Volume 66 — New York Supreme Court Reports

<p>Eminent domain — when a railroad may acquire land Inj eminent domain, although it already owns land proper and mailable for the purpose.</p> <p>In proceedings taken for tlie purpose of condemning land for the purposes of a train-house and passenger station for the petitioner’s railroad, it appeared that while such a structure as was proposed was greatly needed for the safety and convenient accommodation of the public, it might be erected upon land in the vicinity already owned by the petitioner, and not used for the purpose of its incorporation, but leased by it to a company which had erected and maintained on the ground for several years various buildings, such as are usual at popular seaside resorts for the accommodation and entertainment of the public, and had laid out the ground in an ornamental manner; that, with these additions to the natural attractions of the place, the beach at Charlotte, where this land was proposed to be taken, had become a great lake-side resort, trains running to and fro between the beach and Rochester during the day and evening, in the season, carrying at times as many as 15,000 people daily.</p> <p>Held, that as the result of using for this purpose the land already owned by the railroad company would be to destroy, in a large measure, the usefulness and attractions of the place as a public resort, and to that extent to render unnecessary the terminal facilities sought to be provided for the accommodation of the public, that the railroad should be authorized to condemn the land sought to be taken in these proceedings.</p>

<p>Insurance policy — death through ‘ ‘ lifting or over-exertion ” — waiver by the company of a provision as to notice of the accident.</p> <p>In an action upon a policy of accident life insurance, which provided that “ no claim shall be made under this certificate when the death or injury shall have been caused in dueling, fighting, wrestling, lifting or by over-exertion,” it appeared that the insured was a bridge-builder, and that while engaged in raising, with the men in his employ, the bent of a bridge “ without any distress to himself and as if he was able to do it,” a post slipped from its position, the top of the bent settled back, an unexpected weight was thrown upon the pike-poles in the hands of the men and the insured was either struck in the side by the end of his pole or subjected to a strain of great severity, was disabled from the moment of the accident and died about ten days thereafter.</p> <p>The only question submitted to the jury was whether the injury and death came within the exception of the policy, as being caused by “ lifting or over-exertion,” in respect to which the court charged the jury, in substance, that the lifting or over-exertion, to take the case out of the contract, must be a voluntary and unnecessaiy act of the insured, one from which injury might reasonably be anticipated, and which might, in the exercise of reasonable care, have been avoided, and that an effort to lift or over-exertion, put forth in an emergency of danger, as, for instance, in the effort to save one’s self from being crushed by a descending weight, was not within the exception of the policy.</p> <p>Held, that the charge was correct.</p> <p>Where a defense was interposed, in an action brought to recover upon a policy of insurance, that the assured had not complied with a provision of the policy, to the effect that “ failure to give such immediate notice, mailed within five days from the happening of such accident, shall invalidate all claims under this certificate,” it appeared that, within a month after the accident, and about two weeks after the death; the defendant having been informed of the case, sent an agent to the widow “to see her about the insurance,” and that he told her that her failure to give the notice “ did not make any difference because he (the insured) was dead, if he had been hurt and was going to doctor up it would have made a difference,” and subsequently the president and secretary of the insurance company addressed letters to the person representing the plaintiff, requesting him to advise the plaintiff not to make any claim, and announcing their decision, evidently intended to be final, that she had no claim by reason - of the manner in which the injury was received and of the cause of death.</p> <p>Held, that, under these circumstances, a question was presented for the jury whether the acts and declarations of the defendant did not indicate an intention to waive the objection of a failure to serve a notice of the accident within the time mentioned in the policy.</p> <p>Objection was raised by the defendant that the evidence on the subject of the cause of death was not, in the language of the policy, “ direct and affirmative.”</p> <p>Held, that the language of the policy should not be construed to take the case out of the ordinary rules of evidence, and it was sufficient that the evidence under such rules established the fact.</p>

