Volume 25 — Bedell

<p>1. Mandamos — Proceeding Against an Officer of a Municipality for Enforcement of a Right, Mot Abated by Resignation or Removal of Officer. A proceeding against an officer of a municipality for the enforcement of a right of a relator against the municipality does not abate by the resignation, removal or expiration of term of the officer, hut may he enforced against his successor or successors.</p> <p>3. Same. . Where an assistant engineer in the department of bridges in the city of Mew York, appointed after passing the civil service examinations, who was suspended without pay by the commissioner of bridges, upon the ground that his services were no longer necessary, under section 1543 of the charter of the city of Mew York (L. 190l/ch. 466), procured an alternative writ of mandamus to compel his reinstatement, which, after a trial of the issues involved, was decided in his favor, and then moved the court for a final order granting a peremptory writ, the hearing of which motion was postponed from time to time for a period of. about two months, when the case was orally argued and time given for counsel to submit written briefs, during which time the commissioner of bridges resigned, and thereupon, and before any decision of the motion for a peremptory writ was made, the corporation counsel of the city, upon affidavits showing the resignation of the defendant, moved for an order declaring the proceeding abated, it is reversible error for the Special Term to quash, supersede and set aside the writ upon the ground that the proceeding had abated. The successor of such commissioner should have been substituted and the proceeding continued against him as the defendant therein.</p>

On the first of August, 1906, the relator was arrested by the respondent under a criminal warrant, which charged that “ on the 26th day of July, 1906, at the city of Hew York, in the county of Hew York, one Irving K. Farrington did sell and deliver to Donald C. Catlin certificates of stock without making any memorandum of sale and without affixing any stamp or stamps and without the payment of any tax in violation of chapter 241 of the Laws of 1905, as amended by chapter 414…

The defendant and six other persons owned forty or tifty cattle in severalty, which were being driven along a public highway toward a slaughter house. The cattle were attended by their owners and others and without negligence on the part of the attendants they escaped from the highway and crossed the lands of one B. a distance of ten or twelve rods to and upon the lands of the plaintiff, a nurseryman, and thereby did the plaintiff substantial damage.

<p>1. Municipal Corporations — Eight of Action against City fob Negligence in Care of Streets Purely Statutory and Subject to Restriction at the Pleasure of the Legislature The duty imposed upon a municipality of caring for its streets and sidewalks is not private or local, so that a liability for its breach is enforceable by a common-law action, as in the case of a private corporation, but is performed as a political agency, and is governmental. The liability may be created or not as the legislature may see fit; if created, its enforcement may be surrounded with any restrictions or conditions deemed necessary. The right to enforce it, therefore, is not a common-law right of which the owner cannot be deprived without due process of law, but is purely statutory and may be destroyed or restricted at the pleasure of the legislature.</p> <p>2. Constitutional Law—Requirement in Charter as to Written Notice of Existence of Snow or Ice on Sidewalks Constitutional. A provision in a municipal charter relieving the city from liability for injuries resulting from an accumulation of snow and ice on a sidewalk unless written notice of such accumulation is actually given to the common council, and there is a failure within a reasonable time to cause its removal, is constitutional and valid, is an essential part of a cause of action against the city for such inj uries, and compliance with its requirement as to giving the written notice specified must be alleged and proved.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 2, 1906, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the answer. The nature of the action and the facts, so far as material, are stated in the opinion. The following questions were certified : “ 1. Does the plaintiff’s complaint state facts sufficient to constitute a cause of action ? 0 2.

Appeal in the first above-entitled proceeding from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1906, which affirmed, an order of Special Term quashing an alternative writ o£ mandamus and dismissing the proceeding.

<p>Negligence, of Bailroad Conductor in Assisting Passenger to Alight from a Car at a Station. While a railroad company is under no obligation to supply the aid of servants in assisting passengers to alight from" cars at stations, yet where a conductor, as in this case, assumed to assist a passenger in so doing, and did it in such a negligent manner, by suddenly withdrawing his support, as to cause a fall, the company is liable for the resulting injury, since the passenger had the right to rely upon the conductor's careful performance of his undertaking.</p>

