Volume 65 — New York Appellate Division Reports

Appeal by the City of New York, the successor to the Mayor, Aldermen and Commonalty of the City of New York, from so much of an order made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of March, 1901, as directs that “the report of said commissioners be and the same is hereby sent back to said Commissioners of Estimate and Assessment for further proceedings upon the claims of said objectors to have included in…

<p>Appeal by the defendants, Ernst Thalmann and another, composing the firm of Ladenburg, Thalmann & Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of February, 1901, overruling the defendants’ demurrer to the complaint.</p>

Appeal by the relator, John H. Behrmann, from an order of the Supreme Court, made at the New York Special Term, bearing date the 16th day of October, 1901, and entered in the office of the clerk of the county of New York, denying his application for an order directing the defendants to produce and file said relator’s certificate of independent nomination for the office of alderman in the forty-fourth aldermanic district.

Appeal by the plaintiff, Frederick Gerken, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of June, 1901, denying the plaintiff’s motion to continue a temporary injunction theretofore granted in the action.

Appeal by the defendant, Charles A. Tinker, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of August, 1901, nwnc pro fame as of July 1, 1901, denying the defendant’s application to cancel and discharge of record the judgment entered against him in the above-entitled action.

Appeal by the defendant, Isaac Newton Todd, trading as Newton Todd, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of June, 1901, denying the defendant’s motion to vacate a warrant of attachment theretofore granted in the action.

Appeal by the defendant, The Fidelity and Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of January, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William Almon Wolff, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1901, granting the defendant’s motion for a bill of particulars of the plaintiff’s claim.

Appeal by Dorothy M. Pettit and another, infants, by Jordan J. Rollins, their special guardian, and by James C. Pettit and another, as executors, etc., of Mary H. Pettit, deceased, from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 2d day of May, 1901, denying a motion to dismiss the proceeding on the ground that the Surrogate’s Court has no jurisdiction thereof. -

Appeal by Morrison Y. R. Weyant, a junior attaching creditor, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of August, 1901, as denies his motion to vacate the attachment obtained by the plaintiffs against the property of the defendant on the ground of the defendant’s non-residence.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of May, 1901, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 24th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by Mary Slcelly, as executrix, etc., of Patrick Larney, deceased, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York on the 19th day of August, 1901, denying her motion to vacate the judgment theretofore entered in the above-entitled action, and to permit her to intervene and defend said action.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of February, 1901, upon the verdict of a jury for §5,000, and also from an order entered in said clerk’s office on the 28th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p> Will—a general verdict against its validity, where there are several grounds of attack, not sustained if any ground is untenable—what undue influence and what insane delusion will invalidate it. </p> <p>Where the plaintiff in an action, brought under section 2653a of the Code of Civil Procedure to determine the validity of a will, attacks the will upon three grounds, namely, that the testator did not have testamentary capacity at the time it was made; that it was procured by fraud and undue influence, and that certain provisions thereof were inspired by insane delusions on the part of the testator, a general verdict in favor of the plaintiff will not be permitted to stand if any of the grounds were insufficient to nullify the instrument.</p> <p>The undue influence which will invalidate a will must be such importunity or influence as operated to deprive the testator of the free exercise of his will.</p> <p>An insane delusion which existed on the part of the testator and can-be traced into his will, will invalidate the instrument, but the fact that the provisions of the will are unjust or are the result of passion or of unworthy or unjustifiable sentiments or of false information, is not sufficient to invalidate it.</p>

<p>Appeal by the defendant, Saint Vincent’s Hospital of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of June, 1900, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 19th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. This is a submission of a controversy upon an agreed statement of facts. It appears that in May, 1898, the plaintiff procured from the defendant a policy of insurance upon a building in the city of New York. The policy was originally for the sum of $60,000, but by agreement on June 14, 1900, it was reduced to $42,500.

<p>Appeal by the defendants, Catherine McGuire and another, from an order of the Supreme Court, made at the New York Special Term, bearing date the 20th day of August, 1901, and entered in the office of the clerk of the county of New York, denying said defendants’ motion to vacate an prder for their examination before trial.</p>

Appeal by the defendant, Max Lichtman, from a judgment of the Court of Special Sessions of the city of New York, rendered on the 28th day of June, 1901, convicting him of a violation of section 389 of the Penal Code, as amended by chapter 494 of the Laws of 1900.

Appeal by the defendant, Therese Wolf, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of June, 1901, granting the plaintiff’s motion to vacate an order requiring the plaintiff to tile security for costs and allowing him to continue the prosecution of the action in forma pauperis.

Appeals by Mary Dent and Thomas Dent, the plaintiffs in the above-entitled actions, from judgments of the Supreme Court in favor of the defendant in such actions, entered in the office of the clerk of the county of New York on the 22d day of April, 1901, upon the dismissal of the complaints in such actions by direction of the court after a trial at the New York Trial Term, and also from orders entered in said clerk’s office on the 15th day of April, 1901, denying the…

