. Fowke, 5 Bing. [N. C.] 455; Kimball v. Brown, 7 Wend. 322 ; Gilbert v. Comstock, 93 N. Y. 484; In re Gardner, 103 id. 533; Thompson v. Brown, 50 Mo. App. 314; Ayer v. Hawkins, 19 Vt. 26; Burr v. Boulton, 2 C. B. 476; In re Kendrick, 107 N. Y. 104; Albro v. Figuero, 60 id. 630.) Section 386 of the Code has no application. (2 Wood on Lim. [2d ed.] 716 ; Green v. Disbrow, 79 N. Y. 1; Parker v. Schwartz, 136 Mass. 30; Crum v. Higold, 32 Ill. App. 28.) Where a husband, with his wife’s consent, sells property belonging to her and appropriates the proceeds, there is (in the absence of express agreement) no resulting liability to her. (M. E. Church v. Jacques, 3 Johns. Ch. 77; Brooks v. Brooks, 4 Redf. 314; Jacobs v. Hesler, 113 Mass. 157; Hanson v. Manley, 72 Iowa, 48; Bromwell v. Bromwell, 139 Ill. 424; Tyson v. Tyson, 54 Md. 35; Jenkins v. Middletown, 68 id. 540.) The evidence shows that this claim was settled by agreement between Mr. and Mrs. Barlow in their lifetime. (Nay v. Curley, 113 N. Y. 575; Greenl. on Ev. § 38; Lake v. Tyson, 6 N. Y. 461; Sheldon v. Sheldon, 133 id. 1; Richmond v. Richmond, 3 Alb. L. J. 352.) The provisions in Mr. Barlow’s will in favor of liis wife are intended as a satisfaction of all claims. (Story’s Eq. Juris. §§ 1, 119, 121, 123; Edmunds v. Law, 3 K. & J. 318 ; 2 Redf. on Wills, 188, 192; Rusling v. Rusling, 42 N. J. Eq. 594.)</p> <p>The plaintiff’s claim is not barred by the Statute of Limitations. (Roberts v. Ely, 113 N. Y. 128 ; Mills v. Mills, 115 id. 80 ; Sheldon v. Sheldon, 133 id. 1; Boughton v. Flint, 74 id. 476; Payne v. Gardner, 29 id. 461; Code Civ. Pro. § 1337; Roux v. Brand, 90 N. Y. 309, 312; Hynes v. McDermott, 91 id. 451, 464; Roby v. A. C. Ins. Co., 120 id. 510-515; Holcomb v. Campbell, 118 id. 50, 51; In re Thompson, 121 id. 277, 279; Green v. Ames, 14 id. 225 ; Chamberlain v. Cuyler, 9 Wend. 126; Tucker v. Ives, 6 Cow. 193; Edmondstone v. Thomson, 15 Wend. 554; Sickels v. Mather, 20 id. 72; Coster v. Murray, 5 Johns. Ch. 522; Catling v. Skoulding, 6 T. R. 189 ; Green v. Disbrow, 79 N. Y. 1; Chambers v. Marks, 25 Penn. St. 296; Norton v. Larco, 30 Cal. 126.) The appellants have failed to establish their defense of payment. (Fairchild v. Fairchild, 64 N. Y. 471; Donovan v. Clark, 138 id. 631; Wright v. Nostrand, 94 id. 31; Boyd v. De La Montaigne, 73 id. 498; Green v. Carlill, L. R. [4 Ch. Div.] 822; Linker v. Linker, 32 N. J. Eq. 174; Denning v. Williams, 26 Conn. 226.)</p>

This action was brought to determine the title to a sum of money received by Stephen H. Olin as committee of Benjamin Page, a lunatic. The facts, so far as material, are stated in the opinion. As the $4,000 was collected by the committee of Benjamin Page during the latter’s lifetime, it is prima, facie to-be regarded as personal estate.

<p>While contracts between vendor and vendee in restraint of trade will be upheld, they are not to be treated with special indulgence. They are intended to secure to the purchaser of the good will of a trade or business a guaranty against competition by the vendor. When this object is accomplished, in the absence of any further precise and clear stipulation, it will not be presumed that more was intended.</p> <p>G., defendant’s testator, and plaintiff, who were practicing physicians and surgeons, in 1884 entered into a copartnership agreement for the practice of their profession for one year, at the expiration of which G. agreed to execute to plaintiff an agreement and guarantee that he would not thereafter practice medicine or surgery in the village of D., their place of business, or within five miles thereof. At the expiration of the year G. executed the agreement called for, by which he covenanted not to practice said professions within either of two towns in which said village is situated. The contract provided that “ to practice medicine and surgery, as above mentioned, shall be construed to mean to prescribe for, to compound medicine for, advise or visit any person sick or disabled.” G. thereafter became a member of a firm which engaged in the business of selling drugs, books, etc., in another village in one of said towns, two miles distant from D., and he continued in that business until 1889. In an action to recover a sum fixed in said contract as liquidated damages for its violation, it appeared that defendant purchased drugs at the store of the firm, and made no objection to the conducting of the business by G. The only acts proved claimed to be violative of the agreement were that G. on one occasion attended as counsel with other physicians upon a person in extremis, for which he made no charge, but received and accepted a small fee. In eight other cases he furnished persons calling at his store medicines kept in stock suitable for their respective ailments. No charge was made for medical advice, only the medicines being paid for. Held, that a violation of the contract was not established ; that it prohibited the practice of the profession by G., not the doing of isolated acts such as were proven; that the definition of what should constitute such practice did not enlarge the meaning of that term, but was designed simply as a specification of the acts which, if systematically, habitually or frequently done, would be a breach of the agreement.</p> <p>The profession of a pharmacist and that of a physician are essentially distinct, and an agreement not to engage in the one does not preclude the party from engaging in the other, so long as the one is not used as a cover for the operations of the other.</p>

