Volume 7 — E.H. Smith

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The tax imposed by chapter 399 of the Laws of 1892 on taxable transfers of property is not upon the property itself, but upon the transfer of the clear market value of such property. (In re Hoffman, 143 N. Y. 329; In re Merriam, 141 N. Y. 484 ; In re Swift, 137 N. Y. 77; In re Cullum, 5 Misc.

• The nature of the proceeding and the facts, so far as material, are stated in the opinion. The beneficiaries took by virtue of the execution of the power of appointment contained in the will of Catharine Langdon. The power of appointment was executed by the will of Walter Langdon.

Appeal by husband from judgment.convicting him of murder in the second degree, and by wife from judgment convicting her of murder in the third degree.

<p>1. Homicide—Self defense.</p> <p>When one believes himself about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack, if in his power so to do, and the right of attack for the purpose of self defense does not arise until he has done everything in his power to avoid its necessity.</p> <p>2. Criminal law—Interpreters.</p> <p>Where the district attorney objects to the swearing of a second interpreter and states that one of the counsel for the defendant is acquainted with and understands the Italian language, but the counsel referred to states that his knowledge of the language is limited, and that he is not able to converse with the witnesses in the various dialects which they use, the court does not err in refusing such appointment where the record does not show any lack of ability or integrity upon the interpreter’s part.</p> <p>3. Same—Section 528 of Criminal Code.</p> <p>Section 528 must be construed in connection with § 542 of the Criminal Code.</p> <p>4. Same—Instruction.</p> <p>Where the proof establishes that the decedent stood in front of the defendant while he had his pistol in his hand, threatening to kill the decedent, from a half a minute to two minutes, the fact that the court took out his watch and illustrated to the jury a minute of time, while presenting the question whether there was sufficient time for such a degree of deliberation and premeditation as would constitute the crime of murder in the first degree, is not error.</p> <p>5. Same—Misconduct of jury.</p> <p>It is not sufficient ground for a reversal that the jury, while in charge of two officers, attended church though the topic of the sermon was the prevalence of crime, where the officers, as soon as they discovered that anything might be said which would prejudice the jury, at once left the church with them, and the court out of extreme caution instructed them that no opinion expressed by the pastor should have the slightest weight or influence upon their minds, but that their verdict must be based solely upon the evidence produced before them,</p> <p>6. Indictment—Common law counts.</p> <p>An indictment in common law form, stating the facts constituting the crime and charging the killing to have been done willfully, feloniously and with malice aforethought, is sufficient to sustain a conviction of murder in the first degree, if the proof as to the manner of the commission of the crime brought it within one of the statutory definitions.</p>

<p>Appeal from a judgment convicting defendant of murder in the first degree and from an order denying a motion for a new-trial.</p>

The nature of the action and the facts, so far as material, are stated in the opinions. The defendants’ exception to the findings of fact by the court that the conveyance to Williams was a sale of the interest of the defendant Morganstern in said premises is not well taken. (Bradstreet v. Clarke, 12 Wend. 602; Hitchcock v. Dundas, 12 How. [U. S.] 271.) The deed by Scheu, as trustee, cannot be attacked collaterally in this action.

The facts, so far as material, are stated in the opinion. The will of the testator gives to his widow the net income of $12,000 of his estate for her life, this income or use of his entire estate, up to $12,000, being expressly set in the place of dower interest in his real estate. An annuity of $720 was not given or intended. (D. D. Bank v. A. L. I. & T. Co., 3 N. Y. 344; Brown v. Hiatts, 15 Wall. 177; Morrison v. Hoffe, 5 Eng.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The instrument on which the claim was based never had any legally enforceable quality. . It was a promise to pay without consideration for the promise.

This was an action brought by the plaintiff as administrator of the estate of his infant son, Charles, to recover damages for his death, which he alleged to he due to the negligence of the defendant. The defendant operated an electric street railroad in the city of Buffalo and the accident in question occurred on October 17tli, 1892, in the middle of the day, upon Seneca street.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was not entitled to recover because of the utter absence of evidence, direct or circumstantial, that the deceased was free from contributory negligence, and defendant’s motion for a nonsuit should have been granted for this reason.