<p>Appeal by the plaintiff, Walworth Ward, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 20th day of October, 1900, upon the report of a referee dismissing the plaintiff’s complaint.</p> <p>The plaintiff, as assignee of James Henry Work, seeks to recover in this action from the executors of John 0. Work, deceased, the sum of $65,800, which was paid to the latter between the 2d of May, 1883, and the 29tli of April, 1884, on the ground “ that the said money was paid under a mutual mistake of fact and that the consideration thereof lias wholly failed, and that the defendants, executors, etc., cannot in equity and good conscience retain the same as against said James Henry Work and his said assignee.”</p> <p>The facts, as stated in detail in the opinion of the learned referee, are as follows: “ Prior to May 6, 1884, a firm of Grant & Ward, in the city of Hew York, nominally bankers, pretended to be doing a very extensive and lucrative business in advancing money to contractors by the means of short loans in anticipation of payments on the contracts coming to the contractors from the United States Government or from railway conqmnies, and by these pretenses, which were wholly false, there being in fact no such contracts, they imposed upon various people, including John C. Work and James Henry Work, and induced them to pay the firm money-to be invested in interests in these alleged contracts; prior to the dealings involved in this action John C. Work seems to have had some such transactions with them, but these earlier transactions are not in question here. About April, 1883, James Henry Work, being himself fully satisfied as to the legitimacy of the business and with no suspicion of its fraudulent character, with the consent of John 0. Work, who was his father, invested about $14,000 of John C. Work’s money in the business; James Henry Work was at the same time investing a large amount of his own money, and through him various friends and business acquaintances of his were also making similar investments. The mode in which the business was done was as follows : One Warner, the brother-in-law of James Henry Work, who seems to have had more intimate relations with the firm of Grant & Ward than either of the Works, although it is claimed and it may be true that he also was deceived in respect to the nature of the business, would agree with the firm to invest a certain sum of money in one of these contracts, the firm agreeing to pay for the money so advanced a certain sum, including the return of the advance and a certain amount added as a profit on the advance at a certain time, generally about thirty days after the advance was'made; then James Henry Work would indicate to Warner what part of the advance to be made by Warner he would take for himself and friends; thereupon Grant & Ward gave written contracts to pay the stipulated amount at the date agreed upon, divided into such amounts as were reported to them by Warner, all the contracts running to bearer and being made separately for Warner and each of his friends, and for James Henry Work and each of his friends, including among the latter his father, John O. Work. The precise amount which each voucher or contract taken by James Henry Work represented or called for depended upon the agreement made by James Henry Work with the friend or investor for whom he was making the investment, and in the case of his father and a few others, the amount in respect to the addition of profit to the amount advanced was fixed, not by any special agreement, but by an allotment made by James Henry Work ; while this business was going on John C. Work was in Europe. In case of others than his father the amount added for profit was less than the amount which James Henry Work was himself receiving as profit on the investment, so that he was in this way receiving a commission or compensation for doing the business so transacted for others; whether in case of John 0. Work the added profits were any less than those received from or promised by Grant & Ward on the amount advanced for account of John 0. Work does not appear; there were no direct dealings between Grant & Ward and James Henry Work or those investing through him, but only between Grant & Ward and Warner. The vouchers received by Warner for James Henry Work and his friends were passed over to James Henry Work, and on their maturity Grant & Ward paid the amounts coming due to Warner, who in turn paid the amounts coming due to James Henry Work, and he in turn paid the amounts coming due to his friends and investors; on payment these vouchers or contracts were surrendered. Later a system grew up of arranging a reinvestment before the maturity of the vouchers; either of the whole of the amounts falling due or such part as the investors severally desired to invest in new alleged contracts of a similar nature, and in such cases differences only were in fact paid in money on the maturity of the vouchers.</p> <p>“The business went on prosperously till May 6, 1884, when the bubble burst; Grant & Ward failed;, it was discovered that the whole business was a fraud on the part of Ward, the managing partner of Grant & Ward; there were no contracts with the government or others on which they were advancing money; the firm had succeeded in getting large loans from the Marine Bank which was-ruined by their operations, and the bank also failed a few days later.</p> <p>“ When the failure came, John C. Work’s investments, by the frequent turning over of the money and its reinvestment, and the reinvestment of profits had yielded him the $65,000 received and deposited to his account, and James Henry Work still held for him un matured vouchers for the amount of his original capital and $10,000 in addition thereto; James Henry Work had received in profits about $250,000 beyond his own investments and held unmatured vouchers for about $750,000, which included an original capital of $40,000 or $60,000.</p> <p>“ Grant & Ward, and Ward individually, made assignments for the benefit of creditors; the assignee of the firm was also appointed receiver in a creditor’s action against the firm; Ward was induced to convey his real estate, to Warner, which was claimed to he a transfer in trust for the holders of unmatured vouchers, who were also preferred creditors under the firm’s assignment. Litigations, various and complicated, were commenced, in which James Henry Work was involved as a defendant; in one of the actions John 0. Work was. a defendant; the good faith of Warner and James Henry Work were impugned and threats of criminal prosecutions were made against them. For several years James Henry Work was engaged in settling up the business, and he finally paid $200,000 to the receiver of the Marine Bank, and about $20,000 in expenses of all kinds, and about $65,000 to obtain the consent of preferred creditors — holders of unmatured vouchers, whose claims against the real estate of Ward and whose - position under the firm’s assignment enabled them to throw obstacles in the way of the proposed settlement. A judgment was recovered by Ward’s assignee against Warner for $1,400,000; James Henry Work’s efforts at settlement and the payments he made were partly for the protection and relief of Warner and his estate; a settlement ending all litigation was ultimately effected; it maybe that these payments made by James Henry Work enured in part to the benefit of John O. Work and his estate; he died in 1887, before the settlement was consummated.”</p>

Appeal by the Fidelity and Deposit Company of Maryland, surety on the bond of Briton Richardson, who is now deceased, from a judgment of the Supreme Court in favor of Homer R. Scoville, as substituted assignee of William MacFarlane & Co., entered in the office of the clerk of the county of Hew York on the 24th day of May, 1901, upon the report of a referee.

<p>Appeal by David Keane from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 27th day of February, 1901, admitting to probate a paper purporting to be the last will and testament of Thomas W. Evans, deceased, and also from an intermediate order entered in said Surrogate’s Court on the 4th day of February, 1901, denying the application of the said David Keane for leave to intervene in the proceeding and file objections to the probate.</p>

Appeal by the defendant, The City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 11th day of February, 1901, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Henry E. Fox, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 26tli day of April, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

Appeal by the defendant, Mary Y. Parker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of February, 1901, and also from an order entered in said clerk’s office on the 7th day of March, 1901, denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Paul Armstrong, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 8th day of August, 1901, denying the petitioner’s application for a writ of mandamus commanding the respondent to grant a theatrical license.

<p>Appeal by the petitioner, Paul Armstrong, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of August, 1901, denying the petitioner’s application for a writ of certiorari to review the determination of the respondent in refusing to grant a theatrical license.</p>

Appeal by the defendants, Robert Nathaniel Boyd and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of July, 1901, denying said defendants’ motion to vacate an order theretofore granted in the action directing the publication of the summons.

Appeal by Wilbur E. Cushman and others, judgment creditors, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1900, denying their motion to vacate an order entered in said clerk’s office on the 2d day of May, 1900, discharging a judgment recovered by them against William J. Arkell.

<p>Restrictive covenants in a deed of pari of a tract— they are inapplicable to another pari of the same tract subsequently conveyed by the same owner — a residence for nurses is not “ noxious or offensive.”</p> <p>Where the owners of a block of land adopt a general plan for the improvement of the same, regulating the character of the buildings to be erected thereon and restricting the use thereof to certain purposes, communicate such plan to purchasers of portions of the block and embody the provisions thereof in covenants contained in the deeds executed by them to such purchasers, a person who acquires title to the remaining portion of the block under a deed from the original owners not containing the restrictive covenants contained in the deeds of the other portions of the block, without knowledge or notice of the oral agreement made by the owners of the block that the entire block should be sold subject to the restrictive covenants, is not bound by such covenants.</p> <p>The erection by a hospital corporation, upon land subject to a covenant that the grantees thereof would not use the premises for “ any manufactory, trade or business whatever, which may be in any wise noxious or offensive to the neighboring inhabitants,” of a building to be solely used for the residence of nurses employed in the hospital, does not constitute a violation of the covenant.</p>

Appeal by the defendant, John C. Scott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of February, 1901, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles Davis, as trustee, etc.,. of Harry R. Marcuse and John J. Middagh, bankrupts, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of July, 1901, denying the defendant’s motion to change the place of trial from the county of Hew York to the county of Ulster.

Appeal by the defendants, Alice M. Theiss and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of March, 1901, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, the Western Union Telegraph Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 25th day of April, 1901, denying the defendant’s motions to set aside the verdict theretofore rendered in favor of the plaintiff and for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 22d day of May, 1900, directed to Silas W. Burt and others, as Civil Service Commissioners of the State of Hew York, constituting the State Civil Service Commission of said State, and to Charles H. Knox and others, as municipal civil service commissioners of the city of Hew York, constituting the municipal civil service commission of said city, commanding them to certify and return to the office of the clerk of…

<p>Appeal by the applicants, Henry Hanlein and another, from an order of the Supreme Court, made at the Hew York Special Term- and entered in the office of the cleric of the county of New York •on the 27th day of September, 1901, directing a reference to determine and report upon a question of fact arising upon a motion to punish a surety upon an undertaking for contempt.</p>

Appeal by the plaintiff, Carl Fischer-Hansen, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York on the 29th day of August, 1901, precluding the plaintiff from giving, upon a trial of the action, any evidence or the cause of action set forth in his complaint.

Appeal by the defendants, Thomas A. Ennis and another, from an order of the Supreme Court, made at the Eew York Special Term and entered in the office of the clerk of the county of Rew York on the 17th day of July, 1901, denying the defendants’ motion to vacate an order theretofore granted in the action for the examination of the defendants before trial for the purpose of enabling the plaintiff to frame her complaint.

