Volume 54 — New York State Reporter

<p>1. Will—Construction—Vested estate.</p> <p>Testator, by his will, devised certain real property to the use of his wife “ during her life,” and directed that at her death it be sold, and the proceeds divided between his children. Held, that the children took a vested remainder in said property.</p> <p>"2. Executors and administrators—Accounting.</p> <p>Testator provided that his executor should set apart a fund for an annuity for his widow, and the money for the fund was contributed by his children. Held, that the executor, as such, is not required to account for the fund.</p> <p>S. Same.</p> <p>Testator devised certain real property to his wife for life, and directed that at her death it be sold, and the proceeds divided among his children. The executor sold the property during the widow’s life-time, the children joining in the conveyance, and invested the proceeds for her benefit. Held, that on the death of the widow the executor must account for the proceeds of the sale as personal property.</p>

<p>Appeal by defendant Aaron Brooks from order denying his motion to vacate the judgment entered herein and all proceedings thereon.</p>

<p>Attachment—Fbaudulent disposal oe goods.</p> <p>Proof that defendant at various times while purchasing goods represented himself as doing a good business; that his profits ought not to be less-than one-third, and that he had not had any loss for a long time, and that within three weeks after making such statement he called a meeting of creditors and his attorney stated that he was only able to pay twenty-five per cent, of his debts, is sufficient to sustain plaintiff’s right to an attachment on the ground that defendant had assigned, disposed of or secreted his goods, or was about to do so, with intent to defraud his creditors.</p>

<p>Contract—Agreement eor increased compensation—Evidence.</p> <p>In an action on a contract for excavation at an agreed price, proof that after the work was commenced it was found more difficult than was supposed, resting alone on the testimony of the parties interested in increasing the pay, and disputed by a preponderance of testimony of disinterested parties, coupled with the fact that opportunity existed for examination of the character of the soil to be removed, which was availed of, is insufficient to make out a case for relief based upon mutual mistake, and cannot furnish a consideration for a promise to pay an additional sum for the work; and hence evidence of such a promise is inadmissible.</p>

<p>1. Municipal corporations—Ordinances.</p> <p>A provision of a city charter authorizing the common council to enact ordinances “to prohibit or regulate the use of locomotive engines and of steam, and to regulate other motive power and speed on any portion of any railroad within the city,” confers power on that body to pass ordinances restraining the rate of speed.</p> <p>3. Same—Railroads—Discrimination.</p> <p>An ordinance restricting the rate of speed of trains crossing the city streets, except “passenger trains running on the Belt Line” of the IT. Y. 0. & H. R. R. R. Co., is not invalid as discriminating against other roads; it appearing that such Belt Line was not a separate corporation, but only a train of the Central road doing only a local passenger traffic, and intended to furnish rapid transit.</p> <p>3. Same—Penalty—Defense.</p> <p>It is no defense to an action for a penalty under said ordinance that the acts complained of were done by a servant of the company without its knowledge or consent, and against its express orders.</p> <p>4. Appeal—Modification of judgment.</p> <p>Where the trial court gave judgment for penalties for two violations of the ordinance, as to one of which there was no evidence, the appellate court may modify the judgment by reducing the recovery so as to include but one penalty.</p>

<p>Appeal from judgment of the municipal court of Buffalo, in favor of plaintiff.</p>

<p>1. Brokers—False representations as to value op land.</p> <p>If a broker induces liis principal to exchange lands by means of fraudulent representations'as to the value of the land to be taken, he is liable to his principal for the damages thereby sustained.</p> <p>2. Same—Commissions.</p> <p>In such case the broker is not entitled to commissions, and if the same have been paid in ignorance of the fraud, they may be recovered.</p>

<p>1. Divorce—Alimony.</p> <p>Although the existence of the marital relation is denied hy the defendant, an order requiring him to pay alimony will not be disturbed where the evidence is such that, if the question were submitted to a jury, their finding of the existence of such relation would be sustained.</p> <p>2. Same—-Objectionable evidence.</p> <p>An order for the payment of alimony will not be disturbed on account of the admission of objectionable evidence, where there is sufficient other evidence to support it.</p>

