Volume 201 — New York Reports

.The nature of the action and the facts, so far as material, are stated in the opinion. The restrictive covenant cannot be said to be unenforceable. (Anthony v. Harrison, 14 Hun, 198; 74 N. Y. 618; Justice v. Lang, 42 N. Y. 493; Madan v. Sherard, 73 N. Y. 329; Schoonmaker v. Hoyt, 148 N. Y. 425; Ebaugh v. German Reformed Church, 3 E. D. Smith, 60; M. A. B. Church v. Bapt.

<p>Appeal — review of decision of Appellate Division upon submitted controversy — rule for construction of grants of land for public use — when grant of land for public highway conveys only an easement over the lands therein mentioned.</p> <p>The Court of Appeals has no jurisdiction, in reviewing the decision of an Appellate Division upon a submitted controversy, to draw inferences of fact from the facts within the stipulated case. (Marx v. Brogan, 188 N. Y. 481, followed.)</p> <p>The language of an instrument which transfers property for public use, in lieu of condemnation proceedings, must be construed strongly and strictly in favor of the landowners. The law will not, by construction, effect through the instrument a grant of a greater interest or estate than was essential to the public use for which the grant is sought. No implication is permissible that the instrument granted an estate greater than was absolutely necessary to satisfy its language and object.</p> <p>Under a statute enacted in 1703 commissioners, who were appointed for the purpose of laying out and regulating highways, made a return that they had viewed and laid out a highway contemplated by that act, and which was in fact part of the Bloomingdale road. It was originally laid out to the width of four rods. Held, that the action and the certificate of the commissioners, under and in accordance with the provisions of that act, gave the road so laid out its original existence as a public, common and general highway, and that the public acquired in the land thereof only the easement essential to the use and enjoyment thereof as such.</p> <p>Subsequently, in pursuance of legislative action, the legal width of the Bloomingdale road was made two rods instead of four, and the easement of the city of New York in two rods thereof was thereupon surrendered. Thereafter the common council took such proceedings under an act of the legislature, to open the Bloomingdale road to the width of four rods, as that by an instrument dated March 24, 1795, certain persons conveyed to the “Mayor, Aldermen and Commonalty of the City of New York, and their successors, all that the parcel of their respective lands, or so much thereof as may be necessary for the said road of the breadth of four rods as aforesaid, to have and to hold the said parcel of the said respective roads, or so much thereof as may be necessary for the said public road as aforesaid, with the appurtenances, unto the said Mayor, Aldermen and Commonalty of the City of New York, and their successors, to and for the sole and only use of a public road for ever;” this was the road in question. Held, that while the act, under the authority of which the city was then acting, conferred upon the city the power to acquire, through condemnation proceedings, the fee of the land required for the road, it did not by its language appropriate the fee or compel the city to take the fee, and there is no presumption that the grantors intended to convey all their estate in the land. The intention and purpose of the parties did not necessitate the conveyance of the fee of the land and would be completely fulfilled by the easement therein of the free and common right of way to the public, with the powers and privileges incident thereto. Hence, the deed of March 24, 1795, conveyed to the city of New York only an easement over the lands therein mentioned.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 1, 1909, affirming a judgment in favor of defendant entered upon a verdict directed by the court and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>This was a scaffolding for which the employer was responsible under sections 18 and 20 of chapter él 5 of the Laws of 1897, known as the Labor Law. (Stewart v. Ferguson, 164 N. Y. 553; Cuddy v. I. R. T. Co., 125 App. Div. 681; 195 N. Y. 415 ; Jenks v. Thompson, 179 N. Y. 26; Gruner v. Texas Co., 133 App. Div. 413; Welk v. Jackson, 98 App. Div. 247; Haggblad v. B. H. R. R. Co., 117 App. Div. 838; Convey v. Finn, 130 App. Div. 440 ; Nixon v. Thompson-Starrett Co., 131 App. Div. 614; Cummings v. Kenny, 97 App. Div. 114; McLaughlin v. Eidlitz, 50 App. Div. 518.) The questions of contributory negligence and assumption of risk were for the jury. (Anderson v. Milliken, 123 App. Div. 614; Warren v. Post & MoCord, 128 App. Div. 572; Tierney v. Vunck, 97 App. Div. 1; Williams v. Roblin, 94 App. Div. 177; Harvey v. McConchie, 77 App. Div. 361; 177 N. Y 569.)</p> <p>Section 18 of the Labor Law has no application to a situation created by the workmen themselves without the knowledge of the employer, especially when the condition complained of was created with materials obtained and used by such workmen unknown to the employer and without any means of knowledge on his part. ( Wingert v. Krakauer, 92 App. Div. 223; Rotondo v. Smyth, 92 App. Div. 153; Williams v. First Nat. Bank of Utica, 118 App. Div. 555 ; 121 App. Div. 929; 195 N. Y. 576; Stewart v. Ferguson, 164 N. Y. 553.)</p>

The facts, so far as material, are stated in the opinion. Damage to an abutting owner whose land is injured by the change in the grade of a street by the municipal authorities is damnum absque injuria, in the absence of an express statute providing for compensation.

<p>Negligence — injury caused by obstruction of street by occupant of property abutting thereon — violation of city ordinance forbidding such obstruction not alone sufficient to establish liability of person permitting obstruction— erroneous charge.</p> <p>The violation of a city ordinance does not subject the wrongdoer to a civil liability for damages; but its disregard is something which, in connection with other facts, furnishes some evidence for the consideration of a a jury in passing upon the question of the liability of a defendant.</p> <p>Defendant during the day piled up beer lccgs in an areaway occupied by it so that the pile extended some distance into an alley, on the opposite side of which were dwellings, and allowed the kegs to remain there through the evening and night. Plaintiff, while at play in the evening, struck one of the kegs and caused two to fall upon him, breaking his arm. Plaintiff relied on an ordinance of the city of Buffalo which prohibited any person from using “any part of a public street or alley or.any public grounds for the deposit of any building, paving or sewer materials, or any other materials, except for the immediate transfer of the same to the premises fronting on the portion of said street so occupied,” or from allowing the same tc remain thereon “ longer than sundown of the same day, under penalty of not less than ten dollars nor more than fifty dollars.” Held, that the jury should have been instructed that the violation of such city ordinance in and of itself is not sufficient to make out negligence against the defendant. It is a circumstance to be taken into account in connection with the manner in which the kegs were piled in the alley and to be considered as a circumstance bearing on the question of negligence on the part of the defendant; and it was error to withdraw such an instruction, and to charge “that in piling the barrels in the streetit (the defendant) violated a duty which it owed to the public, including this boy.”</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The certificates given by the defendant’s officers and agents were by the express terms of the contract, in the absence of fraud or mistake and of this there was no proof, conclusive on the question of performance and' entitled > the plaintiff to the direction of a verdict for the amount certified therein, as due for work performed under the contract.