This action was brought to procure an injunction restraining defendants from removing bricks from a brick yard belonging to plaintiff. The facts, so far as material, are stated in the opinion. The only question presented to the court for its decision is whether or not the plaintiff, on February 7, 1891, had a valid and subsisting lien upon the brick then upon the yard for the quarter’s rent coming due April 1, 1891, paramount to the title of the defendant Sullivan thereto.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Eew York, entered upon an order made January 3,1893, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to compel defendant to make and issue to plaintiff, as executor of Joseph W. Burnham, deceased, certificates for 100 shares of its capital stock.</p> <p>The complaint alleged that in 1883 defendant issued to one D. D. Conover two certificates for fifty shares each of its capital stock, which were thereafter transferred to plaintiffs testator. It is then alleged, on information and belief, that said certificates have been mislaid and lost, and plaintiff has not been able, notwithstanding diligent effort, to discover their whereabouts; that he has demanded the issue of new • certificates and offered to indemnify defendant, but that such demand and offer have been refused. The answer put in issue all the material allegations of the complaint and set up that plaintiff has a complete and adequate remedy at law.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The evidence fails to establish such diligent search and reasonable effort to find the alleged lost scrip certificates as to establish their loss and justify the judgment of the court below. (McNeil v. T. N. Bank, 46 N. Y. 325 ; Leitch v. Wells, 48 id. 585.) It was error for the court below to proceed to judgment without making Mrs. Burnham a party to the action. (Code Civ. Pro. § 452; Osterhoudt v. Bd. Suprs., 98 N. Y. 239-244.) The objection that the plaintiff had an adequate remedy at law was well taken. (Laws of 1873, chap. 151; Laws of 1892, chap. 688, §§ 50, 51; Thomas v. M. M. P. Union, 121 N. Y. 45-52 ; McLaury v. Hart, Id. 636-642; 1 Pom. Eq. Juris. 305, § 281; Andrews v. Monilaws, 8 Hun, 65 ; People v. Wasson, 64 N. Y. 167; Heiser v. Mayor, 104 id. 68.)</p> <p>The Superior Court of the city of Flew York was not deprived of jurisdiction to entertain the action by reason of power having been conferred by the legislature upon the Supreme Court to grant relief by summary procedure under chapter 151 of the Laws of 1873. (Popfinger v. Yutte, 102 N. Y. 38 ; Bispham Eq. Prin. par. 467 ; 3 Pom. Eq. Juris. 1376; Adams Eq. 167 ; Story’s Eq. Juris. [13th ed.] §§ 81-88; Bohart v. Chamberlain, 99 Mo. 631; Stokoe v. Robinson, 19 Ves. 385 ; Lawrence v. Lawrence, 42 N. H. 109 ; 1 Mad., Ch. 24; Fonblanque’s Equity, cliap. 1, §3 ; Shepard v. M. R. Co., 131 N. Y. 223 ; 3 Pom. Eq. Juris. [2d ed.] § 182; Force v. City of Elizabeth, 27 N. J. Eq. 408 ; Atkinson v. Leonard, 3 Bro. C. R. 218 ; King v. Baldwin, 17 Johns. 384; Sailly v. Elmore, 2 Paige, 487; Varet v. N. Y. Ins. Co., 7 id. 560; White v. Meday, 2 Edw. Ch. 486.) Mrs. Burnham was not a necessary party defendant preventing the complete determination of the controversy without her being a party to the action. (Code Civ. Pro. § 452; 2 Williams on Exrs. [5th ed.] 1636 ; Harrington v. Keteltas, 92 N. Y. 40; Turner v. Conant, 18 Abb. [N. C.] 160 ; Chapman v. Forbes, 127 N. Y. 532.) The sufficiency of proof of the loss of a written instrument is peculiarly within the province of the trial judge. (Gorgas v. Hertz, 150 Penn. St. 538.) The question of costs rests in the discretion of the court below, which this court will not review except in a case of an abuse thereof. (Lawrence v. Lawrence, 42 N. H. 113.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made February 2, 1892, which affirmed a judgment entered upon a decision of the Delaware County Court reversing a judgment of a Justice’s Court in favor of plaintiff.</p> <p>This action was brought in a Justice’s Court to recover from the defendant a penalty for his violation of the terms' of a resolution passed by the village trustees ; which prohibited all persons from hawking or peddling in the public streets without a license. Upon appeal from the judgment recovered by the village, the County Court ordered a reversal, and its decision has been affirmed by the General Term of the fourth department.</p> <p>The plaintiff, thereupon, obtained leave to appeal to this court, on the ground that a question of law was involved which ought to be reviewed here.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The defendant was a peddler within the meaning of the statute and ordinance of plaintiff. (Merriam v. Longdon, 10 Conn. 461; City of Kansas v. Collins, 34 Kans. 434; Slate v. Miller, 93 N. C. 511; Emmons v. City of Lewiston, 24 N. E. Rep. 58; Comm. v. Farnum, 114 Mass. 270; Village of Deposit v. Pitts, 18 Hun, 477.) The claim that the defendant delivered his goods in the houses of his customers and, therefore, did not peddle upon the streets within the prohibition of the ordinance is not tenable. ( Village of Deposit v. Pitts, 18 Hun, 477; Village of Port Jervis v. Close, 24 N. Y. S. R. 730.) The plaintiff was authorized to enact the ordinance requiring defendant to take out a license. (Laws of 1883, chap. 465 ; Village of Carthage v. Frederick, 33 N. Y. S. R. 384; Village of Ballston v. Markham, 34 id. 237 ; Village of Deposit v. Pitts, 18 Hun, 475 ; Bradley v. City of Rochester, 26 N. Y. S. R. 823.)</p> <p>Defendant does not come within the provisions of chapter 465 of the Laws of 1883, or the resolutions of the village. (Rex v. McKnight, 10 B. & C. 734; Comm. v. Eichenberg, 140 Penn. St. 160; Emmons v. City of Lewiston, 132 Ill. 380; City of Elgin v. Pickard, 24 Ill. App. 340; Ballou v. State, 87 Ala. 144; Town of Spencer v. Whiting, 68 Iowa, 678 ; Comm. v. Farnum, 114 Mass. 267; City of Davenport v. Rice, 75 Iowa, 74; Comm. v. Aber, 12 Cush. 495 ; City of Kansas v. Collins, 34 Kans. 434; Ex parte Taylor, 58 Miss. 478; Comm. v. Smith, 6 Bush, 303 ; Comm. v. Jones, 7 id. 502 ; Ex parte Seibenhaur, 14 Nev. 365.) The statute of the state, under which the plaintiff acted in passing its resolution, only grants the power to regulate and restrain hawking and peddling in the streets, and not in private residences, or elsewhere than in the streets. (Laws of 1883, chap. 465; Cameron v. Seaman, 69 N. Y. 296; V. C. Co. v. Murtau, 50 id. 314; Strong v. Stebbins, 5 Cow. 210-212 ; Wood v. E. R. R. Co., 72 N. Y. 196-198; Dewey v. Goodenough, 56 Barb. 54-57; Village of Ballston Spa v. Markhann, 58 Hun, 241.)</p>

This action was brought to recover §699 for labor performed and materials furnished by plaintiffs in the manufacture of 1,000 pruning shears, under a contract with defendant. By the terms of said contract defendant was to furnish the rough castings for the handles, etc., and plaintiffs the blades, and complete their manufacture so as to conform to a sample furnished.

This action was brought to recover damages for injuries to certain houses belonging to plaintiff in the city of New York, arising from the maintenance by defendant of a pumping station used in connection witli the supply and distribution of Croton water adjacent to plaintiff’s premises. The facts, so far as material, are stated in the opinion. The pumping station in question was erected and maintained under the direct authority and sanction of the legislature.

<p>Sunday—Pishing.</p> <p>Fishing on Sunday is absolutely prohibited by section 365 of the Penal Code everywhere and under all circumstances.</p>

This action was brought in June, 1890, to recover royalties-from September 1, 1884, for the use by defendant of an oiler to be attached to agricultural machines, a patented invention, under a parol contract which the complaint alleged was-entered into with plaintiff in February, 1872, by which defendant agreed to manufacture and use said invention and to attach it wherever it would be applicable to all the various machines-it manufactured and sold, and to pay plaintiff a…

This action was brought to recover damages alleged to have been caused by defendant’s negligence. The facts, so far as material, are stated in the opinion. Scienter is the gist of actions like the case at bar. The notice which will charge the owner with liability for the vicious conduct of an animal must be notice that it was inclined to do the particular mischief which was done.

court on trial at Special Term and affirmed an order granting an extra allowance. This action was brought to recover back $32,109.16 received by defendant as executor of Abner Mellen deceased, being ten per cent of the amount bid by George Henry Warren, plaintiff’s testator, and also expenses incurred on a purchase by him of certain real estate sold at auction by defendant, which purchase plaintiff refused to complete on the ground of failure of title.