<p>2. Same — Damages—Effect of Section 116 of the Lien Law (L 1897, Oh. 418) upon the Contkact of Conditional Sale in Question. Provisions in the contract of conditional sale, that the title of the engine should remain in the vendors until the purchase price should be paid in full, and that upon^default in payment the vendors could retake the engine without process of law, all moneys paid to he considered as having been paid for the use or damage of the engine, must he considered as modified by section 116. of the Lien Law (L. 1897, ch. 418) which provides that personal property, retaken by a vendor under a contract of conditional sale, shall be retained for a period of thirty days, during which the vendee, or his successor in interest, may comply with the contract and thereupon receive the property, and if, at the expiration of such period, such terms are not complied with the vendor may cause the property to be sold at public auction ; and where the vendors of such engine made a demand for the same upon the owner of the real estate, which was refused, and thereupon brought an action for the full value of the engine at that time, such vendors can only recover the amount remaining unpaid on the engine at the date of such conversion thereof ; since, at that date they merely had the right to retake the engine, and for thirty days hold it subject to redemption by defendant, upon payment of the unpaid purchase price, and, to avoid circuity of action, defendant was entitled to defeat their claim for possession of the engine by paying or tendering the amount unpaid thereon.</p>

<p>Bailment—When Shopkeeper Not Liable for Loss Occurring Through Negligence^of Customer. In an action to recover for the loss of articles stolen from a retail clothing store, it appeared that the plaintiff went to a clerk engaged with another customer and was directed to go to a designated table and wait upon himself, which he did; for the purpose of trying" on the garments he desired to purchase, he laid aside, on an adjoining table, his coat and vest containing his watch, chain and cigar, cutter; no other clerk was in the immediate vicinity to watch the clothing; a number of persons were in the- store examining goods, passing and repassing; while plaintiff was engaged in trying on garments the vest and its contents were stolen. Held, that the loss occurred through his own negligence, and a recovery could not be sustained.</p>

<p>2. Same —■ Exceptions to Conclusions of Law. A' contention that the appellant in such action has no standing in the Court of Appeal s to review such judgment, for the reasons that the exceptions taken by the appellant are to the conclusions of law which were proposed by itself and found by the trial court in conformity with the appellant’s own requests, is untenable where the record fails to show that the conclusions of law were proposed by the appellant or that the trial court,found in conformity with its requests.</p> <p>3. Penal Code, Section 640d — Unconstitutional under Federal and State Constitutions (U. S. Const. Art. 1, § 10 and 14th Amendment; N. Y. State Const. Art. 1, §§ 1 and fi). Section 640d of the Penal Code (L. 1901, ch. 128), which provides that “in cities of the first and second class, any person who shall offer for sale any real property without tlie written authority of the owner of such property, * * * shall bo guilty of a misdemeanor,” is an improper and unreasonable exercise of the police powers of the state, vested in the legislature, and violative of the Federal and State Constitutions (U. S. Const, art. 1, § 10, and 14th amendment; N. Y. State Const, art. 1, §§ 1 and 6), in that it is an arbitrary infringement upon the liberty and rights of all persons who engage in selling real estate for others, with or without compensation, by making the person emplojred and- acting without written authority guilty of a misdemeanor and punishable as a criminal.</p>

<p>Appeal — Questions op Law in Criminal Gases Raised Only by Exceptions. The fact that the Appellate Division certifies that a judgment of a County Court convicting the defendant of the crime of assault in the first degree, under an indictment for manslaughter in the first degree, was reversed “upon questions of law only,” for the reason indicated in its opinion that the facts did not constitute the crime for which a conviction was had, does not enable the Court of Appeals to pass upon the question, in the absence of any exception taken upon the trial raising it; no court can create an error of law by certifying that there is one, and a question of law in a criminal case can be raised only by an 'exception; the Appellate Division itself had no power to pass upon the question and its order must be reversed and the judgment of conviction affirmed.</p>

<p>1. Real Property — Action to Restrain a Trespass—Insufficient Proof of Exclusive Ownership of Premises. The facts examined in an action against one claiming to be the owner of an undivided half interest in the premises described in the complaint and his tenant, to restrain them from trespassing thereon, the plaintiff claiming to be the sole owner and entitled to the possession thereof, and held that there was sufficient evidence to support the findings of fact upon which was based a conclusion of law “ that the plaintiff has failed to establish any exclusive right to the premises described in the complaint as against the defendants.”</p> <p>2. Remedy of Tenants in Common, a Partition Suit : of Owners in Severalty, Ejectment. Assuming without deciding that the principal parties to the action were tenants in common, the plaintiff had no authority to interfere with defendants’ tenant, its duty being to so exercise its rights as not to interfere with those of its co-tenant; if the plaintiff is a tenant in common, its remedy is a partition suit; if the owner in severalty, its remedy is ejectment.</p>

<p>• Real Property—Tax Title Paramount to Lien op Prior Mortgage — Owner Not a Proper Party in Foreclosure Action. A title resting upon a sale of land for taxes regularly conducted is paramount to the lien of a prior mortgage, and those in possession under such title are not proper parties in an action for the foreclosure of the mortgage, since they cannot he required to defend their title in an equitable action, but are entitled to have their rights passed upon by a jury in a court of law.</p>