The nature of the action and the facts, so far as material, are stated in the opinion. The question as to whether or not defendant converted the moneys in question was one of fact for the jury. (Ten Eyck v. Whitbeck, 156 N. Y. 349; Sundheimer v. City of New York, 176 N. Y. 495 ; Gordon v. Ashley, 191 N. Y. 192; Laverty v. Snethen, 68 N. Y. 522; Brewster v. Striker, 2 N. Y. 19; Sherman v. Willett, 42 N. Y. 146; Savorahn v. Kamaiky, 120 App. Div. 110; 193 17.

The nature of the action and 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. (Henson v. L. V. R. R. Co., 194 N. Y. 205 ; Ruppert v. B. H. R. R. Co., 154 N. Y. 90; Harrison v. N. Y. C. & H. R. R. Co., 195 N. Y. 86 ; Gillrie v. City of Lockport, 122 N. Y. 403 ; Ryan v. C. C. G. Co., 133 App. Div. 467; Hindley v. M. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. There was an entire failure of proof on the part of the plaintiff to show defendant’s negligence, or his own freedom- from contributory negligence, and the judgment entered upon the verdict cannot be sustained. (Birkett v. K. Ice Co., 110 N. Y. 504; Hartfield v. Roper, 21 Wend. 614; Brownell v. Flagler, 5 Hill, 282; Smith v. Bailey, 14 App. Div. 283; Lyons v. Avis, 5 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1910, which affirmed an order of Special Term directing the receiver of the defendant in the above-entitled action, South Shore Natural Gas and Fuel Company, to pay to the plaintiff therein the amount of a judgment theretofore recovered by her in such action, or to give security for the payment thereof.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The order is an arbitrary diversion of moneys in the hands of the receiver from the business which he is directed by the order of the court to carry on. (Grover v. McNeely, 72 App. Div. 575 ; Bank of Ogdensburgh v. Arnold, 5 Paige, 38 ; Astor v. Turnder, 11 Paige, 436 ; Argall v. Pitts, 78 N. Y. 239 ; Wyckoff v. Scofield, 98 N. Y. 475 ; D. & M. Mfg. Co. v. Cannella, 89 Hun, 21.) The order of the court, in effect, determines the questions involved in the appeal to the Court of Appeals and in the actions brought by the plaintiff upon the ground of fraud. This is an unheard-of proceeding on the part of the court; it is a determination of issues in pending litigations upon affidavits presented on the motion. (Moller v. Wells, 29 Hun, 587; Rodman v. Henry, 17 N. Y. 482; Barnard v. Kobbe, 54 N. Y. 516; Krone v. Klotz, 3 App. Div. 587; Holmes v. O' Regan, 68 App. Div. 318 ; Schrauth v. D. D. S. Bank, 86 N. Y. 390.) There is no statutory or other warrant for the order. It directs payment of property to which there is a substantial dispute the right to which must be determined by an action. (Barnard v. Kobbe, 54 N. Y. 516.)</p> <p>The receiver is at all times subject to the direction of the court in the performance of its duties. (People v. Bank of Staten Island, 112 App. Div. 791; Wand v. Petrie, 157 N. Y. 301; Tillotson v. Wollcott, 48 N. Y. 188.) The defendant being solvent and the receiver carrying on the business for the purpose of delaying creditors, plaintiff is entitled to the order appealed from. (Wallace v. Wallace, 21 App. Div. 542; Schloss v. Schloss, 14 App. Div. 40; Matter of Thompson, 10 App. Div. 40; Halpin v. Mutual Brewing Co., 91 Hun, 220; Duncan v. Treadwell, 82 Hun, 376 ; Meyers v. Meyers, 15 App. Div. 488 ; Webster v. Lawrence, 47 Hun, 565.) The court has power to control the disposition of the funds in the hands of the receiver. (Brian v. Light, 37 Misc. Rep. 771; Youngs v. Klunder, 7 N. Y. Supp. 498.)</p>

On the 15th of January, 1907, the plaintiffs, who were diamond merchants in the city of New York, entered into a written contract with one Harry Levisohn by which they appointed him their agent and employed him as such “to carry as traveling salesman and sell ” for them “ a line of mounted diamonds and watches ” and turn the net proceeds over to them after deducting the compensation agreed upon.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in giving judgment for more than one penalty. The judgment for fifteen penalties was cumulative and improper. (Sturges v. Spofford, 45 P. Y. 446; People v. McDermott-Bunger Co., 38 Misc. Rep. 365 ; People v. Wright, 19 Misc. Rep. 135 ; People v. Kellina, 23 Misc.

The facts, so far as material, are stated in the opinion. The failure of the clerk to ask the defendant when he appeared for judgment whether he had any legal cause to show why judgment should not be pronounced against him deprived defendant of a substantial legal right. (Code Crim.

judgment in favor of plaintiffs entered upon a verdict and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiffs’ decedent was not shown to have been free from contributory negligence. (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308; Daniels v. S. I. R. T. Ry. Co., 125 N. Y. 407; Harder v. R., W. & O. R. R. Co., 2 N. Y. Supp. 70; Stack v. N. Y. C. & H. R. R. R. Co., 96 App.

John Cunnion, on September 9, 1907, executed a will. On June 6, 1908, he executed another will. He died on the 16th day of August, 1908. After his death the will of September 9, 1907, was found, but the will of June 6, 1908, could not be found. This proceeding was commenced by a legatee under the will of September 9, 1907, to have the same probated.

The nature of the action and the facts, so far as material, are stated in the opinion. The payee, and first indorser of a promissory note, to recover of the maker for moneys paid as such indorser, must take up the note and bring his action on it against the maker, and cannot recover from the maker for moneys paid for the maker’s benefit and impliedly at his request. (Woodruff v. Moore, 8 Barb. 171; Converse v. Cook, 25 Hun, 44; 31 Hun, 417; Crampton v. Foster, 29 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Facts sufficient to show negligence on the part of the defendant were proven and a judgment for the plaintiff based thereon would have been warranted.