This action was brought originally by plaintiff as general assignee for the benefit of creditors of the Wilkin Manufacturing Company, a corporation of Wisconsin, against the Canton Lumber Company, a domestic corporation, to recover an amount remaining unpaid on a bill for machinery furnished by said Wisconsin company to said lumber company.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 14, 1892, which affirmed a decree of the Surrogate’s Court of Kings county adjudging that Anna M. Tienken had no interest in the sprplus income of the estate of John H. Seebeck, deceased.</p> <p>Appeal, also, from an order of said General Term, made February 10, 1892, which reversed an order of said Surrogate’s Court denying a motion to dismiss the petitions of Anna M. Tienken and others, as executors.</p> <p>This proceeding was instituted by Anna M. Tienken, individually, and Anna M. Tienken and John S. Gage, as executors of Henry M. Tienken, deceased, to compel the sole surviving executrix and trustee of and under the last will and testament of John H. Seebeck to account and pay over the surplus income in the hands of said executrix and trustee of said John H. Seebeck, deceased, which the said Henry M. Tienken would have been entitled to if living.</p> <p>The substance of the provisions of the will of said John H. Seebeck, and the facts, so far as material, are stated in the opinion.</p> <p>The decree of the Surrogate’s Oourt should adjudicate upon the right of this appellant to the remainder in fee of the realty, under the Seebeck will. (Code Civ. Pro. §§ 2472, 2481, 2717, 2726, 2730; Riggs v. Cragg, 89 N. Y. 479 ; In re Verplanck, 91 id. 437; Purdy v. Hayt, 92 id. 446 ; Dubois v. Brown, 1 Dem. 317; In re Thompson, 5 id. 117; Garlock v. Vandevort, 128 N. Y. 374; In re Tienken, 131 id. 391.) By the 16th clause and by the 17th clause, as modified by the codicil, testator devised his houses and lots on Nassau and Bridge streets to his wife for life, or widowhood, and after her death or re-marriage, to the children of his sister, Anna Tienken. This language conferred a present vested remainder upon each child of Anna Tienken, the possession alone of which was postponed. (Nelson v. Russell, 135 N. Y. 137; 1 Jarman on Wills [5th Am. ed.], 287; 2 id. 458, 702; Clark v. Lynch, 46 Barb. 81; Tucker v. Bishop, 16 N. Y. 402; Campbell v. Rawdon, 18 id. 415; Ferrer v. Pyne, 81 id. 285; Goebel v. Wolf, 113 id. 405; In re Tienken, 131 id. 391; Moore v. Lyons, 25 Wend. 119; Traver v. Schnell, 20 N. Y. 92; Hopkins v. Hopkins, 1 Hun, 355; Livingston v. Green, 52 N. Y. 124; Kelly v. Kelly, 67 id. 50; In re Meyer, 57 How. Pr. 207; Embury v. Sheldon, 68 N. Y. 233; Converse v. Kellogg, 7 Barb. 590; Stevenson v. Lesley, 70 N. Y. 515; In re Wells, 113 id. 403; Quackenbos v. Kingsland, 103 id. 128; In re N. Y., & W. Co., 105 id. 89.) The portion of the income to which Henry M. Tienken would have been entitled had he survived, follows, and is an adjunct of the estate which he took, and his devisee is entitled to it, for “ when, in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation or of the ownership during the continuance of which the rents and profits shall not be disposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.” (1 R. S. § 40; Goebel v. Wolf, 113 N. Y. 405, 415; In re Tienken, 13 id. 391; Byrnes v. Stilwell, 103 id. 458; 2 Jarman on Wills [5th Am. ed.], 469; Bates v. Hillman, 43 Barb. 647; Vanderpoel v. Loew, 112 N. Y. 177 ; Smith v. Edwards, 88 id. 103 ; Haxton v. Corse, 2 Barb. Ch. 518 ; Kilpatrick v. Judson, 15 N. Y. 326 ; Gilman v. Reddington, 24 id. 9; Manice v. Manice, 43 id. 373; Robinson v. Robinson, 5 Lans. 165 ; Embury v. Sheldon, 68 N. Y. 238; Delafield v. Shipman, 103 id. 463; Schermerhorn v. Cotting, 131 id. 59 ; Warner v. Durant, 76 id. 137.)</p> <p>There was no bequest or devise of the rents and profits or income of the property in question. (1 R. S. 732, 734, §§ 78, 95.) The intention of the testator clearly was to give an annuity of $600 to his sister, to be paid to her quarterly, and to give to each of his sister’s children an annuity, the amount of which should be equal-to one-fourth of the balance of the income of the property during their mother’s life, after paying taxes, assessments, insurance and repairs. Such annuities, in the absence of any provision in the will to the contrary, were limited to the respective lives of the beneficiaries thereof, (Blewitt v. Roberts, 10 Sim. 491; Yates v. Madden, 13 M. & G. 532; Nichols v. Hawkes, 10 Hare, 342; Lett v. Randall, 2 DeG., F. & J. 368; Crooke v. County of Kings, 97 N. Y. 421.) The children of Anna Tienken, in the substitute for the nineteenth item contained in the codicil, are referred to as a class and not severally or individually. (Delaney v. McCormack, 88 N. Y. 174; Teed v. Morton, 60 id. 502; Bowditch v. Ayrault, 138 id. 222; In re Corlass, L. R. [1 Ch. Div.] 460.) The twentieth item of the will does not affect the question as to the title to the income under the substitute for the nineteenth item contained in the codicil. (Harvey v. Stracey, 1 Dr. Ch. 73 ; In re Susanni, 26 Wkly. Rep. 93.) Hone of the items of the will or codicil, except the substitute for the nineteenth item contained in the codicil, relate to or affect the question of distribution of income, which was the only question before the surrogate in this case. The surrogate had, therefore, no jurisdiction to construe any other provisions of the will. (In re Verplanck, 91 N. Y. 439, 450; Garlock v. Vandervort, 128 id. 374.) The income due Henry M. Tienken at the time of his death was properly charged with its proportionate share of the taxes on the realty for the year 1889. (In re Babcock, 115 N. Y. 450.)</p> <p>Anna M. Tienken is not entitled to any interest in the estate and it was the intention of the testator that the corpus of the estate should not vest until the death of his wife. (Delafield v. Shipman, 103 N. Y. 463; Shipman v. Rollins, 98 id. 311, 324; Warner v. Durant, 76 id. 133, 136 ; Smith v. Edwards, 88 id. 92, 103, 104; Kelso v. Lorillard, 85 id. 177; Vincent v. Newhouse, 83 id. 505 ; Magaw v. Field, 48 id. 668 ; Shannon v. Pickell, 55 Hun, 127; Delaney v. McCormack, 88 N. Y. 174, 183; Teed v. Morton, 60 id. 502, 506 ; Palmer v. Horn, 84 id. 516, 520; Ferrer v. Pyne, 81 id. 281, 285 ; Purdy v. Hayt, 92 id. 446, 452.) The contention that the Surrogate’s Court had the power to construe the will in all its-provisions, irrespective of whether the question is material or not, is not well made. (Kelsey v. Van Camp, 3 Dem. 530; In re Verplanck, 91 N. Y. 439.) The Surrogate’s Court has no jurisdiction either direct or incidental to determine the construction and effect of devises, or other questions affecting real property. (Bevan v. Cooper, 72 N. Y. 317.) The income due Henry M. Tienken at the time of his death, October 31, 1889, was chargeable with its proportionate share of the tax on the realty for that year, and the surrogate was right in passing the account of the executors which so charged. (In re Babcock, 115 N. Y. 450.)</p>

This action was brought originally in September, 1890, by Ann JE. Crouse, plaintiff’s intestate, to reform a trust deed executed by her, and to establish her right to alter or revoke the disposition of her property made therein, and for a delivery of the property therein described, or of any property taken in place thereof, and for an accounting and paying over of any income not previously paid over.

This action was brought by plaintiffs as executors and trustees under the will pf William Beard for the judicial settlement of their accounts. The facts, so far as material, are stated in the opinion. The trustees are entitled to commissions upon their necessary disbursements made in conducting the storage and wharfage business at Erie basin. (Code Civ.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 22, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover damages for injuries to plaintiff’s house in the city of Bochester, alleged to have been caused by defendant’s unlawful acts.</p> <p>The principal facts upon which the question presented arises are as follows:</p> <p>The defendant, is a railroad corporation organized under the General Bailroad Law of this state. In 1887, it owned a lot in the city of Bochester, extending from the west side of St. Paul street to the Genesee river, adjacent to a lot owned by the plaintiff on the south, purchased by her in 1885, on which was a dwelling occupied by her, fronting on St. Paul street, the north side of which was about six feet south of the north line of her lot. The defendant projected an extension of its road from a point east of St. Paul street to the Genesee river and thence across the river by a bridge. It obtained the consent of the municipal authorities to cross St. Paul street by a tunnel or cutting, and proceeded to extend its road across the street to the river. Its line crossed St. Paul street from a point on the east side of the street, opposite the lot of the defendant, striking the center of the defendant’s lot on the west side, and thence ran longitudinally through the lot to the bank of the river.</p> <p>It became necessary, in order to comply with the conditions imposed by the city authorities, that the defendant’s roadbed at the crossing should be depressed fifteen feet or more below the surface of the street. The excavation required for this purpose involved also the necessity of continuing the cutting through the lot of the defendant so as to procure a uniform grade. The soil extended about ten feet below the surface, and underlying that was rock, which it became necessary to remove to the depth of about four feet. It was loosened by blasting with gunpowder. It was claimed by the plaintiff, and evidence was given tending to show that in consequence of the blasting the plaintiff’s house was seriously injured; that the foundations were cracked, the beams and joists pulled apart, the plaster loosened, and that generally the house was wrenched and rendered insecure. It is not claimed that any rock or materials were thrown by the blasts upon the plaintiff’s lot. In what particular way the injury was produced was not shown. It may be inferred that it was caused by the jarring of the ground or the concussion of the atmosphere created by the explosions, or by both causes combined. It was, however, affirmatively proven, without contradiction, that there was no disturbance of the earth on the sides of the excavation, and that gas and water pipes in the street, exposed by the excavation, were not displaced or injured.</p> <p>It was substantially conceded that the defendant exercised due care in conducting the blasting, and that it was necessary in order to remove the rock. There was evidence tending to show that the persons engaged in the work were informed from time to time during its progress that injury was being done to the plaintiff’s house. The trial judge instructed the jury that the defendant in using powerful explosives in blasting the rock used them at its peril, and that if the plaintiff’s house was injured thereby the defendant was liable for the damages occasioned, and “ that it made no difference whether the work was done carefully or negligently.” Exception was taken by the defendant to this instruction. The jury found that the damage to the house from the blasting was $1,750, and this sum was included in the verdict.</p> <p>The court overruled the contention of the defendant that in constructing its road it was acting under legislative authority,</p> <p>, and was on that ground, in the absence of negligence, exempted from liability, even although as between individuals an action might be maintained.</p> <p>Other facts are stated in the opinion.</p> <p>Defendant is not liable, and it was error to submit to the jury the question of damages sustained on account of blasting. (Lasala v. Holbrook, 4 Paige, 170, 172 ; Radcliff v. Mayor, etc., 4 N. Y. 196 ; 2 Washb. on Real Prop. [4th ed.] 360, 362; Boone on Real Prop. § 144 ; Losee v. Buchanan, 51 N. Y. 476; Marvin v. B. I. M. Co., 55 id. 538; Charliss v. Rankin, 22 Miss. 566; O’Connor v. City of Pittsburg, 18 Penn. St. 187; City of Quincy v. Jones, 76 Ill. 231; Busby v. Holthaus, 46 Mo. 161; T. Co. v. City of Chicago, 99 U. S. 640; Dixon v. Wilkinson, 2 McCarther [D. C.], 425; Tiedeman on Real Prop. § 618 Thurston v. Hancock, 12 Mass. 220; Gilmore v. Driscoll, 122 id. 201; McGuire v. Grant, 25 N. J. L. 356; Hatch v. V. C. R. R. Co., 25 Vt. 64.) This case was sent to the jury upon the same theory as to liability as though the defendant were a private person. This was error. (N. Y. C. & H. R. R. R. Co. v. Kip, 46 N. Y. 551; Radcliff v. Mayor, etc., 4 id. 195 ; Bellinger v. N. Y. C. R. R. Co., 23 id. 42; Moyer v. N. Y. C. & H. R. R. R. Co., 88 id. 351; Uline v. N. Y. C. & H. R. R. R. Co., 101 id. 98; T. Co. v. City of Chicago, 99 U. S. 635, 641; Conklin v. N. Y., O. & W. R. Co., 102 N. Y. 107; Laws of 1850, chap. 140, § 18; Benner v. A. D. Co. 134 N. Y. 156; Pierce on Railroads, 143.) There is no evidence in the case from which the jury could compute the damages for the invasion of plaintiff’s land by the embankment.' (3 Sedg. on Dam. [8th ed.] § 947.)</p> <p>The blasting was a nuisance, and defendant is liable to the plaintiff for the damage which she suffered from it. (Cooley on Torts, 607, 608; Carhart v. A. G. Co., 22 Barb. 297; Hay v. C. Co., 2 N. Y. 159; McAndrews v. Collard, 13 Vroom, 189 ; Tremain v. Cohoes Co., 2 N. Y. 163; Bahan v. P. J. G. L. Co., 122 id. 18; Losee v. Buchanan, 51 id. 476; McKeon v. Lee, 51 id. 300; Eaton v. B., C. & M. R. R. Co., 51 N. H. 504; Sedg. on Dam. [2d ed.] 113 ; Dwarris on Stat. 69.5 ; Cooley on Const. Lim. 530; People v. King, 110 N. Y. 418.) There is evidence to support the verdict for $250 for damages caused by the deposit of earth on plaintiff’s lot. (Briggs v. Hilton, 99 N. Y. 517; Head v. Hargrave, 105 U. S. 45 ; Post v. W. S. R. R. Co., 123 N. Y. 580, 591; Feeney v. L. I. R. R. Co., 116 id. 375, 381; Mairs v. M. R. E. Assn., 89 id. 498; Noonan v. City of Albany, 79 id. 470; Seifert v. City of Brooklyn, 101 id. 136.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to permit the widow of the testator to testify to conversations which took place between the deceased husband and their deceased daughter, in which she took part, regarding the ownership of the property which is the subject of this action. (Code of Civ.