Appeal by the defendant, Owen Gr. Parr, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 13th day of June, 1901, directing the discovery of the contents of a vault and appointing a referee to make an examination thereof.

Appeal by the defendant, Richard Webber, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of June, 1901, upon the decision of the court rendered after a trial at the New.York Special Term overruling the defendant’s demurrer to the supplemental and amended complaint.

Appeal by the defendant, Caspar Aronson, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1901, as directs that the answer interposed by said defendant be stricken out as sham.

Appeal by the relator, John Thain, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 17th day of Hovember, 1897, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining a demurrer to an alternative writ of mandamus and dismissing said writ.

Appeal by the defendant, Judson H. Grant, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of - the county of New York on the 12th day of July, 1901, denying said defendant’s motion to vacate an order for his examination in proceedings supplementary to execution.

<p>Legal services rendered after, under a resolution of the town hom'd passed before, the passage of the act annexing the town of Westchester to the city of ’New York — the city is net liable therefor—power of the Legislature over towns.</p> <p>The city of New York is not liable to an attorney for professional services rendered by him, pursuant to a resolution of the board of town auditors of the-town of Westchester, adopted three days prior to the date when chapter 934 of the Laws of 1895, annexing the town of Westchester to the city of New York, became a law, in prosecuting, after the act had become a law and the town had ceased to exist, an action to determine the constitutionality of that act, notwithstanding that the act contained a saving clause providing that “ Nothing contained in this act shall impair the obligation of any contract, and the property and inhabitants of the territory annexed by this act to the city and county of New York shall continue liable to the existing creditors of the several towns and villages, respectively, and of the county of Westchester, in like manner as if this act had not been passed.”</p> <p>A town, as a corporation, exists solely by virtue of the legislative will, and, as against the town itself, the town boundaries may be extended or restricted at the pleasure of the Legislature, or the town itself be destroyed by consolidating it with another town or municipality without even the request or consent of any of the inhabitants.</p>

Appeal by the plaintiff, Thomas J. Nolan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of April, 1901, upon the dismissal of the comjffaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 29th day of March, 1901, denying the plaintiff’s motion for a new trial.

<p>Appeal by the defendants, James G. Kennedy and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of August, 1901, appointing a referee in the place and stead of the original referee, resigned.</p>

Appeal by the plaintiffs, Annie Frazer and another, from an interlocutory judgment of the Supreme Court in favor of certain defendants, entered in the office of the clerk of the county of New York on the 17th day of April, 1901, upon the decision of the court rendered after a trial at the New York Special Term sustaining a ■demurrer to the complaint upon the ground .that it fails to state a cause of action.

Appeal by the plaintiff, Patrick W. Cullman, as State Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of March, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Counsel fee and alimony — when the former should he denied and the latter he limited to the children.</p> <p>A woman brought an action in the county of Kings against her husband for a separation upon the ground of abandonment and non-support. The defendant answered and a trial was had which resulted in a judgment in favor of the plaintiff. The defendant appealed to the Appellate Division in the second department from that judgment, and the court, after a consideration of the evidence, reversed the judgment, holding that the evidence established the defendant’s affirmative defense that he was justified in abandoning the plaintiff. The plaintiff took no appeal from the judgment of reversal and the action was finally dismissed.</p> <p>Thereafter the plaintiff brought an action in the county of New York for a separation upon the 'ground of cruel and inhuman treatment, covering the same period of time in which the plaintiff was alleged to have been guilty of the misconduct which the court, in the previous action, had held to justify the defendant'in abandoning her. The defendant having answered, the plaintiff made a motion for alimony and counsel fees, which motion was granted by an order directing the defendant to pay to the plaintiff the sum of $20 per week as alimony, and the sum of §1,.0 as counsel fees.</p> <p>JSeld, that, under the circumstances, the order for counsel fees should not he sustained, and that the amount of alimony should he reduced to the sum of fifteen dollars per week for the support of the defendant’s children only.</p> <p>Appeal by the defendant, Gustav Deisler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1901, awarding the plaintiff alimony and counsel fees pending the trial of the action.</p>

Appeal by the plaintiff, Edward B. Brady, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of March, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, L. Laflin Kellogg and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of August, 1901, denying the said defendants’ motion to have certain additional parties made defendants.

Appeal by the defendant, Bird S. Coler, as comptroller of the-city of New York, from an order of the Supreme Court, made at. the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of July, 1901, granting-the relator’s motion for a peremptory writ of madamus.

<p>Attachment — scope of an examination of a third person as to property of the attachment debtor—what proof is sufficient that the property is within the jurisdiction and may be attached.</p> <p>.An examination of a third person, concerning property of an attachment debtor, can only be had with respect to property which can be reached by the attachment.</p> <p>The examination may be ordered for the purpose of enabling the attachment creditor to ascertain the existence of such property.</p> <p>An allegation, upon information and belief, that the third party, a corporation having its principal-place of business in the city of New York, has property of the attachment debtor which is the subject of attachment, is sufficient to authorize the examination, especially where the third party fails to deny that it holds property of the attachment debtor which may be attached, and it • refuses to furnish a certificate of the property of the attachment debtor held by it, as required by section 650 of the Code of Civil Procedure.</p>

<p>.Tax—review of, by certiorari—the return is conclusive — duty of a corporation applying for a reduction to take the initiative—appeal from an order of reference.</p> <p>The allegations contained in the return to a writ of certiorari must, for the purpose of the certiorari proceeding, be taken as true; if they are untrue the relator’s remedy is by an action for a false return.</p> <p>Section 898 of the Greater New York charter (Laws of 1897, chap. 378), requiring the board of taxes and assessments to hear all applications of corporations for the revision and cancellation of assessments, and section 895 of the charter, providing that where an application.is made to revise, reduce and cancel an ■assessment of personal property the applicant shall be examined under oath by a commissioner of taxes, contemplate that a corporation which claims that its assessment for personalty is excessive will take the initiative in bringing the matter to a hearing before the board of tax commissioners, and will present itself, its agents or officers, in order that the required oath may be administered and the evidence upon the merits of the application can be taken and a record of the same preserved.</p> <p>Where a corporation files with the commissioners an application for a revision of its personal assessment upon the ground that it is excessive, and takes no steps to secure a hearing before the board, and offers no testimony concerning its claim, the court has no jurisdiction to issue a writ of certiorari to review the assessment.</p> <p>Where the court issues such a writ of certiorari and subsequently grants the relator’s motion for an order of reference in the proceeding, an appeal will lie from the order of reference.</p> <p>Semble, that the order of reference is not appealable if the court has authority to grant the writ.</p>

Appeal by Marcus A. Bettman, one of the joint administrators, etc., of Sigmund Schneittacher, deceased, from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 7th day of August, 1901, denying his motion for a resettlement of the final decree judicially settling his accounts.

Appeal by the defendant, Walker Winston, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of September, 1901, awarding the custody of Lillian Winston to the petitioner, after a hearing on the return to a writ of habea corpus.

Appeal by the plaintiff, the Ideal Wrench Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of January, 1901, upon a nonsuit granted after a trial at the New York Trial Term.

Appeal by the plaintiff, Charles Grube, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of June, 1901, as directs the plaintiff to pay alimony t» the defendant pendente lite.

Appeal by the plaintiff, Mary W. Livingston, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of May, 1901, appointing a referee to take proof of the present circumstances of the parties to the action and to report the same to the court with opinion.

Appeal oy the plaintiff, Henry Arlt, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 29th day of April, 1901, upon the decision of the court rendered after a trial at the Hew York Special Term sustaining the demurrer interposed by the defendant to the second cause of action alleged in the complaint.