<p>Appeal from, a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 21, 1910, upon an order reversing upon the facts and law a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint.</p> <p>This is an action to set aside a conveyance from Edward E. Gwynne, deceased, to his mother, Louise Gwynne, also deceased. The contest is between the plaintiff, as trustee in bankruptcy, and certain infant defendants. The question whether the plaintiff is entitled as such trustee to recover for the benefit of the creditors of Edward E. Gwynne, the property thus conveyed, or whether it has passed to the children of the bankrupt, depends upon the construction of the fourth and fifth paragraphs of the last will and testament of Edith O. Gill, deceased, who was an aunt of the bankrupt.</p> <p>Under the will of Edith 0. Gill, the bankrupt, Edward E. Gwynne, acquired a one-half interest in remainder in certain premises located on East 86th street, Flew York city. This interest was subject to a life estate in William Fearing Gill, the husband of the testatrix, and he is still living. The bankrupt, Edward E. Gwynne, died in 1904. Prior to his death and on February 8th, 1901, he deeded his interest in the premises to his mother, Louise Gwynne, who has since died. After this transfer, and in 1902, the grantor, Edward E. Gwynne, was duly declared a bankrupt in proceedings instituted by himself, and the plaintiff was appointed the trustee of his estate. This action was commenced in 1902 by the plaintiff as such trustee, to set aside the transfer of said property from the bankrupt to his mother as in fraud of creditors of the bankrupt. The testatrix gave to her husband, William Fearing Gill, an estate for life or until his remarriage, in the premises on 86th street. Upon his death or remarriage it was to go to her two brothers, David Eli Gwynne (the father of the bankrupt) and Abraham Evan Gwynne. The fourth paragraph of the will is as follows:</p> <p>“ On the decease or the remarriage of my said husband I give and devise all and singular the real estate, above devised to my husband for and during his natural life or until he shall remarry, to my brothers David Eli Gwynne and Abraham Evan Gwynne in fee share and share alike.-</p> <p>“ I also give and bequeath to my said brothers to be equally divided between them, all my personal property from and after the decease or remarriage of my husband. Should either of my said brothers die before me, or before the death or remarriage of my said husband not leaving lawful issue him surviving then the survivor of them shall have and take the share of the said real and personal estate, which the deceased, if living, would have taken. But if the deceased shall leave lawful issue, then I give, devise and bequeath to such issue their parents’ share in said real and personal estate.” The fifth clause of the will directs the executors “ from and after the death of my husband or his remarriage, to deliver over all and singular said real estate to my brothers David Eli Gwynne and Abraham Evan Gwynne or to such other person or persons as shall be entitled to same pursuant to the terms and conditions of this will, and to make division of the principal of my personal estate.”</p> <p>David Eli Gwynne died in January, 1900, leaving him surviving' Louise Gwynne, his widow, and Edward E. Gwynne, the bankrupt, his only child. The bankrupt died in 1904, leaving him surviving three children, the infant defendants Alice, Edward 0. and Erskine Gwynne, under the age of fourteen years. On behalf of these infant defendants it is claimed that their father, the bankrupt, acquired, not an absolute vested interest in remainder upon the death of his father David Eli Gwynne, but an interest which was contingent upon his surviving the life tenant, William Fearing Gill; and that upon the bankrupt’s pre-decease of the life tenant the interest of the former was divested in favor of his children, these infant defendants; that the bankrupt’s grantee acquired no title, and, therefore, the trustee in bankruptcy cannot recover. This contention has been upheld by the Appellate Division in the decision from which this appeal is taken.</p> <p>The action has been twice tried. Upon the first trial the complaint was dismissed upon the ground that the transfer was not in fraud of creditors. Upon appeal to the Appellate Division that judgment was reversed and a new trial granted, it being held that the evidence was sufficient to establish fraud in the transfer. (129 App. Div. 112.) The construction of the will of Edith 0. Gill does not seem' to have been expressly passed upon in either of those decisions. On the second trial judgment was rendered in favor of the plaintiff, the trial court having found that the transfer was made to hinder, delay and defraud creditors of the said Edward E. Gwynne, and that his mother, the grantee, took the property with knowledge of such fact. It further held that the bankrupt, Edward E. Gwynne, took an absolute vested interest in remainder, not subject to be divested. A second appeal to the Appellate Division resulted in an order of reversal upon the facts and the law, but the opinions indicate that the decision was based solely upon the ground that the interest in the property which the bankrupt acquired under the terms of the will of said Edith 0. Gill, deceased, became divested upon his ■death before that of the life tenant, and, therefore, the plaintiff, as his trustee, could acquire no title tb rough him, whether the transfer was fraudulent or otherwise. The complaint was accordingly dismissed and no new trial awarded. From this latter decision the plaintiff has appealed to this court.</p> <p>Edward Gwynne took an absolute vested remainder under Mrs. Gill’s will, and not one subject to be divested by his death before the life tenant. (Schouler on Wills, 269, 270; Benson v. Corbin, 145 N. Y. 351; Nelson v. Russell, 135 N. Y. 137; Matter of Seaman, 147 N. Y. 69 ; Corse v. Chapman, 153 N. Y. 466; Arnot v. Arnot, 75 App. Div. 230 ; Dore v. Torr, 128 Miss. 38; Connelly v. O’Brien, 166 N. Y. 406; Roosa v. Harrington, 171 N. Y. 341; Davidson v. Jones, 112 App. Div. 254; Matter of Tompkins, 154 N. Y. 643.) The direction for dismissal of the complaint, which direction was coupled by the Appellate Division with the reversal of the former judgment for plaintiff, was erroneous. (Duclos v. Kelly, 197 N. Y. 76 ; Ross v. Caywood, 162 N. Y. 259 ; Putnam v. L. S. D. Co., 191 N. Y. 166 ; Van Buren v. Wotherspoon, 164 N. Y. 368; Lopez v. Campbell, 163 N. Y. 340; Mansfield v. Mayor, etc., of N. Y., 165 N. Y.208.)</p> <p>Edward E. Gwynne, the grantor, upon his death became divested of all right, title or interest in or to the premises in question, and the remainder in question vested in said infants, subject to be divested upon their death before the life tenant. (Drake v. Drake, 56 Hun, 590; 134 N. Y. 220; Soper v. Brown, 136 N. Y. 244; Chatwell v. Schreiner, 148 N. Y. 683; More v. Littel, 41 N. Y. 66 ; Dougherty v. Thompson, 167 N. Y. 472 ; Baer v. Hendrich, 147 N. Y. 348; Hebberd v. Lese, 107 App. Div. 425; Gilman v. Guaranty Trust Co., 111 App. Div. 656.)</p>