This was an action to recover damages for an alleged breach ■of contract. The facts, so far as material, are stated in the opinion. The defendant’s failure to make the payments stipulated^ he made upon the delivery in Lincoln of the materials needed for the construction of the tracks, constituted a breach of the contract on his part, which conferred upon the plaintiff the right either to rescind or to sue generally for damages for a breach of the contract.

The facts, so far as material, are stated in the opinion. The evidence, except a small fraction thereof, having been neither heard nor read nor considered by 'the justice in making his decision who sat as sole judge to “ hear and determine ” both the issues of law and of fact, the proceedings did not amount to a trial, the alleged “ decision ” of the case is invalid, and the judgment entered thereon should be held altogether null and void, and the case sent to another judge…

The facts, so far as material, are stated in the opinion. ' Chapter 393, Laws of 1890, is simply permissive and is not mandatory, leaving to the discretion of the common council whether it would or would not audit and pay the claim of the relator. (People ex rel. v. Bd.

This action was brought to recover damages for the death of Frederick Bennett, plaintiff’s intestate, which was alleged to have been caused by defendant’s negligence. The facts, so far as material, are stated in the opinion. There was not sufficient evidence that the sparks from defendant’s locomotive caused the explosion.

Lees, as receiver, to retain $450 out of moneys in his hands as such receiver. The defendants Bayne and one Campbell, constituting a .partnership, executed on the 4th of March, 1890, an assignment for the benefit of their creditors to the defendant William H. Tailer. The plaintiff was a creditor of the partnership, and, after obtaining a judgment for its claim against the firm, commenced this action to set aside the assignment as fraudulent and void as to it.

: , The defendant Was accused by the grand jury of Monroe county of the crime of forgery in the second degree. The indictment contained two counts, the first of which set forth the forging, on April 12, 1892, at the city of Ro Chester, of the following written instrument, viz.: “Rochester, N. Y., April 12, 1892. “The Central Bank pay to bearer two hundred dollars. “JOHN G. THEIN, Pres. JAS.

<p>. Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made September 11, 1893, which affirmed an order of Special Term overruling a demurrer interposed to the amended complaint and affirmed an interlocutory judgment in favor of plaintiffs.</p> <p>This action was brought for the construction of the will of William Smith, deceased.</p> <p>The provisions of the will in question and the facts, so far as material, are stated in the opinion.</p> <p>The interpretation insisted upon by the respondents, and which has received the sanction of the courts below, that the testator intended that the real property mentioned in his will should, in any event, immediately upon the death of his son, Egbert T. Smith, to whom he had given an estate for life therein, go to the children of Egbert T. Smith, as tenants in common in fee, is clearly erroneous. (2 R. S. chap. 1, §§ 98, 99; 1 Jarman on Wills [5th Am. ed.], 395; In re Adams, L. R. [24 Ch. Div.] 199; 27 id. 394; Massorie Bank v. Raynor, L. R. [7 App. Cas.] 321; In re Ruggles, L. R. [39 Ch. Div.] 253 ; Campbell v. Beaumont, 91 N. Y. 464; Lewin on Trusts, 693 ; Perry on Trusts, §§ 249, 252.) The second proposition which the respondents have sought to establish is that even if the power is not to be deemed an imperative one, and consequently no express gift of the remainder is to be made to the children of Egbert T. Smith, yet, taking the whole will together, there is an implied devise of it to them. This proposition is equally erroneous. (In re Powers, 113 N. Y. 569 ; Addison v. Bush, 14 Beav. 459 ; Ex parte Rogers, 2 Madd. 449 ; Neighbour v. Thurlow, 28 Beav. 33; Andree v. Ward, 1 Russ. 260; Greene v. Ward, Id. 262; Bunelagh v. Bunelagh, 14 Beav. 200; Cooper v. Pitcher, 4 Wend. 485 ; 2 Redf. on Wills, 202.)</p> <p>Plaintiffs were entitled to the relief given them by the court under their general prayer for judgment. (Story’s Eq. Pl. § 42; Hurd v. Mill, 13 Ves. 119 ; Bailey v. Bradden, 8 Wend. 339-344; Pinnock v. Ella, Id. 139-142.) A devise of real estate for life to a son with the right and privilege of disposal of the same by will to his children is a special power in trust. (Dominick v. Sayre, 3 Sandf. 555, 559; Delaney v. McCormack, 88 N. Y. 174, 181; Crooke v. County of Kings, 97 id. 421; City of Portsmouth v. Shackford, 46 N. H. 423 ; Austin v. Oakes, 117 N. Y. 577; Read v. Williams, 125 id. 560; Hoey v. Kenny, 25 Barb. 396.) The question of intent is the controlling one in the construction of wills and overrides all others. (1 R. S. 748, § 2; Phillips v. Davies, 92 N. Y. 199; Hutton v. Benkard, Id. 295; Wager v. Wager, 96 id. 164; Ludlow v. Van Ness, 8 Bosw. 190; Hone v. Kent, 11 Barb. 315; Pond v. Bergh, 10 Paige, 152; Meredith v. Henege, 1 Sim. 550; Williams v. Williams, 1 Sim. [N. S.] 358; Wall v. Longlands, 14 East, 370.) A gift over, in case the donee of the power dies without children, is decisive of the intent of the testator that if the donee of the power dies leaving children they are to have the property. (2 Sugden on Powers, 167; 3 Jarman on Wills [5th Am. ed.], 529, § 3; 2 id. 551; Butler v. Gray, L. R. [5 Ch. App.] 30.) The special power in trust created by the. testator in his will was imperative and imposed a duty upon the donee, which did not rest in his discretion, and which duty, in the case of its nonperformance by him, a court of equity will enforce. (Dominick v. Sayre, 3 Sandf. 555.) There was a gift and devise to plaintiffs by implication. (Bates v. Hillman, 43 Barb. 645 ; Thomas v. Snyder, 43 Hun, 14; Lyman v. Lyman, 22 id. 263; Rathbone v. Dyckman, 3 Paige, 9; Baker v. Lorillard, 4 N. Y. 257; Vernon v. Vernon, 53 id. 351; Provoost v. Cuyler, 62 id. 545; Byrnes v. Baer, 86 id. 210-218; Schult v. Moll, 132 id. 122-127; 1 Jarman on Wills, 551; Butler v. Gray, L. R. [5 Ch. App.] 26; Areson v. Areson, 3 Den. 450 ; Ramsay v. De Runer, 65 Hun, 212; 1 Jarman on Wills, 133; Masterson v. Townshend, 123 N. Y. 462 ; Goodnight v. Hoskins, 9 East, 306; Jackson v. Billinger, 18 Johns. 368; In re Vowers, 113 N. Y. 569; Whitney v. Whitney, 63 Hun, 59; In re Brown, 98 N. Y. 295 ; Schouler on Wills, § 561; Sturges v. Cargill, 1 Sandf. Ch. 318.) Courts avoid such construction of wills as would lead to intestacy. (2 Redf. on Wills, 442; Lyman v. Lyman, 22 Hun, 263; Thomas v. Snyder, 43 id. 14; Vernon v. Vernon, 53 N. Y. 351-361; Provoost v. Cuyler, 62 id. 545 ; Byrnes v. Baer, 86 id. 210-218; Schult v. Moll, 132 id. 122.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There is no fraud proven on the part of Eckert and the court will not presume fraud. (Howland v. Blake, 97 U. S. 626; 1 Story’s Eq. Juris. §§ 152, 156, 161; Nevens v. Dunlap, 33 N. Y. 680 ; Wilson v. Deane, 74 id. 531; Huchbed v. Schuealy, 27 N. Y. S. R. 14; Sidway v. Sidway, 26 id. 898; Meaghan v. H. Ins.