<p>1. Assignment for creditors—Preferences.</p> <p>The statute of 1887, prohibiting preferences by a debtor to an amount greater than one-third of his property, does not apply when no general assignment is made or contemplated.</p> <p>2. Same—What constitutes an assignment.</p> <p>To constitute a general assignment within the statute, the instrument must include all the debtor’s property, and the assignee must be a trustee, and not the absolute owner, mortgagee or pledgee of the property.</p> <p>3. Debtor and Creditor-Pledge.</p> <p>A mortgage, pledge or bill of sale to a creditor, with the intent only to secure him to the amount of his lawful demand, not followed by a general assignment, is not invalid because the creditor thereby obtains in payment or security a sum greater than one-third of the debtor's property.</p>

<p>Will—Construction—“ Children."</p> <p>Testator left surviving a widow, a son and two daughters. By his will he gave certain real estate to his executors in trust for the widow for life, with a power of sale, the property or its proceeds to fall into the residue on her death, and the residue of the estate to sell and invest a portion of the proceeds for the benefit of the widow, and divide the balance and the widow’s fund at her death into three parts and pay tire income of one of such parts to each of his children for life. It then provided that if either of his children should dio leaving issue the capital of the share held in trust for the parent should be paid to such issue; and if either should die leaving no issue, the capital of the share held in trust for said child should be paid to the surviving children. Both the daughters died before the widow, one leaving issue, and the other none. Held, that the words “ capital of the share held for the use of the one so dying ” referred to the one third part of the entire estate; and the word “ children ” was used in its primary sense of offspring in the first degree; that the children of the daughter who left issue are entitled to their parent’s share, but take no part of the share of the other daughter.</p>

<p>Appeal from order denying motion to strike out a portion of the amended complaint as irrelevant.</p> <p>The facts are as follows:</p> <p>On September 18. 1884, Nelson Beardsley, this defendant, purchased of Arthur M. Gaylord, the husband of this plaintiff, a mortgage on real estate in the county of Cayuga for $4,784, and agreed to pay the full face value of the same with interest on the date of said mortgage. At the time of said purchase over $5,000, including interest, was due upon the mortgage and unpaid. Beardsley agreed to pay the same in cash, but obtained some little time in which to do so. He, in fact, paid only between the 18th day of September, 1884, and the 29th day of October, 1884, inclusive at different times, the sum of §1,450 in cash. On the 29tTTday of October, 1884, he agreed to apply the sum of §1,035, which he was then owing on the purchase price of said mortgage,to pay and cancel a bond and mortgage which he then held against said Gay-lord and wife, upon which there was then due, principal and interest, the sum of §1,035. Defendant having refused afterwards to perform his agreement and cancel the mortgage, an action was brought against him in the supreme court by Eleanor D. Gaylord to compel the cancellation of said mortgage of §1,035, claiming that the same had been paid by the said application of part of the purchase price of the §1,784 mortgage, and in which action said mortgage was afterwards cancelled by the adjudication of the court. Previous to the adjudication of the court, compelling the cancellation of the $1,035 mortgage, the defendant, Beardsley, had brought an action in the supreme court on the bond accompanying said mortgage against Arthur M. Gaylord and Eleanor D. Gay-lord as defendants. They answered in said action, setting up that said bond and mortgage had been paid. That action was tried in the supreme court and a verdict and judgment was found and entered on the part of the defendants in said action against said Beardsley, adjudicating said bond and mortgage to have been paid by the purchase by Beardsley of the $4,784 mortgage and the agreement to apply §1,035 of the same to extinguish the mortgage and bond of §1,035, which judgment is unreversed. Arthur M. Gaylord assigned the claim for the balance of the moneys due on the sale to the defendant of the §4,784 mortgage to his mother-in-law, Ann C. Bradburn, who commenced an action against said Beardsley to recover the same. During the pendency of said action said Ann C. Brad-burn died, and Eleanor D. Gaylord was appointed her administratrix. The action so brought by Ann 0. Bradburn was revived and continued by an order of the court in the name of the present plaintiff. The complaint in said action was thereupon amended setting up the original cause of action, the death of said Ann G. Bradburn, revivor and continuance of said action in the name of Eleanor D. Gaylord as her administratrix, and also setting up in the eleventh paragraph the facts in regard to the adjudication in the case of Beardsley against Eleanor D. Gaylord and Arthur M. Gaylord. The defendant Beardsley moved to strike out the eleventh paragraph of the amended complaint upon the sole ground that the same is irrelevant.</p>