judicial department, entered June 3,' 1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and' the facts, so far as material, are stated in the opinion. Frawley, the tenant of Gretiy, was not the agent of the defendant, and the court erred in receiving the conversation between Frawley, his son, and Miller, the milk inspector, and Peacock, the man in charge of the factory in the absence of the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. If any distribution of assets ' can be said to have been effected by the so-called bonds either of 1898 or of 1907, it was a distribution of a part of the capital of the Adams Express Company — not of earnings which had been capitalized. (People ex rel. Lemmon v. Feitner, 167 N. Y. 1; McLouth v. Hunt, 154 N. Y. 179; Robertson v. De Brulatour, 188 N. Y. 301 ; Mutual Ins.

The facts, so far as material, are stated in the opinion. The admission in evidence over objection and exception of an attempted assault by the defendant upon his brother was prejudicial error. (People v. Molineux, 168 N. Y. 264; People v. Governale, 193 N. Y. 581; People v. Hill, 198 N. Y. 64; People v. Degarmo, 179 N. Y. 130; People v. Romano, 84 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 19,1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. The Chautauqua County Court was without jurisdiction of the cause of action in this case, and the judgment appealed from must be reversed and the complaint dismissed. (Code Civ.

<p>Bills, notes and checks — method of presenting note and demanding payment thereof — demand on maker at proper place, but over telephone, insufficient.</p> <p>Presentment of a note and demand of payment must be made by actual exhibition of the instrument itself or, at least, the demand should be accompanied by some clear indication that the instrument is at hand, ready to be delivered, and such must really be the case. While it may not be necessary to actually produce the note if the maker refuses to pay it, it must be at the place for presentment, otherwise the presentment is insufficient. Hence a demand over the telephone on the maker, at the place specified in the note, is not sufficient.</p>

The facts, so far as material, are stated in the opinion. The Albany County Court did not have jurisdiction to try the defendant for the crime of murder in the first degree. (N. Y. & O. M. R. R. Co. v. Van Horn, 57 N. Y. 473; Bootjer v. Supreme Council, 78 App. Div. 546; Amsbry v. Hinds, 48 N. Y. 57; Isola v. Weber, 147 N. Y. 329; U. S. Fidelity Co. v. Struthers, Wells Co., 209 U. S. 314; U. S. v. American Sugar Co., 202 U. S. 577; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The sale and issue of the three shares of stock to Alexander Hamilton was illegal and was a fraud upon the corporation and its stockholders. (2 Clark & Marshall on Priv. Corp. § 408 ; 2 Purdy’s Beach on Priv.

<p>Real property — vendor and purchaser — specific performance-— contract for purchase of land by two joint vendees will not be enforced where one of such vendees refused to take title unless deed be made to him alone.</p> <p>Where a contract for the purchase of land is entered into by two persons as vendees and joint purchasers, and a conveyance is refused on the law day by the vendee who alone seeks performance, unless it is made to him to the exclusion of the other vendee, the rights of both vendees are forfeited by reason of their failure to fulfill the terms of the contract and the court will not decree specific performance.</p>

The facts, so far as material, are stated in the opinion. The general rule is that a director cannot be removed from office during the term for which he is elected. (Cook on Corp. § 711; Thompson on Corp. § 1084.) Mandamus is the proper remedy. (People ex rel. Deverell v. M. M. P. Union, 118 N. Y. 108; Matter of Gardner, 68 N. Y. 467; People v. N. Y. I. Asylum, 122 N. Y. 190; Hogan v. Bd. of Education, 200 N. Y. 370; People v. A. & S. R. R. Co., 57 N. Y. 161; People ex rel.

By her complaint in this action the plaintiff alleged that herself and the “ defendant Jennie Draffen are each seized and entitled in fee simple absolute to one undivided half ” of certain premises in the county of Delaware, and the relief demanded is a partition of the same in the usual form.

Appeal, by permission, from a judgment of' the Appellate Division of the Supreme Court in the first judicial department, entered December 14,1909, which affirmed a determination of the Appellate Term… Held: 15 App. Div. 310; McCready v. M. L. Ins.

The appeal from the judgment coming on for argument the respondent moved to dismiss the appeal on the ground that the Court of Appeals has no jurisdiction to entertain the same in the absence of a certificate by the Appellate Division that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals under subdivision 2 of section 191 of the Code of Civil Procedure or without having obtained in lieu thereof an allowance of the appeal by a…

The nature of the action and the facts, so far as material, are stated in the opinions. It is undisputed that the decedent’s death was not caused by the injuries sustained in the accident, but was caused by delirium tremens due to excessive drinking, and it was, therefore, error to submit the case to the jury. (Seifert v. B. H. R. R. Co., 169 N. Y. 254; Hoey v. M. St. Ry. Co., 70 App. Div. 63; McQuade v. M. St. Ry. Co., 84 App. Div. 637; Koch v. Zimmerman, 85 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 16, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered J une 9,1909, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in tlie opinion.</p> <p>The verdict having been directed by the trial court the Court of Appeals can determine whether or not there is any evidence to sustain the judgment. (Code Civ. Pro. § 191, subd. 4; S. Nat. Bank v. Weston, 172 N. Y. 250.) There is no evidence in the case which would justify the court or jury in finding the plaintiff’s intestate free from contributory negligence. (Lamb v. U. Ry. Co., 195 N. Y. 266; Rupert v. B. H. R. R. Co., 154 N. Y. 90 ; Wiwirowski v. L. S. & M. S. R. Co., 124 E. Y. 421; Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330, 332; Zaun v. L. I. R. R. Co., 139 App. Div. 719; Goldberg v. Herman, 136 App. Div. 533.)</p> <p>The rule of unanimous affirmance applies, since the verdict is not to be deemed a directed one within the meaning of the Constitution, but, by the consent of both parties, a decision by the court of the issues or questions involved rather than by the jury. Therefore, the question whether the verdict is supported by any evidence is not open to review in this court. (Westervelt v. Phelps, 171 N. Y. 212; Thompson v. Simpson, 128 N. Y. 283 ; Smith v. Weston, 159 N. Y. 194.) There was no eyewitness to the accident, which gives the case the benefit of the legal rule that but slight evidence is necessary to make the question of contributory negligence one of fact for the jury. ( Woodworth v. N. Y. C. & H. R. R. R. Co., 55 App. Div. 23; 170 N. Y. 589 ; McDonald v. Simpson & Crawford Co., 114 App. Div. 859; Flannigan v. N. Y., N. H. & H. R. R. Co., 125 N. Y. 773 ; Irish v. U. B. & P. Co., 103 App. Div. 45; 183 N. Y. 508.)</p>