<p>1. Evidence—Homicide. " On the trial of an indictment for murder in the first degree, sketches made by an artist, showing the locality of the blood stains in and about the place of the murder, shown to be accurate by the testimony of the persons who made them, are admissible in evidence.</p> <p>2. Witness—Examination. The language may be given on cross-examination, from which the witness drew the conclusions to which he testified on the direct examination.</p> <p>3. Trial—Charge. The court may refuse to charge a request, where the first proposition is untrue and the other will eliminate the oath and responsibility of the jury. So held where, on the trial of an indictment for murder, the evidence connecting defendant with the crime was wholly circumstantial and the court refused to charge on request that direct evidence is always the most satisfactory, and that the jutors should be convinced as jurors when they would be convinced as men, and should doubt as jurors when they would as men.</p>

This was an action for the foreclosure of a mechanic’s lien. The facts, so far as material, are stated in the opinion. The plaintiff, as assignee or purchaser of the claim of Oliver & Ogden against Horace Hill, was not authorized by chapter 342, Laws of 1885, to file a lien against this property.

<p>Where a lessor of premises knows or intends that they will or may be used for unlawful purposes the lease is void, and the obligation of the lessee to pay rent will not be enforced by the court.</p> <p>Plaintiff purchased certain premises in New York city, subject to a lease to M., defendant’s intestate. The premises had been, prior to, and were at the time of the execution of the lease, used for purposes of prostitution, of which fact the lessor had knowledge. Plaintiff had promised to execute a new lease to the occupants, hut refused to give them a lease, and executed one to M. By the terms of the lease the house was to be “used as a dwelling house only,” and it was provided that the lessee would “obey all lawful orders” of the departments of the city government. The occupants remained in possession and continued to use the premises for the same immoral purposes, and the lessor, plaintiff’s grantor, collected the rent of them. Plaintiff bought in ignorance of the character of the occupation. Meld, that the circumstances were such as to warrant a finding that plaintiff’s grantor was party to a plan for continuing the unlawful use of the premises through the new lease, but in such wise as not to imperil its validity, and that the lease to M. was but a cover; that plaintiff had the opportunity to ascertain as to the use of the premises, and if he did not do so, or have resort to the rights given him by law, he was not entitled to an enforcement of the lease.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made ¡November 22, 1892, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by plaintiff against defendants, as executors of Peter ¡K. Best, deceased, to recover a portion of the money received by them upon a sale of real estate of said testator, being the share of the testator’s son Alfred, plaintiff claiming the same as assignee of a judgment against him.</p> <p>Peter IL Best died February 17, 1878, leaving a will, by which he devised his homestead farm in Stillwater, Saratoga county, to his widow during life, and after her death he empowered his executors to sell the same at public or private sale at such time, upon such terms and in such manner as to them should seem meet and to the best interest of his estate, and to divide the proceeds therefrom equally among his legal heirs, share and share alike. He directed and empowered his executors to rent another farm "upon which his son Jacob then lived, from year to year, until his youngest child became twenty-one years of age and then gave them the same power to sell and divide the proceeds as in the case of the homestead. He appointed his widow and the defendants Jeremiah I. and Tristram G. Best, executors. The youngest child became of age March 21st, 1887, and the widow died August 25th of the same year. The plaintiff is the owner of two judgments recovered against Alfred E. Best, one of the testator’s sons, in 1877 and 1878, upon one of which execution was issued and the interest of the judgment debtor in these two farms sold September 29th, 1887, and the judgment creditor became the purchaser, and the usual sheriff’s certificate of sale was executed to him and filed and recorded in Sara-toga county clerk’s office October 7th, 1887. The sheriff’s deed upon the sale was delivered December 31st, 1888, and recorded January 16th, 1889. The defendants, as executors, executed the power of sale given them in the will on April 2nd, 1888, and sold both farms and received the proceeds, amounting to $22,700, of which the share of Alfred E. Best was $2,245. On March 6th, 1884, Alfred executed to Edward T. Williamson a conveyance of all his interest in the property which came to him under the will of his father, which deed was recorded April 7th, 1884. Alfred was indebted to his father in his lifetime upon two notes given in 1873, amounting to $2,200 and interest, which passed to the widow under the will, and were held by her at the time plaintiff’s judgments were recovered. On October 12tb, 1887, Alfred executed to the executor of his mother’s will a conveyance and assignment óf all his right, title and interest in the estate of his father. The defendant Tristram O. Best knew of the existence of the plaintiff’s judgments on April 30th, 1879, but he had no personal notice of the sheriff’s sale and deed ; and the defendant Jeremiah I. Best never had any personal knowledge or inf ormation in regard to the judgments until after the sale by the executors and the distribution óf the proceeds. In April, 1888, the executors rendered a final account before the surrogate of Saratoga county, and such proceedings were had that a decree was entered by the surrogate May 29th, 1888, adjudging that Alfred had no interest in the property, and that Williamson and the executor of Jane E. Best were entitled to his share as grantees and assignees, and adjudging the amount which should be paid to each, which was immediately thereafter paid over to them by the executors as directed by the decree. February 25th, 1889, the plaintiff demanded of the defendant Tristram C. Best the share of Alfred in the proceeds of the sale of the real estate, which he neglected to pay, and on March lst, 'l889, plaintiff brought this action against both executors individually, in which he demanded judgment for the sum of $2,245, the amount of Alfred’s share received and distributed by them. The cause was tried before the court without a jury, and upon findings embodying the facts here stated the complaint was dismissed upon the merits. The plaintiff has appealed' from á judgment of the General Term affirming the judgment entered upon the decision of the trial court.</p> <p>No title vested in the executors under the will of Peter K. Best. It vested in the devisees subject to the power of sale. (1 R. S. 728, § 49 ; Edm. ed. 677; Cook v. Platt, 98 N. Y. 35; Weeks v. Cornell, 104 id. 325; Wilson v. White, 109 id. 59; Henderson v. Henderson, 113 id. 1.) The judgments were a lien on the share of Alfred E. Best. (Code Civ. Pro. §§ 1251, 3343, subd. 6; Despard v. Churchill, 53 N. Y. 199; 50 id. 655 ; Wilder v. Ranney, 95 id. 7.) After the sale by the executors the lien, and title thereunder attached to the proceeds1 of sale. (Ackerman v. Gorton, 67 N. Y. 63 ; Dominick v. Mitchell, 4 Sandf. 399; Code Civ. Pro. § 758; F. N. Bank v. Lent, 10 N. Y. Supp. 261; Piper v. Poppenheim, 43 N. Y. 68.) The decree of the surrogate, so far as it attempts to deprive the plaintiff of his right of property without notice, is void under the Constitution. (Code Civ. Pro. § 2742; Hood v. Hood, 19 Hun, 300; Van Rensselaer v. Van Rensselaer, Id.; 113 N. Y. 207.) If the share of Alfred be considered as personal then supplementary proceedings would bind it. (Bingham v. Disbrow, 37 Barb. 24; McCorkle v. Herman, 47 N. Y. 297.) There was no equitable conversion because the power to sell was not imperative but discretionary. (In re Fox, 52 N. Y. 530 ; Henderson v. Henderson, 113 id. 1; Garley v. Campbell, 66 id. 169; In re Bingham, 127 id. 297; Drake v. Paige, Id. 562; Gerard on Tit. 363; Morgan v. Kohnstam, 60 How. Pr. 161; Prentice v. Janson, 78 N. Y. 486; 66 id. 169; 95 id. 7.)</p> <p>The power of sale given to the executors by the .will of Peter K. Best, being valid, as assumed by the complaint which- proceeds in affirmance thereof, and no discretion given to the executors except as to the time and manner of sale, operated as an immediate conversion of the real estate, and the distributees took their interests as money and not as land. (Stagg v. Jackson, 1 N. Y. 206; Lent v. Howard, 89 id. 169-177; Dodge v. Pond, 23 id. 69; Harris v. Strodl, 132 id. 392 ; Tillman v. Davis, 95 id. 17; Henderson v. Henderson, 113 id. 1; 1 Washb. on Real Prop. 9, § 34 ; Meakings v. Cromwell, 5 N. Y. 136 ; Craig v. Leslie, 3 Wheat. 563; Horton v. McCoy, 47 N. Y. 21; Fisher v. Banta, 66 id. 468; Germond v. Jones, 2 Hill, 569; Kearney v. M. Society, 10 Abb. [N. C.] 274, 278; Chamberlain v. Chamberlain, 43 N. Y. 424, 431; Robert v. Corning, 89 id. 239 ; Kane v. Gott, 24 Wend. 641; Elliot v. Fisher, 12 Sim. 505; Griffith v. Sunell, 7 Hare, 299; Anstice v. Brown, 6 Paige, 448; Seymour v. Freer, 8 Wall. 202; Hatch v. Bassett, 52 N. Y. 359 ; Hood v. Hood, 85 id. 561; Wells v. Wells, 88 id. 323 ; Marsh v. Wheeler, 2 Edw. Ch. 156.) The accounting by the executors and the surrogate’s decree are conclusive against the plaintiff. (Stagg v. Jackson, 1 N. Y. 206; Duncan v. Guest, 5 Redf. 540; Moyer v. Hinman, 13 N. Y. 180, 184; Simon v. Schurck, 29 id. 598; Lounsbury v. Purdy, 11 Barb. 490.) The order made by Judge Crane, June 28,1879, appointing Aaron B. Olmstead receiver of the property of Alfred E. Best, was void. (Ashley v. Turner, 22 Hun, 226; Dorr v. Noxon, 5 How. 29; Barker v. Johnson, 4 Abb. Pr. 435; Andrews v. G. W. Co., 11 Abb. Pr. [N. S.] 79; Morgan v. Von Kohnstamm, 60 How. Pr. 161; Grant v. Warner, 51 Hun, 53; Whitney v. Welch, 2 Abb. [N. C.] 442 ; Field v. Ripley, 20 How. Pr. 26.) Even if the orders made in these void supplementary proceedings were valid they could only affect property in their possession at the time of the order. (McGivney v. Childs, 41 Hun, 607; Caton v. Southwell, 13 Barb. 335 ; Potter v. Low, 16 How. Pr. 549.)</p>