On the 27th of September, 1893, the defendant was indicted “ for that the said George Nelson, on or about the 7th day of December, 1892, and on divers other times before and after that date, * * * under promise of marriage, did feloniously, wrongfully, and willfully seduced and have sexual intercourse with one Fannie A. Moore, * * * then and there being an unmarried female of previous chaste character.” In June, 1895, he was tried, convicted, and sentenced to state’s prison…

The facts, so far as material, are stated in the opinion. The structures assessed for taxation were liable to assessment in 1896 unless they then belonged to the mayor, aldermen and commonalty of the city of New York.

This action was brought by the plaintiff as assignee for the benefit of creditors of Mortemore and Lawrence Allison, doing business in Canisteo, Steuben county, to recover for the conversion of a quantity of boots and shoes. The defendants are the Citizens’ Bank of Hornellsville and the sheriff and deputy sheriff of Steuben county, and they justified the taking of the property under an execution issued upon a judgment in favor of the bank against Isaac Allison.

The facts, so far as material, are stated in the opinion. The verdict was abundantly supported by the evidence, and there is no possible ground for the claim that it was against the weight of the evidence. (People v. Conroy, 97 N. Y. 62; People v. Cignarale, 110 N. Y. 27; People v. Kerrigan, 147 N. Y. 210; People v. Sliney, 137 N. Y. 570.) Ho error was committed in the proceedings upon the trial to the prejudice of the defendant.

<p>1. Accident Life Insurance—External Yiolence — Drowning. A death caused by the action of water, such as the drowning of a bather, is a death from external violence, within the meaning of a policy insuring against death from personal bodily injuries, through external, violent and accidental means.</p> <p>2. Provision in Policy for Examination of Body—Exercise of Bight within Reasonable Time. When a contract of accident insurance provides that the insurer shall be permitted to examine the body of the insured in respect to any alleged cause of death, when and so often as its medical adviser may require, without specifying any time within which permission to examine may be availed of, the option to examine must be exercised, in the absence of circumstances excusing delay, as soon as possible after receipt of notice of death; and the insurer is not at liberty to wait indefinitely or for any unreasonable length of time.</p> <p>3. - Right of Examination of Body, on Reasonable Belief of Death from Excepted Cause. It seems, that if it should appear that, after interment, circumstances or facts coming to the knowledge of the insurer warranted a reasonable belief that death was occasioned by means or causes excepted from the contract of insurance, a reasonable construction of a provision permitting the insurer to examine the body of the insured when and so often as its medical adviser might require, would authorize the insurer to insist upon an' exhumation and dissection of the body.</p> <p>4. Refusal to Permit Examination of Body, as Defense to Action on Policy — Unreasonable Delay in Demanding Examination. Where, on the death of the insured under a contract which provided that the insurer should be permitted to examine the body of the insured when and so often as its medical adviser might require, immediate notice of death was given, followed by an interval of five days before interment, without any demand by the insurer to examine the body until ten days after its interment, and nothing appeared showing that the insurer had reason to believe in the existence of any excepted cause of death, held, that the provision permitting an examination of the body should have been availed of immediately upon receipt of notice of death, and that the delay in the demand for an examination was, as matter of law, so unreasonable, in the absence of any facts or circumstances excusing it, as to deprive the insurer, when sued upon the policy, of any defense based upon a refusal of its demand to examine the body.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence was not sufficient to submit to the jury the question whether an agreement had been made between the defendant and the president of the bank that the defendant would not be held liable upon the note, and the plaintiff’s motion, at the close of the case, should have been granted. (Mead v. Nat.

This action was brought for the partition of real property and it involves the construction of the will of William W. Clay, deceased.