verdict. The nature of the action and the facts, so far as material, are stated in the opinion. There can be no recovery at common law. (Eckes v. Steller, 98 App. Div. 76 ; Casey v. Adams, 137 Ill. App. 404; 234 Ill. 350; Stanwood v. Clancy, 75 Atl. Rep. 293; Birch v. City of New York, 190 R. Y. 397.) There can be no recovery under the Building Code. (Koch v. Fox, 71 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in tire second judicial department, entered October 7, 1910, which affirmed a decree of the Kings County Surrogate’s Court admitting to probate the will of Charles F. Hoffman, deceased, and construing certain provisions thereof.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The deceased died intestate. (Herzog v. T. G. & T. Co., 177 N. Y. 86; Leach v. Godwin, 198 N. Y. 35; Close v. F. L. & T. Co., 195 N. Y. 92; Matter of Title G. & T. Co., 195 N. Y. 339; Robinson v. Martin, 200 N. Y. 159.) The portion of the residuary or principal estate bequeathed to Wilhelmina Bourdette and John F. Hoffman should go to the testator’s next of kin. (Gallagher v. Crooks, 132 N. Y. 338; Matter of Trumble, 199 N. Y. 454; Pomeroy v. Hincks, 180 N. Y. 73; Downing v. Marshal, 23 N. Y. 366; Moffett v. Elmendorf, 152 N. Y. 484; Matter of Russell, 168 N. Y. 173; Herzog v. Title G. & T. Co., 177 N. Y. 97; Kerr v. Dougherty, 79 N. Y. 327; Morton v. Woodbury, 153 N. Y. 243; Matter of Kimberly, 150 N. Y. 93.)</p> <p>The testator died intestate as to the shares of his residuary estate given in the codicil to John F. Hoffman and Willielmina Bourdette because of the occurrence of their deaths prior to that of the testator. (Lynch v. Pendergast, 67 Barb. 500 ; Hard v. Ashley, 117 N. Y. 606; Westcott v. Cady, 5 Johns. Ch. 334; Herzog y. T. G. & T. Co., 177 N. Y. 86; Morris v. Sickley, 133 N. Y. 409; Matter of T. G. & T. Co., 195 N. Y. 339 ; McLean v. Freeman, 70 N. Y. 87; Van Kleeck v. Dutch Church, 20 Wend. 471; Colt v. Colt, 32 Conn. 418; Wetmore v. Parker, 4 Abb. [N. C.] 317.) John F. Hoffman’s share in the residue should be measured by the amount of his $10,000 legacy, plus the value of the Caroline plantation given to him in article 3 of the will. ( Wetmore v. Parker, 52 N. Y. 450; Colt v. Colt, 32 Conn. 422 ; Van Kleeck v. Dutch Church, 20 Wend. 457; Weeks v. Cornwell, 104 N. Y. 325; Morris v. Sickley, 133 N. Y. 459; Rogers v. Rogers, 153 N. Y. 347.)</p> <p>Article I of the will, which gives a legacy of $75,000 to the proponent Margaret Hoffman, and article II, which gives a like bequest of $50,000 to the testator’s niece, Carolyn Hoffman, are entirely valid dispositions. (Close v. F. L. & T. Co., 195 N. Y. 92; 1 Jarman on Wills [6th ed.], *325, 433, 436 ; Wager v. Wager, 96 N. Y. 164 ; Taggart v. Murray, 53 N. Y. 233 ; Terry v. Wiggins, 47 N. Y. 512; Norris v. Beyea, 13 N. Y. 273 ; Tyson v. Blake, 22 N. Y. 558; Smith v. Van Ostrand, 64 N. Y. 278; Matteson v. Palser, 173 N. Y. 404; Close v. F.L. & T. Co., 195 N. Y. 92.) Article VI of the will contains au entirely valid disposition of the entire residuary estate. (Close v. F. L. & T. Co., 195 N. Y. 92.) The testator did not intend or direct that the bulk of his estate should be held as a single trust fund. The entire estate was divided, and lawful trusts were created as well of the legacies as of the shares of the residuary estate based upon such legacies. (Matter of Mount, 185 N. Y. 162.) The codicil contained no effective disposition of any portion of the residuary estate. (Robinson v. Martin, 200 N. Y. 159.)</p> <p>The will and codicil show clearly that the testator’s intention was to make a gift of the entire residue of his estate to the surviving residuary legatees “pro rata” “ upon the basis ” of their respective particular. legacies. It is clear that he did not limit them to a fraction of the residue merely and that he did not leave undisposed of the portion of the residue of his estate which Wilhehnina Bourdette and John F. Hoffman would have enjoyed if they had survived the testator. (Farnam v. Farnam, 53 Conn. 261; Matter of King, 200 N. Y. 189 ; Hoppock v. Tucker, 59 N. Y. 202; Martineau v. Simonson, 59 App. Div. 100 ; Matter of Kimberly, 150 N. Y. 90; Weeks v. Cornwell, 104 N. Y. 325; Matter of Logan, 131 N. Y. 456 ; Sholl v. Sholl, 5 Barb. 312.) The residuary provision in the codicil did not cut down the general residuary clause in the will. (Kerr v. Dougherty, 79 N. Y. 327; Wetmore v. Parker, 52 N. Y. 450.) There is nothing to justify the inclusion of the value of the Caroline plantation in determining the share of John F. Hoffman. (Matter of White, 125 N. Y. 544.)</p>

The nature of the action and the facts,.so far as material, are stated in the opinion. The condition subsequent attempted to be created by and in West, as trustee, and vested in him by the deed from him to Conover of May 23, 1901,. whereby a forfeiture was to be incurred unless said premises were used as specified for ten years, so 'far as the real estate in question is concerned, was absolutely void.