The facts, so far as material, are stated in the opinion. The policies did not constitute property within the meaning of the law.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 16, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover for services rendered by Julius F. Chesebrough, plaintiff’s intestate, under a contract with defendant.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The charge of the court is the law of the case; the verdict is contrary to the charge and cannot be sustained. (Rogers v. Murray, 3 Bosw. 357; Buckley v. G. P. & R. M. Co., 113 N. Y. 540; Nangler v. Smith, 90 id. 38 ; Bunter v. O. M. Ins. Co., 4 Bosw. 251; Elsey v. Metcalf, 1 Den. 323; Clark v. Richards, 3 E. D. Smith, 89 ; Hayne on New Trials, 578, § 89 ; Hilliard on New Trials [2d ed.], 487, § 73 ; Slatterie v. Pooley, 6 M. & W. 608; Helbing v. S. Ins. Co., 54 Cal. 159; Fleming v. M. Ins. Co., 4 Whart. 59.) The plaintiff cannot recover the promised consideration for services, a material portion of which consisted of personal and private interviews with members of the legislature with the object of furthering pending legislation in the interest of the defendant. (Powers v. Skinner, 34 Vt. 274; C. R. Co. v. C., S. P., M. & O. R. Co., Wis. 248; Marshall v. B. & O. R. Co., 16 How. 314; N. I. Co. v. R. & D. E. Co., 129 U. S. 643 ; Frost v. Belmont, 6 Allen, 127; Harris v. Roof, 10 Barb. 489; Sedgwick v. Stanton, 14 N. Y. 289 ; Wilber v. N. Y. E. C. Co., 12 N. Y. Supp. 456, 458; Cary v. W. U. T. Co., 47 Hun, 614; Richardson v. Crandall, 48 N. Y. 348 ; Chippinger v. Hepbaugh, 5 W. & S. 315; P. T. Co. v. Norris, 2 Wall. 45 ; Trist v. Child, 21 id. 441; Egerton v. Brownlow, 4 H. L. Cas. 1172; Milbank v. Jones, 127 N. Y. 376.) The court erred in allowing the introduction of testimony in rebuttal solely for the purpose of contradicting certain statements of the defendant, in which he characterized the present claim as a blackmailing operation, when the defendant had made no allusion thereto in his direct evidence, and the plaintiff’s counsel had brought out the statements first on cross-examination, and then had himself read them in evidence as rebuttal from the minutes of the formal trial. (Hildeburn v. Curran, 66 Penn. St. 59; Marx v. People, 63 Barb. 618 ; Baird v. Gillett, 47 N. Y. 186; Barnes v. Keene, 132 id. 13 ; Coleman v. People, 58 id. 555.) It was error to compel the defendant to enter upon a trial before a jury to whom the plaintiff’s counsel had stated that upon a former trial the plaintiff had secured a verdict. (People v. Greenwall, 115 N. Y. 520; Williams v. B. E. R. R. Co., 126 id. 96 ; Hilliard on New Trials [2d ed.], 74, 75 ; Crawford v. Morris, 5 Gratt. 90; Rieck v. Mayor, etc., 12 Daly, 72; Ryan v. P. M. Co., 57 Hun, 257 ; Hoxie v. H. Ins. Co., 33 Conn. 471; Butler v. Slam, 50 Penn. St. 456; Martin v. Orndorf, 22 Iowa, 504; Melvin v. Easley, 1 Jones, 386; Tucker v. Hamilton, 41 N. H. 317; Brown v. Saineford, 44 Wis. 291; Erben v. Lorillard, 19 N. Y. 29; Lessen v. Perkins, 39 Hun, 341.) The court erred in directing the jury that if they should find a verdict for the plaintiff, it was their ■ duty to allow the plaintiff the value of $10,000 in stocks and $10,000 in bonds of this railroad, as of October, 1886. (Hill v. W. E. S. R. Co., 158 Mass. 458.)</p> <p>The contract was not contra bonos mores. (Sedgwick v. Stanton, 14 N. Y. 289; Jenkins v. Hooker, 19 Barb. 435; Brown v. Brown, 34 id. 537; Cary v. W. U. T. Co., 47 Hun, 613; Mills v. Mills, 40 N. Y. 546; Lyon v. Mitchell, 36 id. 239.) Proof of performance was conclusively established by the defendant’s own letters calling for and acknowledging performance. The other proofs were simply cumulative, and may be expunged from the record without affecting in the slightest degree the sufficiency of the evidence. (1 Greenl. on Ev. § 189; Bowen v. Nat. Bank, 11 Hun, 228.) The amendment increasing the damages claimed from $10,000 to $15,000 was proper. The proof of value was in; the amendment neither introduced a new issue nor changed the old, and was properly granted. (Knapp v. Roche, 62 N. Y. 614; Harris v. Funkidge, 83 id. 91.) The refusal to impanel a new jury because of statement to the court as to verdict on former trial was proper. (Holmes v. Moffat, 120 N. Y. 160; Gall v. Gall, 114 id. 122.)</p>

Chamberlain, as executrix of her husband, Julius A. Chamberlain, deceased. The testator, by his will, gave his widow a life estate in all his property, real and personal, with remainder at her death, subject to the payment of general legacies, to Julius W. Chamberlain. The executrix presented a claim against the estate and the remainderman notified her that he would require proof of the claim.

This action was brought by plaintiff, one of the beneficiaries under the will of Phillip W. Engs, deceased, to have certain instruments executed by the executors of said Engs and others, declared illegal and void and for an accounting. 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. This is a proper case in which to ask the court for a judicial construction of the will. (Willard’s Eq. Juris. 490 ; Chipman v. Montgomery, 63 N. Y. 221; Whalrath v. Handy, 24 How.

<p>In an action upon a promissory note executed by B., defendants’ testator, which by its terms became due September 31, 1881, these facts appeared: The maker died August 13, 1887. Letters testamentary were issued March 33, 1889. The action was commenced March 31, 1890. Held, that the action was not barred by the Statute of Limitations ; that the death of the maker operated under the Code of Civil Procedure (§ 403) to suspend the running of the statute for eighteen months, which time expired on February 13, 1889, and then the statute again began to run, and the creditor had the benefit of whatever remained of the time limited, i. e., forty days, which time would have expired March 35, 1889; but as before, but within six months of that date, letters testamentary were issued plaintiffs had one year from their issuance within which to commence their action; that whatever interpretation might be given to the provision of the “ Construction Act” (§ 35, chap. 677, Laws of 1893), which defines the meaning of the term “year” when used in a statute to be twelve months, the case was ■ to be governed by the provision of the Revised Statutes, in force at the commencement of the action, which provides that the term year shall be taken to consist of 365 days (1 R. S. 606, § 3).</p> <p>Reported below, 64 Hun, 394.</p>