<p>1. Street Surface Railroads — New York City — Sale of Franchise for Extensions. The common council of the city of New York cannot, under section 93 of the Railroad Law (L. 1890, ch. 565, as amended by L. 1892, chs. 306, 676, and L. 1893, ch. 434), make a valid sale of more than one extension of an existing street surface railroad at the same sale, to be struck off upon one bid, when the extensions are separated from each other in such a way that they can only be operated together over the line of the existing railroad.</p> <p>2. Connection of Extensions by Use of Existing Railroad Line. Two extensions of an existing street surface railroad are not to be deemed to constitute but one extension and franchise, and so legally subject to sale at one bid, because they are to be connected by an intermediate section of the main line of the applicant and there is included in the sale by the common council a consent of the applicant that in case any other corporation becomes the purchaser of the extensions it shall have the right in perpetuity to use the connecting tracks: and a sale of such extensions by the common council to the applicant at the same sale and on one bid does not vest in it the right to build the extensions.</p> <p>3. Condition of Sale — Cash Payment in Addition to Percentage. The common council has no power to impose as a condition of its consent to the sale of an extension or extensions of an existing street surface railroad, that such railroad, if a purchaser, shall pay into the city treasury a sum of money in cash, within a certain time after the right to build the extension has been struck off to it, in addition to the percentage of gross receipts bid by it upon such sale.</p> <p>4. Offer by Applicant of Payment in Addition to Percentage. The want of power in the common council to impose the payment of a cash sum as a condition of the sale of extensions of an existing railroad is not cured by the offer of the applicant to pay such sum in addition to the percentage of gross receipts bid by it; and such offer does not validate a sale to the applicant under such condition or entitle such sale to vest in the applicant a right to build the extensions.</p> <p>5. Condition as to Rate of Fare. A condition in the resolutions of the common council authorizing the sale of an extension of an existing railroad, that "No passenger shall be charged more than five cents for a continuous ride from or to the above branch or extension,” together with a provision that “ All laws or ordinances now in force, or which may be modified or adopted, affecting the surface railroads operating in this city shall be strictly complied with, and especially article IY of the General Railroad Law,” is a substantial compliance with that portion of section 93 of the statute which directs that but oue fare shall be exacted for passage over such branch or extension and over the line of the railroad which shall have applied therefor.</p> <p>6. Invalid Sale op Franchise por Extensions. Although the above condition as to fare is a compliance with the statute, a sale, under the resolutions containing it, of extensions of an existing railroad to the company owning such road is invalid and does not vest in such company the right to build the extensions, where the sale includes several franchises in one group and is subject to the condition of payment of a gross sum, in addition to percentage upon receipts.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The interlocutory judgment was erroneous and should be reversed so far as it appoints a receiver of the real and personal property of the original defendant, Isaac 0.

<p>Appeal from a judgment convicting defendant of murder in the first degree.</p> <p>Frank C. Conroy was ^convicted of murder in the first degree, and appeals.</p>

Appeal, by certification, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 26, 1897, and from an interlocutory judgment entered upon the decision of that court reversing an interlocutory judgment entered upon the decision of a Special Term, and sustaining the plaintiffs’ demurrer to so much of the answer as set up chapter 383 of the Laws of 1896 as a defense herein.

Pending the appeal to the Court of Appeals the plaintiff died, and his administrators were duly substituted as respondents. This action was commenced in May, 1890, by William You-mans, a practicing attorney residing in the village of Delhi, against the defendants, who published a newspaper and carried on a printing business at the same place, to recover damages for the publication of certain printed matter alleged to be a libel upon the plaintiff.

The facts, so far as material, are stated in the opinion. The motion to dismiss should be denied. This is an appeal from an order finally determining a special proceeding and presents a question of law for review. (Code Civ. Pro. § 190; 19 Am. & Eng. Ency. of Law, 646.) The rights of succession in the present case are taxable.

The nature of the action and the facts, so far as material, are stated in the opinion. Held: that the premises were included in the deed from the board of trustees to De Forest, still the defendants were the legal owners ; they were in possession with an equitable right to retain such possession and whether the defendants are entitled to equitable affirmative relief or not, the plaintiff cannot succeed in the action.

Appeal by the executors of Thomas Harward, deceased, from a judgment of the General Term of the Supreme Court in the first judicial department, entered nunopro timo as of March 1, 1895, which modified and, as so modified, affirmed a final judgment entered upon a decision of the court on trial at Special Term. The action was brought by the executors of Lizzie H. Perkins for the construction of her will. The will was as follows: “ I, Lizzie JET.