The facts, so far as material, are stated in the opinion. The court erred in its charge to the jury on the subject of the presumption of innocence. (Coffin v. United States, 156 U. S. 432; Seybolt v. R. R. Co., 95 N. Y. 562; United States v. Shapleigh, 54 Fed. Eep. 126; State v. Tibbetts, 35 Me. 81; Territory v. Baca, 11 N. Mex. 559; People v. Fitzgerald, 138 Cal. 139; People v. Van Houten, 38 Hun, 168; Wallace v. State, 9 Tex.

.Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 25, 1910, which affirmed a final judgment in favor of plaintiff entered upon a decision of the court at Special Term sustaining a demurrer to the answer.

The facts, so far as material, are stated in the opinion. The Lines Company is an existing corporation having lawful power to operate electric conductors in the city of New York. (Day v. O. & L. C. R. R. Co., 107 N. Y. 129; People v. U. & D. R. R. Co., 128 N. Y. 240; Matter of B., W. & N. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. It was a condition precedent to a recovery that plaintiff should prove the giving of such certificates as were called for by the contract. (Byron v. Low, 109 N. Y. 291; Sweet v. Morrison, 116 N. Y. 19 ; Nat. Cont. Co. v. H. R. W. P. Co., 170 N. Y. 439; Weeks v. O’Brien, 141 N. Y. 199; Winter v. City of Niagara Falls, 190 N. Y. 204; E. T. C. Co. v. Barde, 90 App.

The facts, so far as material, are stated in the opinion. The relator appellant as a member of the uniformed force of the police department Was entitled to a fair trial and to a decision on the evidence submitted to the trial commissioner. (People ex rel. Kasschau v. Police Comm., 155 N. Y. 44; People ex rel. Carney v. Scannel, 80 App. Div. 323.) The commissioner had no power to disregard the testimony of the witnesses Marshall and Poole adduced at the trial. (People ex rel.

The indictment against the defendant contains two counts, one for killing Selig Kohn while the accused was engaged in the commission of a felony, and the other for killing him willfully, feloniously and of malice aforethought. The case was sent to the jury on both counts. The facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered Marcli 30, 1910, which unanimously affirmed a judgment in favor of defendant entered upon an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and dismissing the complaint on the merits. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 10, 1910, reversing a determination of the Appellate Term which affirmed an order of the City Court of the city of Mew York denying a motion by the plaintiff for an order directing the issuance of an execution against ten per cent of the income of a trust fund held by the Equitable Trust Company of Mew York, which income was due, or thereafter to…

The facts, so far as material, are stated in the opinion. Bean and the reorganization committee have no interest in the proceeds of the sale of the mortgaged property, from which the claims in question are asked to he paid. They are not aggrieved, and could not maintain the appeal in the court below.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in tire first judicial department? entered June 17, 1910, which affirmed an interlocutory judgment of Special Term overruling a demurrer to a partial defense contained in the answer. The action was brought to recover several hundred dollars as the alleged value of certain baggage received and checked by defendant for plaintiff and claimed to have been lost through the negligence of the former.

<p>Appeal from a judgment of the.Appellate Division of the Supreme Court in the fourth judicial department, entered May 7, 1910, which affirmed a judgment dismissing the complaint upon the merits 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>The transfers were not lawful. (L. 1892, ch. 36, § 23 ; Code Civ. Pro. §§ 1781, 1782; Matter of Haas Co., 131 Fed. Rep. 232 ; Ward v. City Trust Co., 192 N. Y. 61; R. & C. T. R. Co. v. Paviour, 164 N. Y. 283 ; Squire v. Oudermann, 194 N. Y. 394 ; Bowers v. Male, 186 N. Y. 28.) As against creditors, Wight was the actual and absolute owner of the capital stock and was not a creditor of the corporation. (Picalora v. Gulf Co-operative Co., 68 Misc. Rep. 331; Lanning v. Trust Co., 137 App. Div. 722.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 23,1910, which affirmed an order of Special Term denying a motion by defendants for judgment upon the pleadings.. The plaintiffs entered into a written contract with the defendants by which the defendants agreed to convey to them certain real property in the city of New York.

The “Village of Delhi” is a municipal corporation. In 1897 it purchased the property and water works plant of the Delhi Water Company, and it has since owned and maintained the same for a public use.

The facts, so far as material, are stated in the opinion. The levy made by the sheriff upon the execution issued on the judgment against the plaintiff is a lieu upon this income which should have defeated this motion.

The facts, so far as material, are stated in the opinion. The complaint in the equity suit, the demurrer thereto of the Bateau Sales Company, and the decision of the court overruling the demurrer, should have been admitted in evidence, inasmuch as it formed a record of an admission by the Bateau Sales Company of all the allegations of the complaint, and such admission was proof of a complete defense to the petition for a dissolution. (Cutler v. Wright, 22 N. Y. 472; Nat.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 20, 1911, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer. The following questions were certified : “ 1. Does the complaint state facts sufficient to constitute a cause of action ? 2. Is there a defect of parties defendant apparent upon the face of the complaint ? 3.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 14,1910, which purported to modify and as modified to affirm an order of Special Term denying a motion to cause the complaint to be made more definite and certain. The nature of the action, the questions certified, and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 17, 1911, which affirmed an interlocutory judgment of the court at a Trial Term sustaining a demurrer to the complaint. The defendant railroad company owns and operates a railroad from a point in the village of Port Henry, near Lake Champlain, to the mines of the defendant ore company at Mineville, in the town of Moriah.

The nature of the action and the facts, so far as material, are stated in the opion. Held: 24 Misc. Rep. 184.)