<p>In an action brought by plaintiff as receiver of a corporation, an order of the U. S. Circuit Court, appointing him receiver, was given in evidence. This contained a condition that upon filing a bond as prescribed, approved by the court, plaintiff could take and hold the property. There was no direct evidence that a bond was filed, but it appeared that after the order of appointment, upon application made to the same court and judge, plaintiff was authorized to bring an action in the Supreme Court of the state upon the claim in question, and, pursuant to such authority, this action was commenced; it also appeared that more than a year after his appointment he resigned his position as receiver. Held, that a motion to dismiss the complaint on the ground that no bond was filed was properly denied ; that it was a reasonable inference that the court, when it granted the order allowing the bringing of the action, was apprised of the facts, and ascertained that plaintiff had duly qualified as receiver; also that his continuing as receiver and the fact that the position became vacant by his resignation, implied that he was qualified.</p> <p>Also held, that the appointment of a successor to plaintiff pending the action did not have the effect to suspend its prosecution until the substitution of the new receiver as plaintiff; that the provision of the Code of Civil Procedure (§ 766) providing for the continuance of an action brought by a receiver, in case of his removal, by his successor, applied only to statutory receivers, and it did not appear that plaintiff was appointed by virtue of any statute, and not by the exercise by the court of general equity jurisdiction; but that if said. provision applied the substitution of the new receiver was not jurisdictional, and the case could be prosecuted in the name of the original plaintiff, until and unless a substitution was applied for and granted. (Code Civ. Pro. § 756.)</p>

Hodgman, deceased, and of the executors of deceased executors of said decedent. The appeal was by Mary E. Hodgman, as executrix, also individually as the widow of the decedent and as legatee. The facts, so far as material, are stated in the opinion. Appellant has the right to appeal. (Code Civ. Pro. §§ 1837, 1841, 2732, 2743; Beach v. Gregory, 2 Abb.

The nature of the action and facts, so far as material, are stated in the opinion. The direction of a verdict in favor of the plaintiffs was error. The testimony given at the trial proved an absolute waiver by the plaintiffs’ testator of the alleged defects of title relied on, which, if not constituting a waiver as a matter of law, in any event warranted the submission of the case to the jury.

The facts, so far as material, are stated in the opinion. The statute clearly authorized the application made by the relators to the commissioners. (Laws of 1882, chap. 410, § 822.) The word “ person ” in the statute includes corporations.

IT. Ward, as referee in this action, to pay to the defendant, Jane Smith, the share to which she was entitled in the proceeds of sale of certain real estate. The plaintiff commenced this action for the partition of certain real estate in the city of Hew York, of which one James Linden died seized. The defendant, Jane Smith, was a devisee of a portion of such real estate, and was called Jane Lego in the will.

The facts, so far as material, are stated in the opinion. The Code, by its express terms, permits the maintaining of proceedings supplementary to execution in a ease like this. (Code Civ. Pro. §§ 1812, 2463.) Unless a receiver can be appointed in supplementary proceedings, none can be appointed in the present instance in any other way. (Code Civ.

This action was brought to recover damages for personal injuries received by plaintiff while in defendants’ employ. The facts, so far as material, are stated in the opinion.

Cross appeals from judgment of the General Term of the Superior Court of the city of Rew York, entered upon an order made March 10, 1893, which modified, and affirmed as modified, a judgment in favor of .plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the material facts are stated in the opinion. The policies were not assignable.

. Appeal from order of the General Term of the Supreme Court in the first judicial department, made August 21, 1893, which affirmed an order of Special Term denying a motion by plaintiffs to set aside and vacate a judgment for costs and an extra allowance. The nature of the action and the facts, so far as material, are' stated in the opinion. The court had no jurisdiction of the subject-matter alleged in the complaint.

Crooker, with interest on moneys of the estate kept by him in his personal bank account, and with the costs collected by his attorney in an action brought by a creditor to set aside the assignment. This was a proceeding by Frederick E. Barnes, as assignee of Zenas S. Crooker, to obtain a decree discharging him upon his final accounting. The facts, so far as material, are stated in the opinion. The assignee should not be charged with interest on the money collected by him.

Appeal, under section 1336 of the Code of Civil Procedure, from a judgment entered upon an order of the General Term of the Supreme Court in the first judicial department, made June 30, 1893, which overruled defendant’s exceptions and -modified judgment in favor of plaintiffs entered upon a verdict ■ directed by the court, by increasing the interest allowed upon the damages from four to six per cent, and as modified affirmed the same.

This was a claim for damages for alleged negligence causing the death of Carson E. Locke, the claimant’s intestate. The facts, so far as material, are stated in the opinion. Claimant should be allowed damages for injuries received from the management of the canals, and damages from the conduct of those having charge-of canal, and from any accident, or other matter or thing connected with the canals.

<p>Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made June 30, 1893, which affirmed a judgment of the court of general sessions of the peace in and for the city and county of Hew York entered upon a verdict convicting the defendant of the crime of perjury.</p> <p>The facts, so far as material, are stated in the opinion.</p>

This action was brought to have the accounts of David Dunham Withers, as executor of the will of Reuben Withers, deceased, settled, and the rights and interests of the parties under said will determined, and for a distribution of the estate, etc. Reuhen Withers died in the city of New York prior to the 7th day of February, 1867, on which day his will was duly admitted to probate by the surrogate of the county of New York.

<p>Under the provision of the Statute of Uses and Trusts (1 R. S. 728, § 55, subd. 3) authorizing the creation of an express trust “to receive the rents and profits of land and apply them to the use of any person,” such a trust may be created for the payment of annuities.</p> <p>An annuity is not a ‘ ‘ sum in gross ” within the provision of said statute (1R. S. 730, § 63), declaring that the “rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created are assignable.”</p> <p>Where such a trust is constituted, duly limited in point of duration, the title to the whole estate vests in the trustee during the trust term, although the valid trust purpose will not absorb the whole income, and connected with the lawful purpose is an express or implied direction for an unlawful accumulation, except, at most, when the valid purpose is nominal only, being inserted as a mere cover for the unlawful accumulation.</p> <p>The tendency of the courts is toward liberality in construing the Statute of Uses and Trusts, and while there is no abatement in the strictness with which limitations are construed which transgress the rule of perpetuity, dispositions, by way of trust within that limit, will be sustained if they can fairly be brought within the spirit of the statute, although not within its literal language.</p> <p>By the will of S. and a codicil he gave to his executors his residuary estate, real and personal, in trust, to collect and receive the rents and income, and out of the net proceeds to pay certain annuities amounting in all to 820,000, during the life of his daughter S., and upon her death to convey said estate to such of his grandchildren named as should then be living, to'whom he devised and bequeathed the same. If any of said grandchildren should die previous to the death of S., leaving issue, such issue to take the parent’s share. Of the grandchildren named some were adults at the time the will was executed. The net annual income derived from said estate had been for several years prior to the testator’s death and continued thereafter tobe over §|80,000. No disposition was made in terms of the surplus income. In an action for the construction of the will, held, that it created a valid trust, and the grandchildren took remainders, which would vest in possession upon the death of S.; that the trust interest was inalienable and required tie estate to continue in the trustees during the life of S. (1R. S. 730. § 63); that in the absence of any express direction a direction for the accumulation of the surplus income was to be implied; that this implied direction was void, as it was to commence at the testator’s death, and might be for the benefit of persons not then in being, and was for the benefit of adults as well as infants (1R. S. 726, § 37), but that this did not affect the validity of the trust; that it could not be inferred that the primary object of the testator was to create the trust as a cover for a scheme of unlawful accumulation; that the surplus income belonged to and was distributable among the grandchildren named as “the persons presumptively entitled to the next eventual estate (1R. S. 726, § 40); that, assuming the grandchildren took vested remainders, they were not absolute remainders in fee, as upon the death of any grandchild during the trust term leaving issue, such issue, whether born before or after the death of the testator, would take the decedent’s share by substitution and as purchasers, and such a con» tingent limitation over necessarily suspended the power of alienation. Where the whole income of such a trust is not required for the valid trust purposes, the court cannot set apart a portion of the capital of the fund, which may be deemed sufficient to produce the income required for these purposes. Hanley v. James (16 Wend. 61), distinguished.</p> <p>Lang v. Rophe (5 Sandf. 363); Griffin v. Ford (1 Bos. 123), limited.</p> <p>Reported below, 64 Hun, 576.</p>