<p>1. Negligence—Passenger Elevator — Duty of Owner. While it is the duty of the owner of a building, operating a passenger elevator therein, to provide a safe and suitable car, appliances and other machinery for the operation of the elevator and for the accommodation of passengers, and to exercis'e strict diligence in that respect, the law does not impose upon him the duty of providing for the absolute safety of passengers, so that they shall encounter no possible danger or meet with no casualty in the use of the appliances provided.</p> <p>2. Ordinary and Reasonable Care. As to the surroundings and other structures forming a part of a passenger elevator plant, in respect to which less serious results are to he expected from a defect than in respect to the machinery and appliances for motion and control, the owner is responsible only for the want of ordinary and reasonable care, in cases where danger is not to he apprehended if due and proper care is observed by the passenger.</p> <p>3. Elevator Shaft Inclosed by Grating — Absence of Proof of Negligence. A passenger elevator shaft in a fire proof office building was inclosed by bars forming a grating, with doors in the shaft and none in the car. A passenger sprung from the rear of the car while in motion, caught hold of the shaft bars, fell between them and the floor of the car, and was fatally injured. In an action against the owner for damages, it was shown that the elevator was inclosed in the manner customary in such buildings; that elevators so inclosed had been in use for years without a similar accident, and that doors in the shaft, instead of in the car, were usual. Held, that, in the absence of anything showing that the owner could have anticipated or foreseen any such result from the manner in which the elevator was inclosed, he was not chargeable with negligence by reason thereof.</p> <p>4. Infants. A girl nine and a half years old is not of such tender years as to be held, as matter of law, non sui juris; and the burden of establishing the fact of inability to care for herself as a passenger in' an elevator, so as to call for unusual attention or instructions, rests upon the party alleging it.</p>

<p>Negligence—Master, and Servant—Duty oe Master. It is the duty of the master to guard his servant against such accidents in performing his work as, by the exercise of reasonable care, can he foreseen as liable to occur; but he is not liable for a personal injury sustained by the servant through an accident which prudent men, proceeding with reasonable caution, would not ordinarily have foreseen or anticipated.</p>

Appeal by Margaret Gallister, widow of decedent, from so much of a judgment of the General Term of the Supreme Court in the fifth judicial department, entered December 11, 1895, as reversed that part of the decree of the Surrogate’s Court of Ontario county which adjudged that she was entitled to recover, individually, a certain sum of money from the estate of John Gallister, deceased.

The nature of the order and the facts relating thereto are stated in the opinion. The Court of Appeals has jurisdiction of the appeal from the order of the Appellate Division of October, 1896. (Code Civ. Pro. § 190, subd. 2; Const.

Appeal by Pliny T. Sexton, as executor of the last will and testament of Lucinda Rogers, deceased, from a judgment of the. General Term of the Supreme Court in the fifth judicial department, entered January 22,1896, which affirmed a decree of the surrogate of Wayne county.

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered upon an order made March 20, 1896, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. The grounds of the motion are stated in the opinion.

<p>1. Taxpayer’s Action — New York City Dock Department. The “ Act for the Protection of Taxpayers ” (L. 1881, ch. 531, as amended by L. 1893, ch. 301), does not authorize a lessee of the wharfage of a bulkhead from the city of New York to maintain a taxpayer’s action to enjoin the dock department from evicting him from land belonging to the city, near the bulkhead hut not appurtenant thereto, occupied by him without right, on the theory that the eviction would he an “illegal official act” on the part of the dock department, although assuming to act in the interest of the city, merely for the reason that the control of the land is vested in some other department of the city government.</p> <p>3. The Taxpayers’ Act—“Illegal Official Acts.” The authority conferred by the Taxpayers’ Act upon a private individual to maintain an action to enjoin “illegal official acts” extends only to acts which, if performed, would produce a public injury, and the remedy for which by injunction was previously available to the attorney-general or some body or officer acting on behalf of the public.</p> <p>3. Equity — Injunction. Equity will not lend its aid by injunction to protect a trespasser in the possession of realty belonging to a municipality, against eviction by a municipal department invested with large authority over municipal property and assuming to act in the interest of the municipality, merely because the proposed action of the department is beyond its authority, but will leave the occupant to his remedy, if any, in an action for damages in case he is evicted.</p>

<p>1. Decedent’s Estate ■— Memorandum Made by Decedent as Admission of Debt. A memorandum made by a decedent, retained in liis possession and found deposited with his will, directing his executors to pay the person named therein a certain sum, followed by the words, “I owe him that,” but not stating any particular consideration, although it has no legal or binding force either as a direction or as an obligation is competent evidence, against the decedent’s estate in favor of the person named therein, as an admission of a valid debt for the sum stated.</p> <p>2. Proof of Liability of Decedent. Where the person named in such a memorandum makes a claim against the decedent’s estate in the sum stated therein, for services rendered the decedent, which is contested •and the oral- proof shows the rendition of services which might create a liability on the part of the decedent to the claimant if so intended by the parties, but fails to show that they were rendered at the request of the decedent with the expectation of compensation, the memorandum may, in the absence of any other explanation, be connected by inference with the services and so furnish the element lacking in the oral proof.</p>