<p>Aliens — the children not torn at the time of the death of a testator a/re not covered by 2 Revised Statutes, 57, section 4— what interest they take in case of a devise to all the children as a class — action for the construction of a will — who is concluded by the judgment therein.</p> <p>A testator, by his will, gave certain property to his daughter, Eliza McGillis, for life, and after her decease to her husband, John McGillis, for life, if he should survive her, and further provided as follows: “ And from and after the decease of both my said daughter and her said husband, I give, devise and bequeath the remainder, or fee simple in said property, to the lawful issue of my said daughter then living, in such relative proportions (if such issue consist of more than one person) as they would, by the laws of the State of New York, have then inherited or taken the same from her, in case she and they were then native-born citizens of said State,' and she had then died intestate, lawfully seized of said property in fee simple ”</p> <p>At the time of the death of the testator the daughter resided in Canada with her husband, who was a citizen of Canada.</p> <p>Thereafter an action was brought in the Supreme Court of the State of New York by the executor under the will against the daughter, her husband and the children then born of their marriage, which children were all aliens and residents of Canada, and against the other parties in interest, for the purpose of obtaining a construction of the will.</p> <p>In this action it was decreed “ that the provisions in said will and codicil in favor of the said John McGillis, the husband of the said Eliza, and of the said Charlotte McGillis, Elizabeth McGillis and Reginald McGillis, infant children of the said Eliza McGillis, * * * so far as they relate to the real estate thereby attempted to be devised to them, the same are void by reason of the alienage of the said John McGillis and the said infant children.”</p> <p>Subsequently an action for the partition of certain of said real estate was brought, to which, in addition to the above-mentioned parties, there were made parties defendant four children of said Eliza and John McGillis, who were born subsequently to the death of the testator.</p> <p>The statute (2 R. S., 57, § 4), provides that “ every devise of any interest in real property to a person who, at the time of the death of the testator, shall be an alien not authorized by statute to hold real estate, shall be void. The interest so devised sliall descend to the heirs of the testator; if there he no such heirs competent to take, it shall pass under his will to the residuary devisees therein named, if any there he, competent to take such interest.”</p> <p>Meld, that this statute did not apply to the case of the children horn subsequent to the death of the testator, but only to those who were in existence at the time of his death.</p> <p>That such children, horn subsequent to the death of the testator, took not one-half of the real estate so devised to Eliza McGillis for life, but the whole thereof. That the provisions of the decree, in the action brought by the executor to. obtain a construction of the will, were not binding upon those children of Eliza McGillis who were not made parties to that action and were born subsequent to such decree.</p> <p>Qucere, whether, in an action brought for the construction of a will, where the ■ court declares one of its provisions void, and, in effect, that the deceased died intestate as to the real property intended to be devised by such void provision, the court can adjudicate in regard to the rights of the lieirs-at-law in such property, as to which the deceased is adjudged to have died intestate.</p>

Appeal by the Lee Arms Company from so much of an order entered, in the above-entitled matter, in the office of the clerk of the county of Herkimer on the 29th day of September, 1890, as denied the prayer of the petition of the said Lee Arms Company.

<p>Will — a condition that if a beneficiary contests it he shall lose his bequest — is mid as to an infant contestant.</p> <p>A testator, by a codicil to his will, set apart and placed in the hands of his executors, as trustees, a sum of money, the income of which he directed should be paid to his daughter during life, the principal 'to be divided, at the time of her death, among her issue, if any; if none, then to become a part of the residuum otherwise disposed of.</p> <p>By another paragraph of the same codicil it was stated that if any beneficiary named in his will contested it, in person or by another, the testator revoked all provisions contained in said will in favor of the person contesting it; and that if such contestant should be his daughter, then he devised to his wife the sum above mentioned given to tmstees for the benefit of the said daughter.</p> <p>Upon the return day of the citation issued for the proof of the will, the surrogate, upon his own motion, appointed a guardian ad litem for the daughter, then an infant, and thereafter said guardian vigorously contested the probate of said will, all proceedings and appeals in regard thereto being concluded, however, before said daughter became of age.</p> <p>Held, that the contest must be deemed to have been made by the daughter, although the actual steps were taken by the guardian.</p> <p>That as the provisions of the will for the daughter constituted a conditional bequest to the executors, as trustees, determinable in the event that the daughter, in person or by another, contested the will, the action taken upon her part, had she been of age, would have forfeited the bequest.</p> <p>That as the daughter was an infant, and had in the first instance merely submitted her rights to the court, the provision of the will forfeiting the rights of a contestant was, as to her, an attempt to subvert the course of judicial proceedings, and to deprive the court of the right and duty imposed upon it by law, in all •cases, to institute, of its own motion, proper proceedings for the protection of infants, and that as to the daughter the condition was void as against public policy.</p>

<p>Costs — on taking the deposition of a party or witness under a stipulation— Code af Civil Procedure, sees. 879, 3351, sub. 3.</p> <p>Where the parties to an action, instead of taking the deposition of a party or of a witness under an order of the court, pursuant to sections 870 and 871 of the Code of Civil Procedure, stipulate in writing, under section 879 of said Code, that such depositions he taken before a judge or referee at a time and place specified in said stipulation, the successful party is entitled to tax ten dollars costs for each deposition so taken. (Code of Civil Pro., § 3351, sub. 3.)</p> <p>Newman y. Qreiffif, Civ. Pro. R., 363), disapproved.</p>