<p>Master and servant—Negligence.</p> <p>While plaintiff was at work for defendant, on the top of a framework of timber, one of the cross timbers, on which rested the plank on which he was standing, broke, and he was thrown to the ground and injured. It appeared that this timber had knots near the top and bottom, and the break extended from one to the other. There was evidence on the part of defendant tending to show previous use of the timber, but it failed to show that it had been used in the same place or manner as when it broke. Held, that the case was properly submitted to the jury, and that their finding in favor of plaintiff should not be disturbed.</p>

<p>Sale—Acceptance.</p> <p>In an action for the purchase price of certain mantels alleged to have heen sold and delivered by plaintiS’s assignor to defendant, it appeared that they were not according to the order, but were allowed to be put up for defendant to see how they looked. Plaintiff's evidence tended to show that after they were rejected defendant’s wife refused to allow them to be removed; that defendant ordered plaintiff's agent to remove them, and that his wife again refused to permit it to be done. Defendant’s wife testified that said agent never visited the house but once, and then did not demand the mantels; that she was sick and directed him to see her husband. On removing from the house defendant took the mantels and had them put up in the house to which he removed. Held,, that upon this evidence the court properly found that there was no acceptance, nor any demand and refusal.</p> <p>(White, J., dissents.)</p>

<p>Bailment—Death of hired horse excuses failure to return.</p> <p>Performance of a condition in a contract of hiring of a horse that he shall be returned on one day’s notice in the same condition as received is excused by the death of the horse from natural causes, without fault on the part of the hirer.</p>

The will was as follows : First. I will and direct that all my just debts and funeral expenses be paid by my executors so soon as conveniently may be done after my decease. Second. I give and bequeath to my dearly beloved wife, Matilda Anne Withers, all my wines, liquors and family stores which may be in the possession and use of myself and my family at the time of my decease forever. Third.

Action to recover $400 damages for inj uries to plaintiff’s horse, sustained through being negligently run down by one of defendant’s cable cars.

<p>Costs—Extra allowance.</p> <p>An additional allowance cannot he awarded to a party in whose favor no costs can he taxed.</p>

<p>1. Corporations—Liability of stockholders for debts.</p> <p>One who has disposed of his stock in a corporation is not liable under § 57 of chap. 564, Laws 1890, on a note executed by the corporation while he was a stockholder, but which was not negotiated until after he had ceased to be such.</p> <p>2. Same.</p> <p>It is immaterial in such case that the note bears date as of the time of its execution, and that the plaintiff is a Iona fide purchaser thereof.</p> <p>:8. Same—Estoppel.</p> <p>The fact that the defendant signed the note as treasurer of the corporation does not estop him from denying his liability as a stockholder by showing the true time of the creation of the debt and that at such time he was not a stockholder.</p> <p>(Hatch, J., dissents.)</p>

<p>Master and servant—Negligence—Assumption oe risk.</p> <p>Plaintiff, while at work examining the bearings of an engine which was being erected by defendant, and standing upon a step between it and a large fly-wheel, slipped upon some oil which the machinery had thrown on the step and was thrown upon the wheel and injured. There was no guard about the step. Plaintiff had only been at work on this engine for eight or ten days, was not a mechanic, but had worked more or less on other machinery and engines. Held, that the danger was not so obvious that it could be said that plaintiff assumed the risk thereof, and as it could have been easily obviated by defendant the question of negligence was one for the jury, and a non-suit was error. 1</p>