<p>Motion for a reference to assess damages sustained from an injunction — it cannot he made in the first judicial district where the venue of the injunction action was in another county.</p> <p>A motion for the appointment of a referee to ascertain the damages sustained by reason of an injunction granted in an action which was brought and prosecuted to final judgment in Queens county, must necessarily be made upon notice and be entitled in the action; under the provisions of section 769 of the Code of Civil Procedure, such motion cannot be made in the first judicial district.</p>

Appeal by the defendant, George R. -Sutherland, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on.the 22d day of March, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling a demurrer to the complaint, except from that part of such judgment which adjudges and decrees that there is no defect of parties plaintiff or defendant.

<p>Appeal by the defendant, George T. Jarvis, as receiver of the Louisville, Evansville and St. Louis Consolidated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of February, 1901, upon the report of a referee.'</p>

Appeal by the defendant, Henry E. Fox, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of April, 1901, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, William H. Maxwell, as city superin-■ tendent of schools in the city of New York, from an order. of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of August, 1901, granting the relator’s motion for a peremptory writ of mandamus.

<p>Negligence — injury to a passenger standing on the step of an open street car, th rown off by the car being suddenly jerked forward.</p> <p>The complaint in an action to recover damages for personal injuries alleged that the plaintiff was a passenger upon one of the defendant’s open street cars; that as the car approached a street intersection it slowed up as if about to stop, and that the plaintiff left his seat and stepped down upon the step of the car, holding on to the handbar; that the conductor was standing on the step at the front of the car collecting fares with his hack to the plaintiff; that as the car did not stop entirely the plaintiff whistled to the conductor, who turned his head towards him but did not stop the car; that through the negligence and carelessness of the conductor and gripman the car suddenly jerked forward and the plaintiff was thrown off and injured. It was not alleged that the car had slowed down in response to any signal to stop.</p> <p>The plaintiff’s counsel when opening the case to the jury, stated, in addition to the facts alleged in the complaint, that the defendant’s cars usually stopped at the street intersection in question; that the car was jerked forward simultaneously with the plaintiff’s signal to the conductor, and that the negligence charged by plaintiff was the act of the conductor in placing himself in a position where he could not see passengers behind him who wished to get off.</p> <p>Held, that the facts stated would not justify an inference that the conductor or gripman of the car was guilty of negligence, and that the court properly dismissed the complaint upon the opening.</p> <p>Hatch, J., dissented.</p>

Appeal by the plaintiff, the Magnolia Metal Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13 th day of March, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by James A. Baker from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 8th day of April, 1901, denying his motion to vacate an order for the issuance of a citation directing him to attend and be examined as to any property of the decedent, under section 2707 of the Code of Civil Procedure.

<p>Appeal by the plaintiff, William Bradley, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 2d day of August, 1901, denying the plaintiff’s motion for an injunction pendente lite and dissolving a preliminary injunction theretofore granted.</p>

<p>Action on an implied promise to pay for goods— non-payment need not be alleged or prored.</p> <p>. Semble, that in an action to enforce an implied promise to pay for goods sold and delivered by the plaintiff’s assignor to the defendant, it is not necessary for the plaintiff to allege and prove non-payment, although the defendant alleges payment in his answer.</p>

Appeal by the claimant, Weil Brothers & Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1901, confirming the report of a referee appointed to hear and determine the claim of the appellant, which report disallowed such claims.

<p>Injunction — to restrain the execution of a warrant in summary proceedings — what allegations seeking a reformation of a lease are insufficient — service of additional affidavits after the service of an order to show cause.</p> <p>An injunction restraining the execution of a warrant for dispossession in summary proceedings until the determination of an action brought by the tenants against the landlord to reform the instrument under which the tenants held possession, and which simply purported to give them the privilege of occupying the premises for fifty dollars a month and did not define the duration of the term, into a lease until May 1, 1903, will not be granted where, although there is a general allegation of. fraud and deceit upon the part of the landlord, the only fact stated' in the moving affidavit is that the tenants accepted the instrument without reading it upon the supposition that it set forth a different agreement, and where there is no proof of the authority of the person who signed the instrument, as attorney for the landlord, to make on behalf of the laudlord the agreement alleged to have been made.</p> <p>Semble, that a party making a motion based upon an order to show cause who, without leave of the court, serves additional affidavits on the opposing party before the return day with a notice that such additional affidavits will be presented and be made a part of the moving papers, is not entitled to have suoh . additional affidavits read on the motion.</p> <p>Where, [however, the additional affidavits are, without objection, read and considered upon the motion, they must be considered upon appeal.</p>

Appeal by the defendants, Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of April, 1901, sustaining a writ of certiorari theretofore issued in the action and vacating an assessment for damages.

Appeal by the plaintiff, Andrew Laguttuta, an infant, by Joseph Laguttuta, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 15th day of March, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 1st day of April, 1901, denying the plaintiff’s motion for…

Appeal by the defendant, May Thorne Brantingham, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of July, 1901, vacating an order requiring the plaintiff to give security for costs.

Appeal by the defendant, the Bank for Savings in the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Thomas II. Wentworth from an order of the Supreme Court, made at the Hew York Special Term on the application of Henry I. Dittman and Kalman Haas and entered in the office of the clerk of the county of Hew York on the 20th day of September, 1901, requiring him to answer certain questions propounded to him while being examined within the State of Hew York as a witness in a suit in the Chancery Court of the State of Hew Jersey.

<p>Appeal by the plaintiff, India Rubber Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 3d day of April, 1901, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 26th day of March, 1901, granting an additional allowance of costs to each of the defendants.</p> <p>This action was originally brought by the plaintiff, India .Rubber Company, a foreign corporation, organized in the State of Ohio, and having no office in this State, against the American Bicycle Company, also a foreign corporation, organized under the laws of New Jersey, but having an office for and transacting business in the city of New York, to recover the sum of $28,685.09 for goods sold and delivered by the plaintiff to such defendant.</p> <p>The American Bicycle Company admitted its indebtedness to the plaintiff and presented a petition to the court so admitting, but alleging that the defendants herein claimed said sum by reason of a levy under a warrant of attachment in an action brought by Edward A. Katz, and asking that it be allowed to deposit the amount with the chamberlain of the city of New York, and that it be discharged from all liability, and that the attaching creditor, Katz, and the sheriff levying the attachment, be substituted as defendants in the action in its place and stead. This petition was granted, and an order was made permitting the deposit cf the amount of the debt with the city chamberlain, and directing that Edward A. Katz and the sheriff, William F. Grell, be substituted as parties defendant herein. The deposit was made pursuant to the order, and the plaintiff afterwards served an amended complaint upon the present defendants, each of whom appeared by attorney and set up the attachment suit and a levy thereunder before the commencement of this action.</p> <p>After the deposit was made with the city chamberlain the defendant sheriff, pursuant to the attachment mentioned, levied upon said sum so deposited in the hands of the chamberlain. A motion was made by this plaintiff in the action brought by Katz against it to set .aside the levy upon the debt of the American Bicycle Company to it, but the motion was denied, and upon an appeal to this court from the order denying the motion the order was affirmed. The defendant sheriff has not attempted to take possession of the moneys levied upon in the hands of the chamberlain, and has not attempted to enforce the levy made except by serving a notice of attachment upon the American Bicycle Company and upon the chamberlain. It was not contended but that the attachment issued in the action by Katz' against the plaintiff is valid.</p> <p>There was no dispute as to the facts in the case, and-it was submitted and decided npon an agreed statement of facts. The trial court directed a dismissal of the complaint on the merits, and judgment was entered accordingly. Motions were made by the defendants for extra allowances, which were granted, and from the judgment and the order granting such allowances this appeal is taken.</p>

Appeal by the plaintiff, Margaret Healy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 29th day of March, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 4th day of April, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Attorney’s services — in an action therefor on a quantum meruit, what is to, he considered— the fact that payment therefor was contingent on the event of the action is not to he considered.</p> <p>In an action by an attorney on a quantum meruit for professional services rendered by him as counsel in an action upon the employment of the defendants, who were the attorneys of record therein, the question for the jury is what was the fair and reasonable value of the services actually rendered in view of the nature and importance of the litigation, the standing of the attorney in his profession for learning, skill and proficiency and of the importance to the client of the result, and such value cannot be augmented by the fact that the services were to be performed gratuitously in the event that the action was not successful.</p>

<p>Appeal by the defendant, John H. Starin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, the L. D. Garrett Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, bearing date the 15th day of May, 1901, and entered in the office of the clerk of the county of New York, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining a demurrer to the complaint.