<p>1. Municipal Civil Service— Clerk of Police Court of Syracuse. The clerk of the Police Court of the city of Syracuse is a member of the civil service of the city and not of the state.</p> <p>2. Not a Confidential Office. The office of clerk of the Police Court of the city of Syracuse, the duties of which are indicated in detail by the city charter and not determined by the police justice in whom the power of appointment is vested, and which consist of administering oaths, taking depositions, adjourning proceedings in the absence of the justice, giving a bond to the city for faithful performance, keeping a record of proceedings, filing and preserving papers, and receiving and paying over to the city treasurer all costs and fines, is not a confidential office and, hence, is not exempt from classification in the competitive schedule of the municipal civil service regulations or from the constitutional provisions giving a preference to veterans.</p> <p>3. Evidence as to Duties of Office. Since the duties of the clerk of the Police Court of the city of Syracuse are defined by statute, it is not competent for the police justice, in a quo warranto proceeding for the determination of the title to the office of clerk under the Civil Service Law, to give his opinion as to what are the duties of the clerk.</p> <p>4. Quo Warranto — Scope of Judgment — Right of Veteran to Appointment. When the eligible list resulting from a municipal competitive civil service examination for a non-confidential position included in the competitive schedule of the municipal regulations contains the name of one veteran, and another person is appointed, a written appointment of the veteran to the position by the appointing officer is necessary before the court in quo warranto proceedings instituted on the relation of the veteran can decree that he he inducted into office. In the absence of such appointment the jurisdiction of the court is exhausted when it determines that the defendant is unlawfully in possession of the office and orders a judgment of ouster, thereby creating a vacancy; but the relator will he entitled to compel his appointment by mandamus.</p> <p>5. Evidence — Sufficiency of Certification of Copy of Municipal Civil Service Regulations—Objection. In order to render available on appeal an objection to the admission in evidence of a copy of municipal civil service regulations certified by the secretary of the state civil service commission, on the ground that the certificate fails to state that the copy had been compared with the original, as prescribed by section 957 of the Code of Civil Procedure, the specific defect must have been pointed out on the trial; a general objection that the paper was not properly certified is not sufficient.</p> <p>6. Certification of Copy of Municipal Civil Service Regulations. The civil service regulations of a city, on file in the office of the state civil service commission, may be sufficiently proved for use in evidence by the production of a copy certified by the secretary of the state commission in substantial compliance with section 933 of the Code of Civil Procedure.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The sale of the premises under the judgment was valid, and did not become invalid by any subsequent action of the court. (Gerard on Titles [3d ed.], 780; Woodcock v. Bennet, 1 Cow. 734; Manning’s Case, 8 Coke, 284; Holden v. Sackett, 12 Abb.

The facts, so far as material, are stated in the opinion. The right or power to dispose of one’s property by will is not a natural right, hut is given by statute and entirely derived from and granted by the state.

This action was brought by the plaintiff, as executrix, to recover the proceeds of certain policies of insurance upon the life of her testator, alleged to have been paid to the defendant by mistake. The facts, so far as material, are stated in the opinion. Upon the agreed and undisputed facts the policies of insurance, the proceeds of which are in contest in this case, were partnership property.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was entitled to a judgment upon the undisputed facts.

This action was commenced in FTovember, 1895. A temporary injunction and an order to show cause why it should not be continued were also obtained. Upon the return of the order a hearing was had at Special Term and the injunction was continued. From that order the defendants appealed to the General Term where it was reversed. The case subsequently came on for trial, when the complaint was dismissed.