<p>1. Banking — Rights of Bank in Commercial Paper Sent to It for Collection. When a draft is delivered to the payee for collection only, which in turn remits it to its correspondent hank for collection, the latter acquires no better title to it or its proceeds than the payee, unless it becomes a bona fide purchaser of it for value or makes advances upon it in good faith without notice of any defect in title, and the mere existence of an indebtedness of the payee to the bank does not constitute it a holder for value.</p> <p>2. Restrictive Indorsement. An indorsement in blank accompanied by a letter stating that the enclosed draft was for "collection and credit” must be read together, and the effect is to make the indorsement-restrictive and the same in character as if the contents of the letter had been incorporated in the indorsement.</p>

<p>Common Carrier — When Railroad Company Sued for Conversion of Goods Delivered to It for Transportation May Set Up Its Ownership of the Goods as a Defense." In an action against a common carrier to recover damages for the conversion of certain rails shipped over its lines, in which the defendant pleaded title to the rails and secured a verdict, assuming that the question of the availability of such a defense was raised on the trial, and that the Appellate Division had the right to consider it and reverse upon the ground that it was not available, the decision of that court must be regarded as erroneous where the defendant received the property for transportation in good faith, without knowledge that the rails were its property, and thereafter discovered that they belonged to it; and, therefore, there is no reason why it should not avail itself of such defense with the same force and effect, that it could avail itself of the right of a true owner in case of a third person.</p>

The action was brought to recover for personal injuries alleged to have been received through defendant’s negligence. The facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 15, 1906, in favor of defendant, upon the submission of a controversy under section 1279 of the Code of Civil Procedure.</p> <p>The nature of the controversy and the facts, so far as material, are stated in the opinion.</p>

Appeal, by permission, from a judgment entered August 7, 1906, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

<p>1. Real Property — Interest. In an action to redeem real property and to have deeds and other conveyances under which defendant claimed title declared mortgages and for an accounting with respect to the use and occupation of the lands, the fact that the defendant went into possession wrongfully and as a mere trespasser, does not authorize the court to dir.ect the computation of interest upon the yearly value of the use and occupation, upon the principle of annual rests, thus allowing compound interest.</p> <p>2. Trespasser Not Entitled to Credit for Improvements. The defendant being in possession as a trespasser, having wrongfully ousted and expelled the true owner, the court, in its discretion, has the power to deny him credit for any improvements he may have made upon the property.</p>

<p>Will—Equitable Conversion — Contingent Remainder. A testator directed ins executor to invest §1,500 in real estate for his niece, to he conveyed to her and held during her natural life, and after her death to the heirs of her body forever; the premises so to he purchased ho gave, devised and bequeathed to the said niece during her natural life, and after her death “to the right heirs of her body forever;” the remainder of his estate he devised to his brother and his heirs forever; the testator died in 1885; the brother died intestate in 1893, leaving two sons, his only heirs at law; the niece died intestate in 1903¡ without issue, leaving a brother and sister her only heirs at law; at the time of her death the §1,500 had not been invested as directed, but remained in the hands of a trustee appointed to succeed testator’s executor. Held, that the testator having died before the enactment of the Real Property Law (L. 1896, ch. 547) the will must be' interpreted according to the provisions of the Revised Statutes (1 R. S. 733, § 3; 735, § 38; 748, § 3); that the direction to invest operated as an equitable conversion of the fund into real property, and that it should be disposed of as if the investment had in fact been made; that the intent of the testator was to give his niece a life estate only in the real property to be purchased with said fund;'that upon her death the title thereto vested in the heirs at law of testator’s brother, and not in the heirs at law of testator’s niece.</p>