Appeal by the defendants, Charles H. LeMou and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk for the county of Yew York on the 28th day of June, 1898, upon the decision of the court rendered after a trial at the Yew York Special Term.

Appeal by Edward C. Schaefer and George G. Schaefer, individually and as executors and trustees under the last will and testament of Frederick Schaefer, deceased, from portions of a decree of the Surrogate’s Court of the county of ¡New York, entered in said Surrogate’s Court on the 1st day of ¡March, 1901, sustaining exceptions to the report of a referee appointed by the court and surcharging their accounts as executors.

<p>Appeal by James P. Robertson, the purchaser at a sale in partition, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of July, 1901, directing him to complete his purchase of the premises Ho. 488 Eighth avenue in the city of Hew York, pursuant to his bid at a sale thereof under a judgment in partition.</p>

<p>Municipality — what failure of the city of Mew Toi'k to remove ice from its sidewalks does not constitute negligence.</p> <p>A city which delegates the duty of removing ice and snow from its sidewalks, in the first instance, to the abutting property owners is only called upon to act when it has actual or constructive notice -that dangerous accumulations of ice and snow exist and a reasonable time has elapsed after such notice to enable it, in the exercise of ordinary care, to remove the obstruction.</p> <p>In an action brought against the city of New York to recover damages for personal injuries, sustained by the plaintiff in consequence of falling upon an accumulation of ice and snow upon a sidewalk on one of the public streets of that city, it appeared that the accident occurred between eleven and twelve o’clock in the forenoon on the 30th day of December, 1896.</p> <p>It also appeared, from the records of the United States weather bureau, that the first snowfall of the season occurred on the fifteenth of December and lasted for four minutes; that at nine-thirty-two p. m. on that day sleet commenced to fall, which turned into snow at eleven-eighteen p. m. ; that the snow continued to fall until three-fifteen p. m. on the sixteenth, during which time seven and eight-tenths inches fell; that the temperature was below freezing all day on the sixteenth, and that on the seventeenth the highest temperature recorded was thirty-six degrees and the lowest twenty-two degrees; that on the eighteenth the highest temperature recorded was forty-four degrees and the lowest twenty-eight degrees; on the nineteenth the highest temperature recorded was thirty-four degrees and the lowest twenty-three degrees, and on the twentieth that the highest temperature recorded was thirty-two degrees and the lowest twenty-four degrees; that the records did not show at which hours the temperature reached the maximum or minimum. These conditions were confirmed by the probábilities of the case and by the preponderance of the oral testimony. The duty of removing snow and ice from the sidewalk rested, in the first instance, upon the owners of the abutting property.</p> <p>Held, that if the ice upon which the plaintiff fell was formed as a result of the storm or of the melting of the snow, the city could not, under the conditions disclosed, be charged with negligence in not causing its removal before eleven o’clock on the morning of the twentieth of December.</p> <p>Patterson, J., dissented.</p>

<p>Appeal by the plaintiffs, John R. P. Wood riff and Francis W. J. Hurst, as sole acting executors of Edward S. Jaffray, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of March, 1901, denying the plaintiffs’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, Robert L. Cutting and another, on Dehalf of the stockholders of the Staten Island Rapid Transit Railroad Company, from a portion of a final judgment of the Supreme Court in favor of the defendant, the Baltimore and Ohio Railroad Company, entered in the office of the clerk of the county of Richmond on the 25th day of July, 1901, upon the decision of the court rendered after a trial at the Richmond Special Term, with notice of an intention to bring up…

Appeal by the petitioner, the Board of Trustees of the Village of White Plains, from an order of the Supreme Court, made at the Westchester Special Term.and entered in the office of the clerk of the county of Westchester on the 22d day of April, 1901, granting its motion to discontinue proceedings instituted by it to open a public highway on its compliance with the terms imposed by the order.

Appeal by the plaintiff, John Sohwan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 24th day of May, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term before the court without a jury.

Appeal by the defendant, The City of Yew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of June, 1901, upon the decision of the court rendered after a trial at the Queens County Special Term.

<p>Appeal by the defendant, the Nichols Chemical Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of April, 1901, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 11th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> Residuary legatees cannot maintain an action against the executor of the executor of their testator—awadministrator with the will annexed must sue. </p> <p>Where a testator by his will directs that the proceeds of a policy of insurance on his life be invested by his executor and that the interest thereon be paid to his wife during her life, and at her death that the principal be paid to his children or their heirs in equal proportions, the testator’s children cannot, after the death of the testator’s widow, maintain an action against the personal representative of the executor to recover the principal of the fund, although they have obtained an order of the Supreme Court authorizing them to bring the action; such an order is not res adjudieata upon the plaintiffs’ right of recovery. Semble, that administrators with the will annexed of the original testator alone would have legal capacity to maintain the action.</p>

<p>Appeal by the defendant, William Walton, as sheriff of the county of Kings, from an. interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of March, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling a demurrer to the complaint.</p> <p>This action was brought to recover damages for false Imprisonment.</p>

Appeal by the defendant, Annie Eannaco (formerly Annie Dimiere), from an interlocutory judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of December, 1900, upon the report and supplemental report of a referee in. partition.

Appeal by the plaintiff, Joseph Hartmann, from a judgment of the County Court of Nassau county in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 6th day of April, 1901, affirming upon appeal a judgment in favor of the defendant rendered upon the verdict of a jury after a trial before a justice of the peace.

Appeal by the defendant, Kate Baumann, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered on the 27th day of May, 1901, upon the decision of the court.

Appeal by the plaintiff, Henry Hicks, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, entered on the 7th day of June, 1901, upon the decision of the court.

<p>Appeal by Lilian P. Heaney, as general guardian, and George A. Heaney, as special guardian, of Charles W. Miller, an infant, from a decree of the Surrogate’s Court of the county of Richmond, entered in said Surrogate’s Court on the 31st day of October, 1900, dismissing the proceeding.</p>

Appeal by the defendant, The Staten Island Midland Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of June, 1901, upon the verdict of a jury for $1,420, and also from an order entered in said clerk’s office on the 10th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of January, 1901, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 9th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Walter L. Burt, from an order of the County Court of Westchester county, bearing date the 26th day of January, 1901, and entered in the office of the clerk of the county of Westchester setting aside the verdict of a jury in favor of the plaintiff and granting a new trial of the action.</p>

Appeal by the defendant, the Bottling Brewers’ Protective Association, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of May, 1901, denying a motion to vacate an order for the examination of the treasurer of the defendant.