<p>1. Presumption op Legitimacy. The law presumes the legitimacy of children; and this presumption applies to every case where the question is at issue, and is controlling whenever not inconsistent with the facts, proved.</p> <p>2. Question op Fact. When there is evidence on the one side of mere reputation, which is casual, remote and uncertain, and the presump, tion of legitimacy on the other, it becomes a question of fact.</p> <p>3. Application op Presumption. In a proceeding for the distribution of a decedent’s estate, it was shown that the decedent and the deceased mother of certain claimants were half sisters, being children of the same mother by different fathers, and that the grandmother had married the decedent’s father after the birth of -the claimants’ mother, and there was no evidence showing that she had not been married previously to the latter’s birth. The trial court held that the claimants’ mother waa presumed to be a legitimate child, and that the burden of establishing her illegitimacy was upon those who asserted it. Held, that the presumption, of legitimacy was properly applied.</p>

The New York Jockey Club is a corporation which was duly organized in 1894, under chapter 213 of the Laws of 1891. Held: or has said association the right to admit as spectators those whom it may elect, and to exclude others solely of its own volition ? “ 2d. If the meetings of the racing association be open to the public generally, can such association lawfully exclude a person solely because that person has upon a former occasion failed to observe…

<p>1. Action for Construction of Will, not an Action for Partition. An action brought by testamentary trustees to construe a will which directs them to divide the estate into shares, in which they simply seek to perfect the trust estates or shares claimed to have been created by the will, under the advice and with the assistance of the court, is not an action for partition.</p> <p>2. Estate in Remainder — Time of Testing. The law favors the vesting of estates; and the words “ from and after ” or like expressions as relating to the termination of the life estate do not postpone the vesting of the estate in remainder until the death of the life tenant, but rather refer to the period when the remainderman would become entitled to the estate in possession.</p> <p>3. Will Construed. The will of a testator having eight children gave the residuary real estate to the executors in trust to divide into eight equal parts, being one share for the use of each child, and to pay over to each the income of his or her share during life, and stated that “on the death of any child, then the said trust as to his or her said one-eighth share shall cease, and I then devise the said share to my grandchild or grandchildren who may he the lawful issue of my said child so dying, and to his, her or their heirs and assigns forever.” The will further stated that this demise was to he construed so as to open and let in any grandchildren born after the testator’s death, and that in the event of the death of any of the testator’s children without issue, then the share so set apart for the use of such child should be subdivided among the testator’s children then living and the income therefrom paid to the respective children for life. The testator’s eight children survived him and were living, and several of them had issue who were also living, at the time the will was construed. Held, that eight separate and legal trust estates were created and are now in existence; that each of the grandchildren became vested at the testator’s death with an absolute estate in remainder in the-share of his or her parent, subject to the contingency of opening to let in any grandchildren horn' after the testator’s death; that as to the shares of the. testator’s children having issue, the fee vested at the moment of the testator’s death in the grandchildren, subject to the life estate of the parent; and that there was no unlawful suspension of the power of alienation for more than two lives even as to the shares of such children of the testator as might die without issue.</p> <p>4. Alienable Life Estate. The will gave the testator’s widow a life estate in certain realty, which on her death was to come into the trust. Held, that this did not create an unlawful suspension of the power of alienation, as the life estate had no connection with the trusts created by the will, and was alienable at any time by the widow.</p> <p>5. Power to Sell. The will gave an express power to the executors and trustees to sell the testator’s unimproved and unproductive real estate, hut did not provide in terms for a power to sell his productive real estate. Held, on reading the will as a whole, that the duty imposed upon the executors as trustees to divide the real estate into equal shares carried with it the implied power to sell the productive real estate for the purpose of apportioning the prescribed shares, under the supervision of the court as to details.</p> <p>6. Scope of Subsidiary Trust. A codicil directed that the income of the one-eightli share of the estate apportioned for the use of the testator’s son II., or so much thereof as might, he necessary, should be applied for the education and support of H.’s children during his lifetime, and stated that in the stead of the executors named in the will as trustees “so far as relates to the said share only, I do hereby nominate, constitute and appoint my said son H. trustee of said share.” Held, that the share of which H. was made trustee was the one-eighth of the net income of the estate, and not one-eighth of the testator’s real estate.</p> <p>7. Res Adjudicata. A decision of a surrogate construing a testamentary disposition of personal property is not res adjudicata in an action for the construction of the will in reference to the real estate.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was not the intention of the framers of section 5057 of the United States Bevised Statutes that it should apply to the conceded facts in this case. The section has no application to suits growing out of the dealings of the assignee with the estate after it comes to his hands.

new trial. The nature of the action and the facts, so far as material, are-stated in the opinion. The trial court correctly applied upon the debt of $3,636.41 a pro rata part of the-money realized from the foreclosure sales upon the four mortgages given by Riley to McLean as collateral security for the said debt, in connection with other debts owing by Riley to McLean.