<p>1. Insane — Appointment of Committee for Insane Life Convict. Under the provisions of chapter 401 of the Laws of 1889 the Supreme Court has jurisdiction, upon the application of the persons mentioned -therein, to entertain proceedings and direct the appointment of a committee of the estate of a life convict, although the convict before the commencement of the proceedings had become insane and had been transferred to a state hospital for insane convicts; the statute was intended to embrace all cases in which a judgment of life imprisonment had been pronounced, whether the convict should thereafter become insane or no.t and was not repealed by the enactment in 1895 of section 2828a of the Code of Civil Procedure, providing for the appointment of a committee upon the application of a state officer having special jurisdiction over the institution or by the superintendent thereof, “ where an incompetent person has been committed to a state institution in any manner provided by law and is an inmate thereof.”</p> <p>2. Appointment of Committee Cannot Be Attacked Collaterally in Action to Recover Convict’s Estate. Objections that the petition for the appointment of the committee failed to state the age of the petitioner or of any other parties, or whether they or any of them were incompetent cannot be raised by demurrer in an action by the committee to recover the convict’s estate, the proceedings having been in a court of general jurisdiction and therefore are not open to a collateral attack in such an action.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered Jauuary 11, 1906, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>1. Tax—Rochester (City of)—When City, in Action to Foreclose Tax Lien for Certain Tax, Cannot Recover Deficiency Judgment for Other Unpaid Taxes on Same Property. In an action brought by the city of Rochester, under its charter (L. 1861, ch. 143, as amd. by L. 1880, ch. 14, and L. 1897, ch. 784), to foreclose the equity of redemption in certain premises upon which a tax had been regularly assessed and- the property duly sold for the non-payment of such tax, the city cannot, under an allegation in its complaint setting forth a general description of other taxes due from the taxpayer whose property was so sold, recover a deficiency judgment for tire aggregate amount of such unpaid taxes, with interest, where there is no allegation that any steps bad been taken to collect the same, and the charter contains, among its provisions for the sale of property for taxes and the redemption thereof, no provision which authorizes a judgment for a deficiency for uncollected taxes, where no steps have been taken, under the provisions of the charter, for the collection thereof.</p> <p>2. Same—Failure to Comply with Charter Provisions 'for Collection oe Taxes—When Such Failure Not Cured by Statute (L. 1903, Ch. 522) and Judgment for Deficiency Authorized Thereby. The city pot relieved from the necessity of complying with the provisions of its charter regulating the collection of taxes, as a condition precedent for a deficiency judgment for such unpaid taxes, by the curative, statute relating to the collection of taxes (L. 1903, ch. 522), which provides, in substance, that all taxes heretofore spread upon the assessment rolls of such city may be collected either by action or by supplementary proceedings, or by foreclosure of tax liens, and that such remedies shall be in addition to the other methods provided in the charter for the collection of taxes, and not dependent upon them, or any of them, since such curative act, as heretofore construed and limited, does not authorize the foreclosure of all tax liens without compliance with the provisions of the charter, but merely validates certain taxes void for specified omissions in the method of assessing and levying the same, notwithstanding such omissions, and authorizes the foreclosure of such taxes upon that changed condition of affaire.</p>

<p>2. Elevated Railroad—Denial of Mandatory Injunction Compelling Removal of Track. In an action commenced in 1902 by an abutting owner against an elevated railway company for a mandatory i junction compelling it to remove a track erected without legislative authority or municipal consent over and above the center of Ninth avenue in the city of New York, between two other tracks previously erected and operated by the defendant and its predecessors, in which the plaintiff asserted his absolute right to the removal of the track, it appeared that the defendant, in good faith and relying' upon certain acts of the legislature thereafter held invalid, had in 1894 constructed the track; that the plaintiff had knowledge that it was being constructed, and ever since has been familiar with its use and effect; that the third track is a great public utility and benefit; that the injury suffered by the plaintiff, if any, is small compared with the injury and inconvenience to the defendant and public if the defendant is compelled to remove the same; that its removal would seriously impair the train service and increase the danger of operation; that the payment to the plaintiff of just compensation would he a remedy as adequate as would be the removal of the track. KM, that the trial court, in the exercise of its discretion, properly denied a mandatory injunction; that the award of a money judgment conditioned upon the conveyance by plaintiff to the defendant of the easements appropriated for the use of the track was proper; that although the defendant is in no situation to institute condemnation pioceedings to acquire property rights, it may he regarded as a corporation acting in good faith and serving the public for a long series of years without interference, and hence is justified in acquiring easements by entering into contracts with abutting owners; that plaintiff having resorted to a court of equity must abide by the result or bring an action for damages in a court of law.</p>