<p>Freeholder selling a decedent’s estate — expenses may be deducted before payment to the county treasurer—payment of a judgment, not a lien— handbills, circulars, etc. —interest on a mortgage and on money refunded because of an illegal sale — charge for legal services.</p> <p>A freeholder appointed to sell the real estate of a decedent may, under sections 2563 and 2786 of the Code of Civil Procedure, he allowed his expenses, counsel fees, etc., by the surrogate upon rendering his account of the sale, and is not obliged to pay over to the county treasurer the gross proceeds of the sale and wait for such payment until the final distribution under section 8793 of the Code of Civil Procedure.</p> <p>A judgment against the decedent, which does not appear to have been a lien on the land at the time the proceeding was taken, is not payable out of the proceeds of the sale.</p> <p>The expense of publishing handbills, circulars, etc., relating to the sale is not chargeable against the proceeds in the absence of an agreement of all the parties concerned that such expense shall be incurred or of an order of the court sanctioning such expenditure.</p> <p>The freeholder is entitled to an allowance for interest paid by him upon a mortgage covering the premises, and also for interest on a part of the purchase price paid upon a previous illegal sale of the premises, and ordered to be refunded upon the vacation of the sale.</p> <p>Where, upon the rendering of the freeholder’s account of the sale, the surrogate wholly disallows an item of $600 paid by the freeholder for legal services, and it is impossible to ascertain from the record whether the item was disallowed upon the ground that nothing whatever should be awarded to the freeholder for services of counsel or on the ground that the application for the allowance should not he made until the final distribution, the Appellate Division considered that the freeholder should have leave to apply for the expenses incurred by him in employing counsel when the final distribution was ordered.</p>

<p>Judgment directing the delivery of a document — appeal therefrom—what stays the execution thereof—the court must fix the amount of the undertaking.</p> <p>A judgment which directs the delivery by one of the defendants to the plaintiff of a number of shares of stock, is a judgment directing the delivery of a document or of personal property within the meaning of section 1328 of the Code of Civil Procedure, which provides that the taking of an appeal from such a judgment does not stay the execution thereof “until the thing directed to be assigned or delivered is brought into the court below, or placed in the custody of an officer or receiver designated by that court; or the appellant gives a written undertaking as prescribed in the next section.”</p> <p>The provision of section 1329 of the Code of Civil Procedure authorizing the court to fix the amount of the undertaking, does not empower it to prevent the appellant from obtaining a stay by refusing to fix any amount whatever.</p>

<p>Complaint alleging a sale to the defendant individually—proof that it was to defendant’s Arm—an a/menament that the defendant was “the sole surviving member of the firm” will not sustain a judgment against him — nor will Ms assumption of its debts.</p> <p>A complaint in an action alleged that goods had been sold and delivered to the defendant individually while he was trading under the firm name of Wilatus & Sander. The defendant interposed an answer alleging that there had been a firm doing business under the name of Wilatus & Sander, and that the goods mentioned in the complaint were sold to that firm and not to the defendant individually. At the opening of the trial the plaintiff obtained leave to amend the complaint so as to allege that the defendant was “ the sole surviving member of the firm,” but no other amendment was made, and the evidence given supported the averments of the answer.</p> <p>Held, that a judgment should not have been rendered in favor of the plaintiff;</p> <p>That the fact that the defendant admitted that he assumed the debts of the firm of Wilatus & Sander at the time of its dissolution, would not support the judgment.</p>

Appeal by the defendant, William Connors, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on' the 24th day of May, 1901, upon the verdict of a jury.

<p>Summary pi'oceedings for non-payment of rent — a partial eviction of the tenant is a bar thereto.</p> <p>The eviction of a tenant from a portion of the demised premises suspends, during the continuance of the eviction, the right of the landlord to maintain summary proceedings against the tenant for non-payment of rent.</p>

Appeal by the plaintiff, Mary L. Chamberlain, as trustee of Maud A. Cuming, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of May, 1901, granting the defendant’s motion and directing that Maud A. Cuming be brought in and made a party defendant in the action, unless she elect to appear as a plaintiff.

<p>Appeal by tlie plaintiff, the Carter White Lead Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 10th day of April, 1901, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 24th day of April, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, the International Seed Company, from a judgment of the County Court of Nassau county in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 29th day of January, 1901, reversing, upon ati appeal, a judgment in favor of the plaintiff rendered by a justice of the peace of the county of Nassau.

<p>Appeal by the plaintiff, Joseph Hartmann, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Nassau on the 30th day of March, 1901, upon the verdict of a jury for ten dollars rendered by direction of the court, and also from an order entered in said clerk’s office on the 30th day of March, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Karl Sesselmann, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 1st day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 29th day of December, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 29th day of April, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of June, 1901, upon the verdict of a jury for $1,900, and also from an order entered in said clerk’s office on the 10th day of June, 1901, denying the said defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Michael Hart, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 10th day of July, 1901, dismissing the complaint.

<p>Appeal by the defendant, Augusta Gminder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of June, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging a certain deed to have been forged, and directing the same to be canceled of record.</p>

Certiorari issued out of the Supreme Court and attested on the 8th day of May, 1901, directed to John Guilfoyle, commissioner of buildings for the borough of Brooklyn, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings in relation to the removal of the relator from the position of inspector in the department of buildings in the borough of Brooklyn.

<p>Mechanic's lien — a notice filed by a sub-contractor is not effective against a prior assignment for creditors made by the contractor.</p> <p>The execution and delivery of a general assignment for the benefit of creditors, executed by a building contractor, prevents a sub-contractor from obtaining a mechanic’s lien under a notice thereafter filed.</p>

Appeal by the defendant in each of the above-entitled actions from a judgment of the Supreme Court, in each action, in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 20th day of April, 1901, upon reports of a referee.

Appeal by the plaintiff, George Freschi, landlord, from a final order of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, made on the 15th day of August, 1901, dismissing summary proceedings- instituted for the recovery of possession of real property.

<p>Appeal by the plaintiff, Charles Rosenthal, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, entered on the 25th day of April, 1901, upon the decision of the court dismissing the complaint.</p>

Appeal by the plaintiff, James M. Finder, as administrator, etc., of Arthur Finder, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 19th day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Appeal by John M. Wellbrock, an attorney for the plaintiff in an action in the Supreme Court, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of June, 1901, appointing a referee to take proof of the facts upon a summary application by Abram H. Dailey, as counsel in said action, to compel repayment of disbursements made therein.</p>

<p>Appeal by the plaintiff, Ella L. Hurrell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of April, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint.</p>