<p>Yew York (City of) — public school teachers —■ a teacher transferred. from, a higher to a lower grade of employment cannot recover the salary of the higher grade — the remedy is a proceeding for re-instatement to the position in the higher grade.</p> <p>A teacher in the public schools in the city of Yew York who was, as is alleged, wrongfully prevented from performing the duties and receiving the salary incident to a position to which she was lawfully entitled,, and from which she was unlawfully transferred to a position’of lower grade and lesser salary, is not entitled to recover for the salary of the higher grade during such period. In such case the person claiming to have been injured by the removal must seek re-ins'tatement in a direct proceeding brought for that purpose, and the question cannot be tried in an action for salary.</p> <p>Chapter 751 of the Laws of 1900, known as the Davis Law, which directs (§ 4) that “ no female assistant to the principal in said schools shall receive less than sixteen hundred dollars per annum after ten years of service,” must be held to apply only to those persons who have been regularly appointed to the position of female assistant to the principal.</p> <p>A teacher who continued to perform the duties of general assistant after such office was abolished and the position of assistant to the principal was created, not having been appointed to the latter position, and it not appearing that the duties of the two positions were the same, cannot recover the salary attached to the position of assistant to the principal-(Johnson v. Bd. of Education of the City of Hew York, 191 Y. Y. 506, overruled.)</p>

Appeal, by permission, from a judgment entered ¡November 11, 1909, upon an order of the Appellate Division of the Supreme Oourt in the first judicial department, which affirmed, by a divided court, a determination of the Appellate Term affirming a judgment of the City Oourt of the city of-¡New York in favor of plaintiff, entered upon a verdict The nature of the action and the facts, so far as material, are stated in the opinion.

In January, 1908, Beckie Levine, one of the respondents in this proceeding, commenced an action against her husband, Hyman Levine, the appellant herein, to procure a judgment of separation.

On the 27th of June, 1906, the defendant was engaged in constructing the foundation for a large building in lower Manhattan, and the plaintiff was in its employ as the foreman of a gang of eight laborers. An excavation, called by the witnesses the “ pit,” had been made to the depth of thirty feet and a platform erected therein, fifteen feet square and twenty-five feet high, supported by posts.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not negligent. (Armstrong v. M. S. R. Co., 36 App. Div. 525 ; 165 N. Y. 641; Sims v. M. S. R. Co., 65 App. Div. 270 . Laverty v. I. S. R. Co., 49 Misc. Rep. 510 ; Spaulding v. Q. & B.S. R. Co., 184 Mass., 470; Egg v. R. R. Co., 115 App. Div. 804; Bachrach v. N. E. R. Co., 35 App. Div. 633 ; Grabenstein v. Met. St. Ry. Co., 84 N. Y. Supp. 261; McCarthy v. Met. St. Ry.

The plaintiff, as trustee in bankruptcy of the defendant, William H. Gray, brought this action to recover the value of certain wagons, carriages and other goods transferred by the said William H. Gray, individually, to himself and the defendant Mary A. Gray (who has since died), as executors of William Gray, deceased.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 26, 1910, which reversed a judgment in favor of plaintiffs entered upon a dismissal of the complaint by the court on trial at Special Term, and directed a dismissal of the complaint in an action to have adjudged void the third clause of the will of Joseph L. Heyman, deceased.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 22, 1910, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to recover certain trust funds alleged to have been wrongfully diverted.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 19, 1909, which reversed a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granted a new trial in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned by the defendant’s negligence.</p>

urt of General Sessions of the Peace in the county of New York, rendered April 27,1910, upon a verdict convicting the defendant of the crime of murder in the first degree. The motion was made upon the ground that tiie appeal had not been brought on for argument within six months of the time of taking thereof.