<p>1. Transfer Tax — Rate Not Affected by Assignment of Legacy. A succession tax is measured by the legal relation which the legatee bears to the testator, and is not affected by the relation which an assignee of the legatee bears to him.</p> <p>3. Same. Legacies to nephews and nieces, assigned by them to testator’s widow for a valuable consideration and in settlement of a contest of the will instituted by her, pass, not under the will, but by virtue of the assignment; the widow takes them as assignee, not as legatee; they are taxable, therefore, under the Transfer Tax Act (L. 1896, ch. 908, §§ 330-343) at the rate of five per cent, as in the case of a bequest to nephews and nieces; not at the rate of one per cent, as in the case of a bequest to a widow.</p> <p>8. Legacy to Child of Adopted Daughter. A legacy to the son of an adopted daughter is taxable at the same rate as if his mother had been the natural child of the testator, i. e., one percent; since the Domestic Relations Law, relating to the effect of the adoption of children (L. 1896, ch. 373, § 64), gives to an adopted child the same legal relation to the foster parent as a child of his body, and that relation extends to the heirs and next of kin of the child by adoption the same as to those of a child by nature.</p> <p>4. Construction of Phrase “Lineal Descendant” — Tax Law (L. 1896, Ch. 908), § 331. The fact that the statute dealing with exemptions from the succession tax (Tax Law [L. 1896, ch 908], § 331), while it exempts adopted children to the same extent as natural children, does not • mention their heirs and next of kin, and, in describing the exempt ■class, makes use of the phrase “ or any lineal descendant of such decedent,” does not deprive the heirs and next of kin of adopted children of the benefit of the exemption, since the words' “lineal descendant” must be read in connection with the statute governing the effect of adoption, which makes the child by adoption and his heirs the same in every respect, affecting inheritance or succession, as an actual child and his heirs.. In the eye of the law, therefore, adopted children are lineal descendants of their foster parent. They are in the line of descent from him through the command of the statute, the same as if that line had been established by nature. The legislature created the relation and extended to it the right of inheritance, not only as between the foster parent and the adopted child, but also as between the children of the adopted child and the foster parent.</p>

<p>1. Amendment—Changing Designation of Defendant from Representative to Individual Capacity Does Not Effect a Change of Parties — Statute of Limitations. The Supreme Court has power, under section 723 of the Code of Civil Procedure, to permit the amendment of the summons and complaint in an action of negligence by changing the designation of the defendant from trustee to-that of an individual. The effect of the amendment is not tantamount- to bringing in a new party, so as to enable it to plead the Statute of Limitations as a bar to its liability, more than three years having elapsed between the time of the accident and the date of the service of the amended summons and complaint, but merely changes the capacity in which the defendant is sought to be charged.</p> <p>2. Negligence — Injuries Received by Plaintiff While Examining Unfinished Building at Invitation of Defendants. The facts examined, in an action brought to recover for injuries received by the plaintiff, by falling through an open and unguarded stairway in a dark place, while examining an unfinished building, for the purpose of renting apartments therein, at the invitation of defendants and accompanied by their agent, and held, sufficient to sustain a verdict for plaintiff.</p>

_ Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 29, 1906, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the appellant herein to deliver to the petitioner orders for the publication of certain notices of sale of land for nonpayment of taxes and notices of redemption of lands previously sold.

<p>'Attorney and Client — Lien for Services in Procuring Payment to Beneficiary of Income of Trust Fund Established for His Support and Education—Code Civ. Pro. § 66. The income from a trust fund directed to be paid over to the beneficiary for the support and education of the beneficiary and his family, although exempt from the claims of general creditors so far as it is required for his support, is not exempt from a claim for necessary services rendered by an attorney employed by him to compel a trustee refusing to do so, to pay over the income necessary for his support, and who, for that purpose, has instituted proceedings in a Surrogate's Court; under section 66 of the Code of Civil Procedure such attorney has a lien for the reasonable value of his services in procuring the amount of income withheld, but not for services rendered in and about the estate for other relief.</p>

Appeal, by permission,1 from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 28, 1906, which affirmed an order of Special Term directing the receivers of the defendant to pay interest upon the claims of creditors. The following questions were certified: 111.

Appeal, by permission, from an order of the Appellate Division of tlie Supreme Court in tlie fourth judicial department, entered December 10,1906, which reversed an order of 7 7 7 Special Term sustaining objections to the sufficiency of a petition in condemnation proceedings.

Also appeal, by permission, from an order of said Appellate Division, entered July 24, 1906, which reversed an order of Special Term in so far as it stayed a sale under the judgment of foreclosure.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 9, 1906, affirming a judgment in favor of plaintiff entered upon a decision' of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material^ are stated in the opinion.</p>

<p>Appeal — Judgment or Appellate Division Rendered in Criminal Action Originating in Court or Special Sessions Not Reviewable. The Court of Appeals has no jurisdiction to hear an appeal from a judgment rendered by the Appellate Division affirming a judgment of a County Court modifying and affirming a judgment of a Courtof Special Sessions convicting the defendant of the crime of petit larceny. (Code Crim. Pro. §§ 699-772.) -</p>

The complaint sets forth a cause of action' to recover from the defendant the sum of seventy-five dollars as a penalty for violating section 156 of the Forest, Fish and Game Law by fishing in Golley brook, a tributary of Canada creek, in the town of Lee, county of Oneida. The answer is a general denial. At the trial, after both parties had rested, the court granted a nonsuit, the Appellate Division subsequently affirmed and the plaintiff now appeals to this court.