<p>Consents to the construction of a street railroad—when, presumptively sufficient— they convey property interests and are not revocable — an abutting owner is entitled to damages but not to an injunction — recording of consents.</p> <p>Where an owner of property, abutting upon and extending to the center of a public street in a city, brings an action to restrain the construction of an electric street surface railroad therein, upon the ground that the consent of the owners of one-half in value of the property bounded on the street has not been obtained and recorded, and the railroad company serves an answer denying this allegation and furnishes a bill of particulars showing that the necessary number of alleged consents, reciting ownership in the individuals giving them, made in the usual form and acknowledged or proved, have been recorded pursuant to the statute, the burden of proving that such consents are ineffective rests upon the plaintiff.</p> <p>In such a case proof of the plaintiff’s title to the abutting land and that in an application, made under the provisions of section 18 of article 8 of the Constitution and section 94 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676) for the appointment of commissioners to determine whether the railroad should be constructed upon such street, the railroad company had alleged that it was unable to secure the necessary consents, does not shift the burden of proof and impose upon the railroad company any further onus of proving that it has secured a sufficient number of valid consents, where it appears that since the commencement of the proceeding for the appointment of commissioners the railroad company has succeeded to the rights of another company which also had procured a number of consents for the construction of a street surface railroad upon the street in question.</p> <p>A consent to the construction of a street surface railroad executed by an owner of property abutting upon the street is not, at least since the enactment of chapter 545 of the Laws of 1895, amending section 91 of the Railroad Law, a mere license, revocable at will, or by the transfer of the property before the construction of the railroad, nor is it subject to the Recording Act (Laws of 1896, chap. 547, § 840).</p> <p>The consent in law vests a certain property right in the railroad company to-which it is given.</p> <p>Semble, that an owner of the fee of a street who has not consented to the construction of a road therein may bring an action to compel the payment of damages, but has no right, where a majority of the consents have been obtained, to prevent the construction of the road.</p> <p>Semble, that the sole effect of the failure of the street railroad company to record the consent, until after the abutting property had been conveyed to a purchaser without notice, would be to entitle the purchaser to demand full compensation for any injury which may follow from the construction of the road.</p>

Appeal by the defendant, Oskar Block, doing business as the Yon Bauer Iron Works, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 6th day of August, 1901, upon the verdict of a jnry-

<p>Appeal by the defendant, Cora E. Sloane, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 17th day of March, 1899, upon the report of a referee.</p>

<p>Appeal by the plaintiff, Janies Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of December, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

<p>Negligence — proof of impaired eyesight and hearing —when the complaint authorizes it — verdict reduced from §6,500 to §4,000.</p> <p>A complaint in an action to recover damages for personal injuries which alleges that the plaintiff “sustained serious and lasting bodily injuries, and injuries to his head, limbs and nervous system, as well as internal injuries,” justifies the admission of testimony of impaired eyesight and hearing resulting from an injury to the head.</p> <p>Where it appeared that the plaintiff, who was a fireman in the service of the city of New York, was incapacitated from service by reason of his injuries for a period of less than two months, and that after returning to duty he received a vacation for ten days, and thereafter continued to do full service and to receive full pay, and had, with the consent of his own physician, submitted to and successfully passed a physical examination for promotion, and had attempted, although he partially failed in, the difficult athletic feats required by the examination, the court considered that a verdict of §6,500 was excessive, and should be reduced to §4.000, notwithstanding the fact that the plaintiff complained of an impaired ability to work; stiffness in his back and legs; that his hearing and eyesight were impaired; that his nervous system was affected, and that he was troubled with insomnia, and that an expert who examined him. diagnosed his trouble as a sprain of the spine with a degree of spinal curvature that might be permanent.</p> <p>Hirschberg, J., dissented as to the reduction of the verdict.</p>

<p>Appeal by the defendant, The City of New York, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 5th day of November, 1900, upon the decision of the court rendered after a trial at the Queens County Trial Term before the court without a jury-</p>

<p>Will—“youngest child" held to mean child en ventre sa mere — a codicil giving one-third of a newspaper to a son who by the will was given an estate in remainder in one-half thereof.\ held not to increase beyond one-half his ultimate interest.</p> <p>A testator in the 6th clause of his will bequeathed a trade journal owned by him to his executors in trust to continue to publish the same, and to pay out of the profits thereof a weekly sum for the support of his wife and minor children. It also provided: “(6) The money that is now in bank in my name I consider as a part of my paper, and the disposition hereinbefore and hereinafter made is in reference to my said paper and the money in bank, which money is to be for the use of said paper. (7) I desire that my said executor and executrix shall keep as much money from the profits of said paper as a sinking fund for said paper as practicable, my intention being that it should be enlarged and also in time of any reverses there will be sufficient money to carry said paper, said money or profits to be deposited in savings bank or trust companies or both.”</p> <p>The 7th clause provided: “In case of the remarriage of my said wife or at her death said paper (which will also include the money in bank or trust companies) is still to continue to run as aforesaid until my youngest child shall attain the age of 21 years, and th'n I bequeath one-half of my said paper, which will include one-half of all money in bank or trust companies to my son James M. Heatherton, Jr., and the other half of said paper, which will include the other half of all moneys in bank or in trust companies to the rest of my children in equal shares.”</p> <p>After executing the will the testator made a codicil providing: “I hereby ratify and confirm said Will in every respect save so far as any part of it is inconsistent with this codicil. I give and bequeath unto my beloved son, James M. Heatherton, Jr., a one equal third part or interest in and to the Plumbers’ Trade Journal mentioned in the foregoing Will, such interest to commence at my decease, and I direct that the said Plumbers’ Trade Journal shall be continued under the management of said son James M. Heatherton, Jr.”</p> <p>Held, that as there was nothing to show that the testator when using the term. “ youngest child” had in view any particular child, but simply intended that the division should be postponed until all of his children became of age, the term "youngest child” would be construed to mean a posthumous child of the testator, and not the youngest child born and living at the time of his death; That a child en ventre sa mere is regarded as a life in being within the meaning of the statute against perpetuities;</p> <p>That the effect of the codicil was to take one-third of the journal out of the trust and to continue the trust as to the other two-thirds of the paper and as to two-thirds of the money in the bank and in the trust company without disturbing the proportion in which the journal and the money were to be ultimately divided, that is, that the testator’s son, James, was, in addition to the one-third of the paper given to him absolutely, to have so much of the property at the termination of the trust as would afford him one-half of the paper and one-half of the money, namely, one-sixth of the money and one-sixth of the paper.</p>

Appeal by the defendant, Peter Colletta, from a judgment of the Court of Special Sessions of the Peace, second division, of the city of Sew York in favor of.the plaintiff, rendered on the 22d day of April, 1901, convicting him of assault.

<p>Negligence — liability of a railroad company to one injured while walking between its tracks — absence of a flagman at a crossing, not used by the injured person — contributory negligence.</p> <p>In an action to recover damages for personal injuries it appeared that the defendant was a railroad company, and that upon its right of way in the village of Hastings, N. Y., it maintained at a distance of two feet and four inches easterly from the westerly rail of the south-bound track, a wooden trunk two feet wide, used to carry signal wires; that this trunk extended between two grade crossings near its station, and was frequently used as a thoroughfare by the plaintiff and others, in the presence of the defendant’s employees; that about six o’clock upon the day of the accident, the plaintiff went to a switch shanty, at one of the crossings, to get some tools, and failing to obtain admission walked along the trunk northerly about fifteen or twenty feet, when he heard the six o’clock whistle blow; that, with the intention of returning to the shanty, he turned around and then became aware that one of the defendant’s trains was going by upon the south-bound track; that he felt himself drawn toward the train, and despite his efforts to save himself was drawn into it and injured.</p> <p>The train was a regular train and was on time, and the plaintiff was familiar with the situation, having walked upon the trunk hundreds of times while trains were passing on the south-bound track.</p> <p>Neld, that the plaintiff was a mere licensee;</p> <p>That the absence of a flagman at the crossing and the failure to give any warning of the approach of the train did not render the defendant liable to the plaintiff as the plaintiff did not intend to use the crossing;</p> <p>That in view of the plaintiff’s familiarity with the situation, and the fact that before he turned around to return to the switch shanty he could have seen the train at a distance of 350 yards, he could not be said to have established his freedom from contributory negligence.</p>