<p>1. Corporations — Voluntary Dissolution — Action against Receiver — Pleading. When a complaint against the receiver of a corporation, appointed by an order or decree made in a proceeding under the statute for the voluntary dissolution of corporations (3 R. S. 467, et seq.), avers that the corporation 'has been dissolved, and the averment is not denied in the answer, the fact that the defendant was appointed receiver on final dissolution sufficiently appears.</p> <p>3. Establishment op Disputed Claims. The method prescribed by the statute authorizing proceedings for the voluntary dissolution of corporations, for ascertaining the validity of disputed claims by summary reference (3 R. S. 470, § 73), is not exclusive, and the court may authorize an action for that purpose against the receiver who disputes the validity of a claim.</p> <p>3. Action against Receiver — Statute op Limitations. If an action against a voluntarily dissolved corporation, in form an action upon promissory notes, is in fact an action to ascertain whether the plaintiff isa creditor by reason of the notes, entitled to share in the distribution of the estate of the corporation, it is not barred by the six years’ Statute of Limitations, unless the allowance of the claim in a proceeding under the statute would have been barred.</p> <p>4. Receiver a Trustee—Suspension op Statute op Limitations. The receiver of a voluntarily dissolved corporation is, by force of the statute (2 R. S. 469, § 67), a trustee of the property of the corporation for the benefit of all its creditors ; and the six years’ Statute of Limitations does not run in his favor against claims not barred at the time of his appointment, so long as the trust is open and continuing, and has not been repudiated or denied.</p>

McMaster, as ancilliary receiver of the L. & C. Wise Company, to first pay the claim of the receiver of taxes in the city of ISTew York. The facts, so far as material, are stated in the opinion. The claim of the receiver of taxes, representing the state, is entitled to a preference. (Toller on Executors, 259; 8 Bacon’s Abridg. 79; Giles v. Grover, 9 Bing. 135; Const. N. Y. art. 1, § 16; U. S. v. State Bank, 6 Pet. 29-34; U. T. Co. v. I. M. R. Co., 117 U. S. 434; In re C. Ins.

<p>1. Debtor and Creditor — Assignment of Claim against United ■ States—Defeasible Bill of Sale. If a contractor with the United States for the furnishing of goods to the government, in good faith assigns the contract and all the moneys due or to become due thereon, to certain of his creditors, to secure an honest debt or liability, and surrenders his manufacturing plant to them, in order that they may fill the contract and reimburse themselves by a sale of goods to be manufactured by them, and files a bill of sale of the property transferred, absolute in form, but with the understanding that in case their debt and the claims for which they are liable are paid the property shall revert to the assignor, the assignment, although it can be disregarded by the government, is good as-between the parties and vests the assignees, as against the contractor ot any of his other creditors having notice of the assignment, with the right to future payments under the contract, for goods produced by their labor- and capital, subsequent to and not affected by the bill of sale, and delivered by them to the government.</p> <p>3. Receiver in Supplementary Proceedings — Erroneous Application of Fund. If a receiver appointed in proceedings supplementary to execution against the assignor of such a contract, on judgments in. favor of creditors other than those to whom the contract had been assigned, receives, after notice of the assignment, payment from the government for goods produced by the assignees of the contract, and of his own motion applies it upon the judgments under which he was appointed, he may be compelled, on an accounting in the state court by which he-was appointed, to refund the amount to the assignees.</p> <p>3. Duty and Liability of Receiver in Supplementary Proceedings. It is the duty of a receiver in supplementary proceedings, when other parties than the creditors he represents make a claim upon him for-the fund in his hands, or any part of it, to take the advice and direction of the court. If he undertakes to determine for himself that the fund belongs to the creditors in the judgments under which he is appointed, in preference to other parties who claim it and of whose claims he has notice, he makes the distribution at his peril.</p>

The facts, so far as material, are stated in the opinion. The intention of the legislature was the formation of corporations empowered to light the streets, etc., of the town; not any given streets, not some streets, nor even “ streets,” but the streets; i. e., all the streets.