<p>Election Law—Borough of Manhattan — Publication of List of Registration and Polling Places in Party Newspapers—Test Prescribed by Statute in the Selection and Appointment of Such Newspapers. The Election Law (L. 1896, ch. 909, § 10, as amd. by L. 1906, ch. 259) which provides that, in the borough of Manhattan, the hoard of elections shall publish a list of the registration and polling places in such borough in four newspapers advocating the principles of tlie party polling the highest number, of votes at the last preceding election for governor, and also in four other newspapers advocating the principles of the political party polling the next highest number of votes, prescribes no test, in the selection and .appointment of newspapers to publish the list, except that they shall advocate the principles of such parties; the courts have no power, therefore, to grant a peremptory writ of mandamus requiring the board of elections to publish the list in four newspapers which support the candidates nominated, and the platform adopted, at a certain convention held hy one of the parties designated in the statute; and an order of the Appellate Division reversing an order of the Special Term granting such a writ, and directing that a mandamus issue requiring the board to publish the list in four newspapers which advocate the principles of such party is correct and should he affirmed.</p>

<p>Appeal from a judgment of the Appellate Division of the ,, Supreme Court in the second judicial department, entered March 11, 1906, affirming a judgment in favor of plaintiff entered upon a verdict 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>Negligence — Highways — When Village Not Liable for Injury to a Horse Caused by His Stepping upon a Loose Stone in Highway. AVhile an incorporated village is bound to exercise such reasonable care and diligence in repairing the highways within its corporate limits, and in removing loose stones therefrom, as may he required by the location and the extent of the use of sueli highways, a village, having many miles of streets and highways -within its limits, is not liable for an injury to a horse, ns the result of stepping upon a loose stone, in a rarely used road running through an unsettled part of the village and over a steep hill, subjected not only to .the washing of surface waters, but to the dragging upon it of the “ rough-locked ” wheels of descending vehicles, whereby the surface of the road was torn up and deep ruts formed, where there is no evidence that the village was maintaining a nuisance or had created by its positive act, or had permitted to continue, a place of danger in the highway from which the injury might have resulted. The village was not bound to use such care and skill as to render accidents impossible upon its ways or streets; the active vigilance, which is due from it with respect to their maintenance in a fairly safe condition, is a relative term, and to hold the village responsible for the occurrence of the accident in question would he to make of it an insurer against accidents as to all persons using the way.</p>

<p>Master and Servant — When Employee Is Rot a Superintendent Within Meaning of Employers’ Liability Act (L. 1902, Oh. 600) — Master Rot Liable for Injuries Caused to Servant by Regligence or Error in Judgment of Co-servant. Where it appears, in an action brought to recover for the death of plaintiff's intestate caused by the breaking of a defective ladder negligently selected for decedent to work upon by an alleged superintendent of the defendant, that the decedent was in the service of the defendant as a helper to a steamfitter, or plumber, also working for the defendant; that the latter was employed by the defendant solely as a steamfitter, or plumber, and had been occupied as such during the entire time that he had been in the defendant’s service; that the steamfitter had no power to hire or discharge the helper, who was employed by the defendant and directed to serve as a helper to the steamfitter; that they worked together as laborers, doing the same class of work, one as the mechanic, fitting or repairing steam pipes, the other assisting him in that work, the relation between them was merely that of co-employees; and, notwithstanding the fact that it was the helper’s duty to obey the directions o£ the steamfitter with reference to their work, the steamfitter did not occupy the position of, and had never been intrusted with, the powers of a superintendent within the meaning of the Employers’ Liability Act (L. 1902, ch. 600). The defendant is not liable, therefore, for the negligence, or error in judgment, of the steamfitter in selecting, for the helper to work upon, an old and defective ladder, which broke and caused the helper to fall, whereby he received in j u ríes from which he died, when there were numerous other ladders upon the-premises from which a safe and suitable ladder could have been selected.</p>

On the 16th day of January, 1882, on the application of Eobert C. Bradshaw, the defendant issued to him a policy of insurance on his life, by which, in consideration of said application and of the statements made therein, and of the pre'miums specified in said policy, the defendant promised to pay “Unto Corrie J. Bradshaw, wife of Eobert C. Bradshaw, of Jamestown, in the county of Chautauqua, state óf Hew York, for her sole use, if living, in conformity with the statute, and…

Burdick, deceased, is null and void, and that no trust powers or powers in trust or powers of management were bestowed or authorized by said will upon the executors as executors, trustees or otherwise, and further adjudging that said executors pay over to Alice II. Burdick, as guardian of her three infant daughters, the balance of funds remaining in their hands belonging to said infants amounting to $32,381.23.