Cross-appeals by the plaintiff, Henry Batterman, and by the defendant, The City of New York, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 11th day of December, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Appeal by the plaintiffs, Mary Delmar' and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of January, 1901, upon the verdict of a jury, rendered by direction of the court, dismissing the complaint upon the merits in an action brought under section 2653a of the Code of Civil Procedure to have judicially declared invalid a paper purporting to be the last will and testament and codicil of John Delmar, deceased.</p>

<p>Appeal by the plaintiff, James E. Horton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 21st day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term.</p> <p>It appeared upon the trial that the plaintiff boarded the train from which he was ejected at Lackawaxen, Penn., and that he paid the regular fare from that place to Narrowsburgh, N. Y.</p>

<p>Gift causa mortis — declarations of an intent to give, and, as to what was given — when incompetent testimony of the donee does not require a reversal — proof of delivery.</p> <p>Upon the judicial settlement of the accounts of an administratrix, in which proceeding a niece of the intestate attacked an alleged gift made by the intestate to the administratrix, it appeared that the intestate and the administratrix were unmarried sisters and had lived together for twenty-five years; that the intestate became ill on October 3, 1897, and on the eighth day of that month, in the presence of her niece, a nephew and a grandnephew, she asked the administratrix to bring her a package of papers from a desk, which stood near her bed in the common bedroom of the two sisters and was used by both of them as a repository for their valuable papers; that the administratrix thereupon brought a packet wrapped in slate colored muslin, which contained papers and envelopes, to the intestate, who said, “These are all my valuable papers,bonds, mortgages, notes and bank book, and I give them to you to do with as you see fit, both real and personal, indoors and out; ” that the intestate then gave the packet back to the administratrix, who took it, put it in the desk, locked the desk and kept the key. The intestate died October 11, 1897, and did not leave any creditors.</p> <p>A nephew and a niece of the intestate testified to declarations made by the latter to the effect that she wished the donee to have all her property if she survived her.</p> <p>It appeared that the intestate, when making the alleged gift, did not exhibit the contents of the packet. One of the witnesses swore that the wrapping covered the entire packet except that each end showed; that she could not see what papers were in the packet, but that as nearly as she could see they were valuable papers. Another witness testified that he saw what appeared from its color to be a bank book, and another that the packet appeared to contain papers and envelopes. They all testified to the resemblance between the packet produced at the trial and that which passed from the hands of the intestate into the hands of the administratrix.</p> <p>Held, that the evidence established the making of a valid gift causa mortis;</p> <p>That the proof of the intestate’s declaration of her intent to give her property to the donee was competent;</p> <p>That evidence of the intestate’s declaration as to the contents of the packet was competent as part of the res gestm;</p> <p>That, assuming that it was improper to permit the administratrix to testify that the packet which she took from the desk after the intestate's death was the same as that which she produced upon the trial, the Appellate Division would not reverse the finding that the gift was valid as there was sufficient evidence in the case independent of the questionable testimony to sustain such finding; That there was sufficient proof of delivery.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Appeal by the plaintiff, Caroline Quade, from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 11th day of January, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, as decrees that all and several the trust provisions embraced in the will of William Broistedt, deceased, are valid, legal and effectual in every respect, and that the gifts to the issue of the testator’s children vested at the death of their parents, and which enjoins the parties to the action from setting up and impeaching the several devises, bequests and trusts, or any of them, contained in the last will and testament of said testator, or in any way otherwise making any claim in contravention to the determination of the court, and from each and every part of said judgment which adjudges that the will of William Broistedt, deceased, was a valid will in respect to the trust provisions therein contained.</p> <p>Also an appeal by the infant defendant, Viola Bertsch, from that portion of the said judgment containing the prohibitory provision above set forth.</p> <p>The judgment appealed from was rendered in an action brought to declare certain portions of the will of William Broistedt, deceased, invalid, in that they unlawfully suspended the ownership of personal property. The testator gave his estate to his executors upon trust for the following uses and purposes:</p> <p>' “ To collect and receive the rents, income and profits of all my estate, real and personal, and after paying therefrom all taxes, assessments and other charges upon my real estate, and keeping the buildings and improvements thereon insured and in proper repair, to apply the net income arising from my estate to the use of my wife Caroline during the term of her natural life, or so long as she shall remain unmarried. In case my said wife shall remarry after my decease, then I direct my said executors and trustees to provide for and pay over to her, from and after such remarriage and during her natural life, the sum of five thousand dollars per annum, which last-mentioned income shall be all she shall have or receive from my estate from and after such remarriage. And I do hereby declare that the provision herein made for my said wife is intended to be, and is, in lieu and bar of her dower and third in my estate.</p> <p>“ That at the death or remarriage of my wife I authorize, empower and direct my executors and trustees, or such of them as may assume the execution of the trusts hereby created, to divide my estate into six equal parts or shares, and invest the same separately on bond and mortgage or in United States G-overment or State securities, and apply the net income of one of said equal sixth parts or shares to the use of my daughter Amelia Bertsch, wife of Peter Bertsch, during her natural life, and at her decease to pay, divide and distribute the principal of such equal sixth part or share to and among the lawful issue of my said daughter Amelia, equally. And upon the further trust to apply the net income of one other of the said equal sixth parts or shares to the use of my daughter Augusta during her life, and at her decease to pay, divide and distribute the principal of such last-mentioned equal sixth part or share to and among the lawful issue of my said daughter Augusta, equally. And upon the further trust to apply the net income of one other of said equal sixth parts or shares to the use of my daughter Caroline during her life, and at her decease to pay, divide and distribute the principal of such last-mentioned equal sixth part or share to and among the lawful issue of my said daughter Caroline, equally. And upon the further trust to apply the net income of one other of said equal sixth parts or shares to the use of my daughter Mena during her natural life, »nd at her decease to pay, divide and distribute the principal of such last-mentioned sixth part to and among the lawful issue of my said daughter Mena, equally. . And upon the further trust to apply the net income of one other of the said equal sixth parts or shares to the use of my son Henry Broistedt during his natural life, and at his decease to pay, divide and distribute the principal of such last-mentioned sixth part or share to and among the lawful issue of my said son Henry, equally. And upon the further trust to apply the net income of one other of the said equal sixth parts or shares to the use of my daughter Hannah during her natural life, and at her decease to pay, divide and distribute the principal of such last-mentioned sixth part or share to and among the lawful issue of my said daughter Hannah, equally. In case either or any of my children shall die before me or before the death or remarriage of my wife, or in case any child or children shall hereafter be born to me, who shall survive the death or remarriage of my wife, then it is my will that my executors, upon the death or remarriage of my wife, instead of dividing my estate into six equal parts or shares, as above provided, shall divide my estate into so many equal parts or shares as may be necessary to provide one for the use of each of my children then living, and one for the descendant or descendants then living of either or any of my children who may have died before the decease or remarriage of my said wife and invest the same separately as above provided, and designate and set apart one of such shares for the use of each of my children then living, and one for the descendant or descendants of each of my children who may have died leaving issue them surviving {per stirpes and not per capita). And upon the further trust .to apply the net income of each share set apart for my children as aforesaid to the use of the child for whom it shall he designated during his or her natural life, and at the decease of the child for whom it shall be set apart as aforesaid, to pay, divide and distribute the principal to and among the lawful issue of such child equally, as and when such issue respectively attain the age of twenty-one years. And upon the further trust to pay, divide and distribute the share designated and set apart for the descendant or descendants of any child- who may have died before the death or remarriage of my wife, to and among such descendants equally as and when they respectively attain the age of twenty-one years.”</p> <p>One of the children of the testator died previous to the death of the widow.</p>