demurrer to the complaint entered upon a decision of the court on trial at Special Term. This action was brought to establish a trust agreement, to set aside various conveyances of real estate from the defendant Mary Murphy to the defendants James W. Whitney and Aurelia W. Moore, and for an accounting. The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made December 5,</p> <p>1893, which affirmed an order of Special Term denying an application by the relator for a mandamus against the superintendent of banks to compel him to approve and file a certificate of incorporation of the Peter Cooper Savings and Loan Society.</p> <p>The certificate in question recited that the signers thereof had associated themselves together “ to form a corporation for the purpose of accumulating a fund for the purchase of real property, the erection of buildings or the making of other improvements on land and paying off incumbrances thereon, aiding its members in acquiring real estate, making improvements thereon and removing incumbrances therefrom, and for the further purpose of accumulating a fund to be returned to its members who do not obtain advances when its funds shall amount to $100 per share.”</p> <p>The provision of the certificate as to capital and stock is as follows:</p> <p>“ XXII. Capital and stock.—The capital of the corporation shall consist of the accumulated savings of its stockholders paid in upon stock, with the profits arising from the investment thereof.</p> <p>“ The stock of the corporation shall consist of shares of the maturity or par value of $100 each, and shall he of three kinds or classes, to be known as installment, prepaid and income stock.</p> <p>“ Upon installment stock cash dividends shall not be paid, but the profits awarded to such stock shall be credited thereto until the maturity of the stock. The directors may permit payment of dues in advance on such stock, and upon such advance payments allow a rebate or discount at such rate per centum per annum for the time of payment in advance as they shall from time to time prescribe.</p> <p>“ Upon prepaid stock there shall be paid at the time of subscription dues to the amount of sixty dollars, and the holder thereof shall be entitled to receive out of the profits apportioned thereto semi-annual dividends in cash up to the rate of six per cent per annum. The profits apportioned to such stock over and above such dividends shall be credited thereto and be payable with the stock at its maturity.</p> <p>“ Upon income stock there shall be paid at the time of subscription dues to the amount of sixty dollars, and .the holder thereof shall be entitled to receive out of the profits apportioned thereto semi-annual dividends in cash up to the rate of eight per cent per annum. Any balance of profits apportioned to such stock, over and above the sum requisite to pay such dividends, shall not be credited thereto, but shall be reapportioned and credited to the other stock of the corporation.</p> <p>“ The board of directors may, at any time, refuse to issue income or prepaid stock, and may retire at any time any stock issued by the corporation by giving thirty days’ written notice to the holder of such stock and paying to him the full value thereof as the same appears upon the books of the corporation.</p> <p>“ All stock shall mature and be paid when the dues paid in thereon, with the profits apportioned and credited thereto, including cash dividends paid thereon, shall equal $100 per share.</p> <p>“ No member shall hold more than 300 shares of stock; provided, however, that he may, in addition to his individual holding, hold a like number as trustee for a minor child or children.”</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The right to issue prepaid stock, in the discretion of the incorporators or board of directors, is expressly given to associations of this kind by statute. (Laws of 1892, p. 1824, §§ 1, 3.) Even without the affirmative provisions of the Stock Corporation Law, the certificate would not, in providing for prepaid stock, be illegal or unauthorized by law. (Laws of 1851, chap. 122, § 7; Laws of 1875, chap. 564; Thompson on Bldg. Assn. 61; Davis on Bldg. Soc. 69; Endlich on Bldg. Assn. § 46.) The precise question involved on this appeal has been decided in favor of the contention of the appellant by the highest courts of England. (Chap. 32, 6 & 7 Wm. IV; 37 & 38 Vict. chap. 42; Scratchley on Bldg. & Land Soc. 430; Scott’s Case, L. R. [23 Ch. Div.] 453; Murray v. Scott, L. R. [9 App. Cas.] 523.)</p> <p>The certificate presented for approval did not comply with the provisions of the Banking Law in that it allows the issuance of “ prepaid stock ” and “ income stock,” so called. (Laws of 1892, chap. 687, § 10 ; Janet v. Cope, 68 Penn. St. 67; Kupfert v. G. B. & S. Assn., 30 id. 465; N. A. B. Assn. v. Sutton, 35 id. 463-467; Laws of 1892, chap. 689; Thompson on Bldg. Assn. 2, 60, 61; Laws of 1851, chap. 122; Laws of 1887, chap. 556.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The dismissal of the complaint, on the ground that the indorsement by Bartlett of the name of the payees upon the checks which he had drawn as cashier to the order of Brown & Stubbs was not forgery, was error. (Miller v. People, 52 N. Y. 305; 3 Chitty Crim. Law, 1022; 2 Bishop Crim. Law, §§ 432, 495; 2 Archbold Crim.

This action was brought by plaintiff as substituted assignee for the benefit of the creditors of the North River Lumber Company, to recover from defendant the value of certain property levied on by him as sheriff of the county of New York, by virtue of certain attachments against the corporation. The facts, so far as material, are stated in the opinion.

Cross appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 13, 1893, which directed judgment in favor of plaintiff upon a case submitted under section 1279 of the Code of Civil Procedure. This was a submission of a controversy to the General Term in the first department upon agreed facts.

<p>Where a sale and delivery of goods is procured by fraudulent representations on the part of the purchaser the title and possession pass to him. notwithstanding the fraud, subject to the right of the vendor to rescind the contract of sale.</p> <p>Until the vendor has exercised his option to rescind, either directly or by some act in disaffirmance of the sale, the purchaser has a leviable interest in the goods, and if levied upon by attachment or execution against the purchaser prior to rescission, it cannot be held that the vendor had “the right to reduce” the property into his possession within the meaning of the provision of the Code of Civil Procedure (§ 1690, subd. 3) which declares that an action to recover a chattel cannot be maintained “ when it was seized by virtue of an execution or a warrant of attachment against the property of a person other than the plaintiff, and at the time of the seizure the plaintiff had not the right to reduce it into his possession.”</p> <p>Accordingly held, where, prior to any act on the part of the vendor showing an intention to rescind such a contract of sale, the goods had been levied upon by virtue of an attachment against the purchaser, that an action of replevin to recover the goods was not maintainable.</p> <p>It seems, the remedy of the vendor, in case of refusal of the sheriff to deliver the goods on demand, is an action for conversion.</p>

28, 1893, which reversed a decree of the Surrogate’s Court of the county of Kings construing the will of Gilbert Potter, deceased, in connection with a judicial settlement of the accounts of his executors. Gilbert Potter died in Brooklyn, in 1883, leaving a widow, two daughters, named Mrs. Beard and Mrs. Curtis, and a son named Gilbert. Mrs. Beard had two children, who were testator’s only grandchildren.

<p>Appeal from order of the General Term of the Supreme 'Court in the second judicial department, made the second Monday of May, 1893, which affirmed a decree of the Surrogate’s Court of Kings county settling the accounts of the petitioner as the sole surviving trustee under a codicil to the will of James Nesmith, deceased. ></p> <p>'The facts, so far as material, are stated in the opinion.</p> <p>The trustee should be charged with interest at the legal rate upon all moneys deposited in his private bank account in the name of Nesmith & Sons. (Dunscombe v. Dunscombe, 1 Johns. 508; Ex parte Townsend, 15 Ves. 470 ; Spencer v. Popham, 5 Redf. 425; Cook v. Lowry, 95 N. Y. 103.) The contestants did not in any way acquiesce in or ratifyjthe deposit of the trust funds in the private bank account of Henry E. Nesmith, nor the use which he made of said funds so deposited. (Adair v. Brimmer, 74 N. Y. 539 ; Mumford v. Mumford, 6 Johns. 1.) The surrogate erred in that part of his first conclusion of law which holds and declares that the increased income arising from the expenditures for building the shed on the pier of the trust property mentioned should be retained by the trustee until he has received a full return for his advances for that purpose and interest, if the trust shall last so long. (Dannat v. Jones, 2 Den. 602; Harris v. Clark, 7 N. Y. 242; Kilpatrick v. Johnson, 15 id. 322, 324; Pray v. Hegeman, 92 id. 508; Palmer v. De Forest, 95 id. 13; Cook v. Lowry, Id. 103; Hobson v. Hale, Id. 588; Williams v. Williams, 8 id. 538; 1 Perry on Trusts [2d ed.], §§ 395, 397; Gray on Perpetuities, 671-679 ; In re Underhill, 117 N. Y. 471; In re Hawley, 104 id. 250; Bevan v. Cooper, 72 id. 317.) As the beneficiaries, including the contestants, were absolutely entitled to the net earnings of the trust estate, the act of Henry E. Nesmith in taking those earnings and appropriating them to the making of improvements and additions to the corpus of the trust estate was a conversion, and the contestants are entitled to interest on the amounts so taken from the date of the taking. The taking and the use made of the earnings being without legal right and in violation of the right of contestants, the trustee is liable for interest. (Freeman v. Cook, 6 Iredell Eq. 373; Eaves v. Hickson, 30 Beav. 136; Barrett v. Wyatt, 8 Jurist, 1045.)</p> <p>The surrogate correctly held that the cost of building the shed was payable out of the increased rental produced by and received for said shed. (Morse v. Morse, 85 N. Y. 53; Greason v. Ketaltas, 17 id. 491; Hill on Trustees, 429; Bowers v. Strathmore, 8 Lond. Jur. 92; Vyse v. Foster, L. R. [8 Ch. App.] 309.) The surrogate correctly allowed the trustee for office rent and office expenses. (Fowler v. Lockwood, 3 Redf. 465; Redf. Law & Pr. [4th ed.] 455.) The surrogate has charged the trustee with all the interest for which the trustee can, in any event, be held liable. (Jacot v. Emmett, 11 Paige, 142; Price v. Holman, 135 N. Y. 124.)</p>

<p>Motion to amend remittitur.</p>

This action was brought to recover the sum of $100,000, less a payment thereon of $25,000, with interest from the 26tli day of February, 1889.