<p>New York Fire Department—Remedy op Retired Member Aggrieved by Action op Commissioner in Fixing Pension Is by Direct Proceeding Not by Action'—Burden op Proof. A recovery-in an action by a retired, fireman of the city of New York to recover arrears claimed to be due on his pension by reason of an alleged unlawful determination of the fire commissioner as to its amount (L. 1901, ch. 466, § 790), even if the action were maintainable, could not be sustained, where the plaintiff fails to meet the burden imposed upon him of proving that the commissioner had violated his duty in fixing the amount of the pension; such action, however, is not maintainable; the remedy of any member of the department aggrieved by the action of the commissioner in determining his pension is to correct that determination by a direct proceeding, such as mandamus, not by action.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 9, 1905, affirming a judgment of the Broome County Court, which affirmed a judgment in favor of plaintiff entered upon a judgment of the City Court of Binghamton. The nature of the action and the facts, so far as material, and the question certified, are stated in the opinion.

<p>Negligence—Death Caused by Falling prom Elevator — Erroneous Nonsuit. The facts examined in an action to recover for the ’ death of plaintiff’s intestate, who was killed while delivering goods to the defendant in its department store by failing from an elevator through a space between it and the wall, and held, that a nonsuit was erroneously granted where, considering'both the evidence received and that improperly</p> <p>excluded, questions of fact were presented as to whether decedent could or ought to have seen the opening, and whether the defendant was negligent in maintaining the elevator with a space large enough for a man to fall through and in permitting it to he used by persons delivering freight.</p>

<p>1. Negligence — Liability of Master. Mere proof that an accident has happened is not evidence of a master’s negligence; he is not an insurer and is only liable for the exercise of reasonable care and prudence.</p> <p>3. Insufficient Proof of Negligence. Where the only issue is whether a master has failed to perform his legal duty to provide for his servant a reasonably safe and proper place to work, evidence that the servant was killed l)y the fall of an iron shutter upon one of the master’s vessels, is not sufficient to establish the master’s liability for damages, in the absence of proof of some affirmative act or omission constituting negligence on the part of the master, and showing that the servant was free from contributory negligence.</p>

<p>Common Carriers — Action for Assault upon Passenger by Employees of Street Railway Company — When Allegations of Complaint Therein Constitute Cause of Action for Breach of Defendant’s Contract to Carry Passenger Safely. Where it is alleged, in an action brought against a street railwa3' company, that the plaintiff became a passenger of the defendant for the purpose of being carried upon one of its cars; that, in consideration of the required fare duly paid by the plaintiff, the defendant agreed to carry him' safely and treat him properly, and that, in violation of such contract, the defendant, through its agents and employees, wrongfully and illegally maltreated and assaulted the plaintiff, the complaint states facts which constitute a cause of action for a breach of a contract between the defendant and the plaintiff, and not a cause of action for a tort, and it is no bar or answer to such cause of action that an action for tort might'have been, and ordinarily would he, brought for the acts of which the plaintiff complained; the Municipal Court of the city of New York has, therefore, jurisdiction of the action; and where a judgment for plaintiff, entered upon the verdict of a jury, has been unanimously affirmed by the Appellate Division, it must be assumed that there was evidence to support tire verdict, and, in the absence of some objection thereto, it also may be presumed that such evidence was in accordance with, and in support of, the allegations of the complaint.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court ip the first judicial department, entered January 9, 1900, affirming a judgment in favor of plaintiff 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>1. Will — When Absolute Gift Is Out Down to Life Estate, with Absolute Remainder to Devisee’s Wife and Ohildren. A testamentary provision dividing an estate equally between testatrix’s brother and three others, share and share alike, is modified by an immediately succeeding clause, directing that the share due her brother be invested by her executors “ for his benefit during his natural life and for the benefit of his wife and Ids issue after his death,” so that an apparently absolute gift of such share is cut down to a life estate therein; and such clause creates a valid express trust to collect the rents and profits for his benefit during his lifetime with an absolute remainder to his wife and children.</p> <p>2. Designation of Trustees as “Executors” Does Not Invalidate Trust Provisions — When Direction to Invest Trust “for Benefit ” of Cestui Que Trust Implies Collection of Rents and Profits and Payment Thereof to Beneficiary. The fact that the trust created by such clause is imposed upon persons who are designated as executors rather than as trustees, does not invalidate the trust, since the duties imposed upon a person rather than the name applied to him in a will measure his office and position, and the duties of trustees having been imposed upon such executors, they must be regarded as trustees rather than as executors; nor does the fact that there is no explicit direction that the rents and profits of the brother’s share shall be collected and paid over to him as a life tenant prevent the execution of the trust in that way, where it is directed that his share shall be invested for his benefit during his natural life and there is no other possible way in which such direction can be carried out, since such direction necessarily implies that the principal shall be kept intact and no power is given him to dispose of such share by will or otherwise.</p> <p>3. When Trust Not Void as Suspending Power of Alienation. The direction that the investment of the trust should be, after the death of her brother, “for the benefit” of his “wife and issue after his death,” does not, under the liberal construction of the will required by law, violate the statutes relating to the suspension of the power of alienation, in that it requires the investment to be kept and the trust continued after the death of her brother for the benefit of his wife and children, where there is no provision, either by express terms or necessary implication, that a trust was intended for their benefit rather than a final and absolute distribution of the share.</p>