<p>Mcecutors and administrators — when they may sue as such for goods sold after the death of the decedent — an objection of want of legal capacity to sue must be taken by demurrer or by answer.</p> <p>'Where a testator, by his will, empowers his executors, in their discretion, to continue his business, and they do so, and subsequently resign, and an administrator,, with the will annexed, is appointed, such administrator may, in his representative capacity, sue the purchasers of goods, sold in the conduct of such business by the executors, to recover their price.</p> <p>Where such an action is brought, and all the facts bearing upon the capacity of the administrator, with the will annexed, to sue appear upon the face of the-complaint, the defendant must take an objection to the plaintiff’s suing in such capacity, by demurrer or by answer, otherwise it is waived. (Code of Civil Pro., §§ 488, 499.)</p>

<p>trustee — what “estate” he is authorised to mortgage or sell bt/ chapter 257, Laws-of 1886 — grounds for the application.</p> <p>Tlie “ estate ” referred to in chapter 257, Laws of 1886, providing that the Supreme Court shall have power to authorize a trustee to mortgage or sell real estate, held in trust hy him, whenever it shall appear to the satisfaction of the court or judge “ that it is for the hest interest of said estate so to do, and that it is necessary and ■for the benefit of the estate to raise by mortgage thereon, or by a sale thereof, funds for the purpose of preserving or improving such estate,” is not the general estate of the decedent or creator of the trust, but only such estate as is held by the trustee under the provisions of the trust.</p> <p>Upon such an application by a testator’s widow to mortgage real property, it -.appeared that the money to be raised by the mortgage was desired to pay ■ taxes and assessments thereafter to be levied, and to pay to the petitioner an annuity in arrears, which was alleged to be charged upon .the testator’s- - real estate.</p> <p>Held, that no grounds were shown justifying the application.</p>

<p>Negligence — meamre of damages — proximate came.</p> <p>Where the negligence of a corporation is the proximate cause of an injury to a person, it is liable for the actual damages which naturally followed therefrom, if the person injured acts in respect to the treatment of the injury in good faith and without a serious disregard of consequences.</p> <p>A young woman sprained her ankle by stepping through a defective walk upon a bridge in a town. The injury was of an obscure character at first, and she was ' advised by a doctor, as she testified, to walk upon the foot. This increased the difficulty and resulted in a probably incurable inflammation of the lining membrane of the ankle joint. It appeared that in using the foot she acted in good faith, and not through carelessness or recklessness. No medical evidence was given tending to show to what extent her conduct had aggravated the difficulty. Held, that a recovery of $4,500 was not excessive.</p>

<p>Certificate of deposit — one demanding payment must surrender the certificate.</p> <p>In an action brought to recover deposits made with a bank, for which the bank had issued certificates of deposit to the plaintiff, it appeared that such certificates were in the possession of the husband of the plaintiff’s sister, and that the husband claimed title to them as administrator of his wife.</p> <p>Held, that as the plaintiff had not the possession of the certificates, and, therefore, could not surrender them for cancellation, he could not recover.</p> <p>A party liable upon commercial paper, which is transferable by delivery without indorsement, is entitled to demand that upon its payment the obligation be surrendered to him.</p>

<p>Guardian and ward — upon an application for the payment of the board of infante, contested by the gua/rdian, a surrogate has jurisdiction to act — Gods of Giuil Procedure, secs. 2846, 2472, sub. 7.</p> <p>Under section 2846 of tlie Oode of Civil Procedure, authorizing a surrogate to make an order directing the application by the guardian of the property of' an infant, for its support and education, in such amount as to the surrogate-seems proper, out of the income of the property or, where that is inadequate, out of the principal, and under subdivision 7 of section 2472 of said Code, giving a surrogate power to direct and control the conduct of guardians and to settle-'their accounts, the surrogate is not ousted of jurisdiction to direct payment of a claim, made for an infant’s hoard, hy the fact that the guardian contests such claim.</p> <p>The rule, obtaining in certain accountings by executors and administrators, under which a surrogate cannot pass upon a disputed claim, has no application to the case of a guardian.</p>

Appeal by the plaintiff Daniel Engel, as administrator of Frederica Engel, deceased, from a judgment, entered in the clerk’s office of the county of Monroe on the 17th day of February, 1885, in favor of the defendant, after a trial at the Monroe Circuit before the court and a jury, at which a verdict was rendered in favor of the defendant.

Appeal by tbe defendant, tbe City of Buffalo, from au interlocutory judgment, entered in tbe clerk’s office of Erie county on tbe 5th day of September, 1890, upon a decision made at Special Term in said county upon a trial of issues of law, which judgment overruled tbe demurrer interposed by said defendant to tbe complaint.