<p>1. Negligence—Street railroads.</p> <p>Plaintiff endeavored to board an electric car by the front platform, when the car was suddenly started and he was thrown down, run over and injured. The car was stationary at the time, and the view in the direction from which plaintiff came was unobstructed. Held, that these circumstances warranted an inference that a proper discharge of his duties would have apprised the motorman of plaintiff’s approach, and that a refusal to charge that defendant was not chargeable with negligence if the motorman was not aware of plaintiff’s presence was not error.</p> <p>2. Same—Duty to look eor passengers.</p> <p>Defendant’s servants are not relieved from the duty of looking for persons wishing to board the car while at a full stop by the fact that the place is not a regular stopping place and a stop there is against the rules of the company, where it appears that cars were frequently stopped there and the public had no notice of the rule.</p> <p>3. Same—Coktbibutoby negligence.</p> <p>An attempt to board a stationary car by the front platform is not negligence per se.</p> <p>4. Same—Damages.</p> <p>Plaintiffs injuries necessitated the amputation of both feet. He was 36 years old at the time, and was only capable of earning §8 a week. Held, that a verdict of §11,620 was excessive.</p> <p>5. Appeal—Notice.</p> <p>A notice of appeal from a judgment which states that “ appellant intends to bring up for review upon such appeal the order * * * denying motion for a new trial herein on the judge’s minutes ” is, in effect, a notice of appeal from the order also, and is sufficient for that purpose.</p>

<p>Appeal from judgment of the supreme court, general term, first department, reversing judgment for plaintiff, entered upon verdict in an action of ejectment.</p>

<p>Appeal from judgment of the supreme court, general term, first department, reversing judgment in favor of plaintiff, entered on verdict in an action of ejectment.</p>

<p>Appeal—Re-argument.</p>

<p>Stocks—Dealings of cashier of bank.</p> <p>Plaintiff made purchases and sales of stocks and securities through de-° fendants as brokers,payments being made in cashier’s checks. The cashier subsequently absconded with all the securities of plaintiff’s customers," and it was obliged to make them good. It was then discovered that the cashier had been speculating on his own account. Defendants testified positively that they never knew or suspected that llie cashier was dealing for himself. A letter was put in evidence directed to the cashier personally,showing that defendants believed the customers of the bank to be speculating. Defendant’s accounts were first headed “W. H. S., Cashier,” then the word “Cashier” was omitted; then “W. H. S. stock account,” “W. H. S., gold account,” and “Central National Bank. Held, that the finding by the referee that the defendants had not dealt with the cashier as an individual was one of fact which this court was not at liberty to review.</p>

<p>Railroad—Negligence—Contributory.</p> <p>Plaintiff, while walking on the sidewalk of a public street at night, crossed a large number of railroad tracks, and 250 feet east thereof was struck by an engine running upon another track of which she had not known. There was no flagman or house or other sign. Plaintiff testified that the engine was running very fast, that no bell was rung or whistle sounded, and that she thought that the train was coming on the other tracks. Held, that it was for the jury to say, under all the circumstances, whether the plaintiff exercised ordinary prudence and care,</p>

<p>Bill op sale—Mortgage.</p> <p>Defendant’s husband executed and delivered to plaintiff a paper in the form of a bill of sale in consideration of $400, which provided that $2.50 a week was to be paid for the use of the property, which as left in the possession of the vendor, and that on payment of the $400 the property would be resold to him. Defendant claims under a sheriff’s sale on execution against her husband. In an action to replevy the goods the lawyer who drew the bill of sale testified that it was intended as a mortgage, but plaintiff testified that it was absolute and the consideration fully paid, and there was evidence that there was no intention to defraud creditors, lleld, that a finding in favor of plaintiff would not be disturbed.</p> <p>(Dykman, J., dissents.)</p>

<p>Appeal from judgment in favor of plaintiff, entered upon report of a referee.</p>