<p>Appeal by the plaintiff and by the defendants appellants from a j ndgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 23, 1910*, upon an order reversing a judgment of Special Term and directing judgment construing the will of Catherine Hunt Tilford, deceased.</p> <p>Catharine Hunt Tilford died September 3, 1908, leaving a will which has been duly admitted to probate. At the time of making said will and at the time of her death she had five living children, Richard Curd Tilford, Edward Alfred Til-ford, Mary Trotter Chastain, Wesley Hunt Tilford and Henry Morgan Tilford.</p> <p>Prior to making the will one son, J. B. Tilford, died, leaving two children, the defendants Keferstein and Frank Yincit Tilford. The five children named and said two grandchildren were her only heirs at law and next of kin.</p> <p>By her will she made many specific gifts and general legacies, including a legacy of $5,000 each to said defendants Keferstein and Frank Yincit Tilford. The thirteenth and fourteenth paragraphs of her will are as follows:</p> <p>“ Thirteenth. I bequeath ten thousand dollars to my trustees hereinafter named, or the survivor of them,- in trust to invest, reinvest and manage the same, collect the issues and profits thereof and pay the net income thereof quarterly to my daughter Mary Trotter Chastain during her life, and upon her death the principal shall again become a part of my residuary estate, and shall be divided equally between the devisees of said residuary estate in accordance with the terms and conditions hereinafter provided.</p> <p>“Fourteenth. I devise and bequeath all the rest, residue and remainder of my estate, real and personal, as follows:</p> <p>“ I devise and bequeath one equal fifth part thereof to my Trustees hereinafter named, or the survivor of them, in trust to enter into possession thereof, to invest, reinvest and manage the same, collect the rents, issues and profits thereof, and pay the said rents, issues and profits quarterly to my son Richard Curd Tilford during his life, and upon his death the principal shall again become a part of my residuary estate, and shall be divided equally between the remaining devisees of said residuary estate, subject to the same terms and conditions as are herein provided for the several one-fifth portions thereof.</p> <p>“ I devise and bequeath one equal fifth part thereof to my Trustees hereinafter named, or the survivor of them, in trust to enter into possession thereof, to invest, reinvest and manage the same, collect the rents, issues and profits thereof, and pay the said rents, issues and profits quarterly to my son Edward Alfred Tilford during his life, and upon his death the principal shall again become a part of my residuary estate, and shall be divided equally between the remaining devisees of said residuary estate, subject to the same terms and conditions as are herein provided for the several one-fifth portions thereof.</p> <p>“ I devise and bequeath one equal fifth part thereof to my trustees hereinafter named, or the survivor of them, in trust to enter into possession thereof, invest and reinvest and manage the same, collect the rents, issues and profits thereof and pay the said rents, issues and profits quarterly to my daughter Mary Trotter Chastain during her life and upon her death to pay the rents, issues and profits quarterly to my great grandson Hunt Tilford Dickinson, if he is living, until he is twenty-five years of age, and when he shall arrive at the age of twenty-five years my said trustees shall convey and pay over to him, the said Hunt Tilford Dickinson, the said trust estate. If, however, he shall die before he arrives at the age of twenty-five years, without lawful issue him surviving, the principal of said trust estate shall, on his death and the death of my said daughter, become again a part of my residuary estate and shall be divided equally among the devisees of my residuary estate subject to the same terms and conditions as herein provided for the several one-fifth portions thereof.</p> <p>“I devise and bequeath one equal fifth part thereof to my son Wesley Hunt Tilford and liis heirs.</p> <p>“ I devise and bequeath one equal fifth part thereof to my son Henry Morgan Tilford and his heirs.</p> <p>“ The reason I have not devised any of my estate except as above to the children of mv deceased son J. B. Tilford is, because of his wish that I should not do so, he stating that his children would inherit from him all that he desired they should have. * * *”</p> <p>This action was brought to obtain a construction of said thirteenth and fourteenth paragraphs of the will. The plaintiff claimed that all of the provisions of said paragraphs are illegal and void. Upon the trial at Special Term it was held in accordance with the contention of the plaintiff. A judgment was entered accordingly and an appeal was taken therefrom to the Appellate Division where the judgment at Special Term was reversed and said paragraphs of the will were construed. The following is that part of the j udgment construing said will:</p> <p>“ First. That the thirteenth clause of the last will and testament of Catharine Hunt Tilford, deceased, creates a valid trust in favor of the daughter of said decedent, Mary Trotter Chastain, during her life in the sum of $10,000.</p> <p>“ 'Second. That paragraph fourteenth of said last will and testament creates valid trusts in favor of said decedent’s sons Richard Curd Tilford and Edward Alfred Tilford and said decedent’s daughter Mary Trotter Chastain during their respective lives in equal one-fifth shares of the residuary estate of said decedent.</p> <p>“ Third. That the concluding words of clause one of paragraph fourteenth of said last will and testament create valid trusts. in equal sub-shares of the principal of the one-fifth share devised and bequeathed in trust to Richard Curd Til-ford in favor of said Edward Alfred Tilford and Mary Trotter Chastain for their respective lives, after the death of said Richard Curd Tilford.</p> <p>“ Fourth. That the concluding words of clause two of paragraph fourteenth of said last will and testament create valid trusts in equal sub-shares of the principal of the one-fifth share devised and bequeathed in trust to Edward Alfred Til-ford in favor of said Richard Curd Tilford and Mary Trotter Chastain for their respective lives, after the death of said Edward Alfred Tilford.</p> <p>“Fifth. That the concluding words of paragraph thirteenth of said last will and testament create valid trusts in equal sub-shares of the principal of the said sum of $10,000 devised and bequeathed in trust to said Mary Trotter Chastain in favor of said Richard Curd Tilford and Edward Alfred Tilford for their respective lives after the death of said Mary Trotter Chastain.</p> <p>“Sixth. That the said last will and testament does not dispose of the principal of any sub-share mentioned in paragraphs third, fourth and fifth hereof upon the termination of the life during which said sub-share is directed to be held in trust and upon the termination of any such life the principal of any such sub-share shall be distributed as provided by law in case of intestacy.</p> <p>“ Seventh. That the third clause of paragraph fourteenth of said last will and testament creates a valid trust of the principal of the one-fifth share devised and bequeathed in trust to said Mary Trotter Chastain in favor of said decedent’s great grandson Hunt Tilford Dickinson.</p> <p>“ Eighth. That the concluding words of the third clause of paragraph fourteenth of said last will and testament do not create valid trusts in favor of said Richard Curd Tilford and Edward Alfred Tilford and that in the event that said Hunt Tilford Dickinson shall not survive said Mary Trotter Chastain or, surviving her, shall die before attaining the age of twenty-five years, the principal of the one-fifth share devised and bequeathed in trust for said Mary Trotter Chastain and Hunt Tilford Dickinson shall upon the death of the survivor of said Mary Trotter Chastain and Hunt Til-ford Dickinson, be distributed as provided by law in case of intestacy. ”</p> <p>From the judgment of the Appellate Division the appeal is taken to this court.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 11, 1909, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and an order denying a motion for a new trial in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned by the negligence of defendant, his employer.</p>

This action was brought for an accounting and to recover damages under the provisions o f a contract, which is as follows : “Agreement made this thirtieth day of December, in the year 1899, between William S. Thomson, a resident of London, England, party of the first part, and George C. Batcheller, Ilarry D. Miller and Edward W. Russell, of the firm of Lang-don, Batcheller and Company, of the City of New York, parties of the second part: “ Whereas, the party of the first…

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 19, 1909, reversing a judgment in favor of defendant appellant entered upon a decision of the court on trial at Special Term and granting a new trial in an action for the judicial settlement of the accounts of the plaintiff trustee.</p>

<p>Appeal from a judgment entered December 18,1909, upon an ordei of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and granting a new trial and directed the reinstatement of said verdict.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 26,1909, affirming a judgment in favor of plaintiff entered upon a verdict.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 6, 1910, affirmng a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action on contract and for an accounting.

Appeal, by permission, from two orders of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 12, 1910, which reversed two orders of Special Term denying motions to vacate a judgment heretofore entered by default in an action to recover for water used for municipal purposes and granted said motions.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 22, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a chattel mortgage.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 25, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to set aside for fraud a settlement under a policy of accident insurance, to recover an amount due thereunder, and to enjoin defendant from canceling the same.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 25, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in an action to abate a nuisance and for damages.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered Jan-nary 25, 1911, which reversed an order of Special Term denying a petition for the removal of Hugo P. Keller as testamentary trustee under the will of Adolph Keller, deceased, and granted said petition.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 21, 1911, which affirmed an order of Special Term directing a compulsory reference of the issues in an action to recover for goods sold and delivered and for money had and received. The following questions were certified : “ 1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1910, which reversed an order of Special Term granting an application for a writ of certiorari and directing the issuance of a liquor tax certifícate to the relator.</p>

<p>Motion for re-argument. (See 200 N. Y. 577.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 4, 1911, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the appellant herein to permit the petitioner to examine its books and papers.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial' department, entered April 15, 1910, affirming a judgment in favor of defendant entered upon a verdict directed by the court in an action to determine the validity of a will.</p>

<p>Appeal from a judgment entered October 4, 1909, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which affirmed an order of the court at a Trial Term denying a motion for a new trial made after the direction of a verdict in an action of partition.</p>