<p>1. Will — Bequest to Hospital under Erroneous Name — When Beneficiary Sufficiently Designated to Enable It to Take Gift. Where a testator devised all of his real estate to his executors in trust to sell and dispose of the same and to divide the net proceeds of such sale and give “ Three equal fourth parts thereof to the trustees of St. Francis Hospital in the city of New York for,the benefit and use of the Blessed Virgin Mary purgatorial fund of said hospital,” such provision is not invalid because there was at that time in the city of New York no hospital of that name, where it appears that there was a hospital building and grounds known to the public as St. Francis Hospital which was owned and conducted by a society incorporated under the name of “ The Sisters of the Poor of St. Francis” for “the gratuitous care of the sick, aged, infirm and poor ” under a statute (L. 1866, ch. 201) which further provided that “ no misnomer of said corporation shall defeat any gift, grant or devise provided the intent shall sufficiently appear that any estate or interest was made to be vested in said corporation,” and it is found as a fact by the trial court and conceded upon the- argument of this appeal that the testator intended that his devise should be paid over to the trustees of that corporation.</p> <p>2. Same—When Gift to Charitable Association to Be Added to Fund for Certain Purpose, Not Maintained by Association, Is Vai.id and May Be Administered by Association. A contention that the gift was void for the reason that the sisters had never maintained in the hospital a “ Blessed Virgin Mary purgatorial fund; ” that the only possible ob-ect of such a fund was the saying of masses for the spiritual welfare of the souls of the dead in purgatory, and that the sisters, as such corporation, had no power to act as trustees for such a fund or purpose, and that it was not for a corporate purpose, is untenable. No trust is created by the will so far as the bequest to the sisters is concerned; there is a devise of real estate to the executors, in trust, coupled with an imperative power of sale, for the purpose of converting the fealty into personalty, three-fourths of which is to be given by the executors to the sisters corporation; there is no gift tp that corporation in trust for any purpose or for the benefit of any person in being; in terms, it is an absolute gift, and testator’s statement, that, it is “ for the benefit and use of the * * * purgatorial fund of said hospital,” does not indicate an intention, on his part, to cut down the gift or deprive the sisters of the control thereof; it merely indicates a purpose, thus making the gift his primary object and</p> <p>the use to be made of it his secondary purpose; and while there is no fund for the purpose indicated by testator, as he believed, the sisters corporation is a charitable organization, for “ the gratuitous care of the sick, aged, infirm and poor,” composed of, and conducted by, sisters of a religious society, so that the use to which testator desired the gift to be devoted is consistent with the object and purpose of the corporation, is included in the powers given to it, and is, therefore, valid.</p>

On the 6tli day of February, 1883, Samuel Willets died a resident of this state, leaving a will and two codicils, which were duly admitted to probate on the 26tli day of February, 1883,v and by which the testator disposed of a very large estate to many different persons and institutions in various amounts, directly or in trust.

<p>Trusts—When Testamentary Fund Invested in Securities at a Premium Must Be Kept Intact by Deduction of Interest. Where trust funds are invested by a testamentary trustee in bonds having a term of years to run and purchased at a premium, in the absence of a clear direction in the will to the contrary, such a proportionate deduction should be made from the nomirial interest as will, at the maturity of the bonds, make good the premiums paid and thus preserve the principal of the fund intact; a surrogate's decree, therefore, in a proceeding settling the trustee’s accounts awarding to a life tenant as income the whole amount of the interest coupons is erroneous.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 23, 1905, which modified and affirmed as modified an interlocutory judgment of an Equity Term construing the will of John Frick, deceased. The following questions were certified: “ 1. Do the surrogate’s decrees of 1886, 1896 and 1898, or any of them, constitute a bar to the plaintiffs’ cause of action ? “ 2.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 24, 1905, reversing a judgment in favor of plaintiff entered upon the decision of the court at a Trial Term without a jury and granting a new trial in an action to recover an amount claimed as a legacy under the will of James R. Park, deceased.</p>

<p>Appeal from ai judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 14, 1906, 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 caused by defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 2, 1906, which reversed 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 and granted a new "trial in an action to recover for the death of plaintiffs intestate alleged to have been caused by defendant’s negligence.</p>