The order, from the affirmance of which this appeal is taken, adjudged the defendant in contempt in violating that part of the final judgment in this action which restrained her from at any time “ erecting or maintaining any obstructions ” in a right of way across her premises, extending from the southerly end of a highway near the residence of the defendant, southerly to a three-rod road bounding the northerly line of plaintiff’s land.

The provisions of the terms of sale must be construed most strongly against the defendant who prepared them. (Pomeroy on Contracts, §§ 366, 367, 368; Gibson v. D'Este, 2 Y. & C. 542; Graves v. Wilson, 4 Jur. [N. S.] 471; Dykes v. Blake, 4 Bing. [N. C.] 463; Jones v. Edney, 3 Campb. 285.) The purchaser cannot he compelled to do anything more than, or to take something different from, that which is provided by the clear meaning of the terms of sale.

<p>1. Criminal law—Insanity.</p> <p>It is not every weak or disordered mind that is excused from the consequences of crime. It is only those who at the time of committing the criminal act, were laboring under such a defect of reason as either not to know the nature and quality of the act they were doing or not to know that the act was wrong.</p> <p>2. Same—Summoning jury.</p> <p>The sheriff does not conform to the provisions of § 1048 of the Civil Code, where he notifies the persons, drawn as jurors to attend at a term of court, by mailing a notice thereof to them, inclosing a card to he signed and returned, admitting service of the notice.</p> <p>3. Same.</p> <p>But the error, in such manner of notification, is harmless, if all the jurors drawn who are qualified to sit, personally appear in court at the time ap • pointed.</p> <p>4. Same—Computation op time.</p> <p>The statutory construction act does not materially change the existing rule for the computation of time, except, perhaps, to more definitely fix the event from which the count is to be made.</p> <p>5. Same.</p> <p>The day to be excluded, under the act, in making the reckoning, is the day of the specified event, from which the days are to be counted, and, in making the count back from that time, the day, on which the required act was performed, may properly be included.</p> <p>6. Same—Evidence—Blood.</p> <p>A witness, on the trial of an indictment for homicide, may testify to the effect that a certain spot indicated by him upon the lantern used on the night of the homicide, was blood, where he previously testified that he saw the lantern on the night or morning in question, had his attention called to it at the time and that then the blood was fresh. It does not require an expert to distinguish blood from other things or objects with, which every person is familiar.</p> <p>7. Same—Impeachment.</p> <p>Where the district attorney, in examining defendant’s witness, enters upon a new field, he makes him his own witness, and cannot properly lay the foundation for contradicting him, upon that subject.</p> <p>8. Same—Court of appeals.</p> <p>The Court of Appeals has the power to order a new trial for the reception of incompetent evidence even though no exception has been taken; but this power is exercised only in cases where manifest injustice has been done, and it is apparent that a different result might have been reached.</p> <p>9. Same—Affirmance.</p> <p>The Judgment will be affirmed, where no harm has resulted to the defendant from the admission of incompetent evidence.</p>

<p>1. Criminial law—Procurement.</p> <p>A person who, by counsel or assistance, procures the commission of the crime is equally responsible as the actor ; and when it is shown that he advised or procured its commission, the fact that he may for some reason, have been incapable of committing it himself, is not controlling, or even material.</p> <p>2. Same—Evidence—Declarations—Conspiracy.</p> <p>When it is alleged that persons have conspired together to commit an offense, and the proof tends- to establish the existence of the conspiracy, the acts áre declarations of each of the conspirators are binding upon, and to be regarded as the acts of, the others. The question of their guilt becomes one of fact to be determined by a jury.</p> <p>3. Same—Section 29 of Penal Code.</p> <p>The effect of the provision in § 29 of the Penal Code is to permit the pleader to allege an act as the act of the defendant when he procures it to be performed by another; but it nowhere forbids setting out facts showing that the acts of another are, in law, the acts for which a defendant is responsible. The allegation of such facts are equivalent to a charge that the act was that of the defendant.</p> <p>4. Same—Indictment—False pretenses.</p> <p>An indictment for obtaining property by false pretenses is sufficient, if it states and negatives one false pretense ; and if proved, the materiality and influence of it is a question for a jury, unless it clearly appears to be immaterial.</p> <p>5. Same.</p> <p>- The purpose of the averment of pretenses in the indictments is only to give the defendant notice of what may be proved against him. The mode of obtaining the property may not be pleaded.</p> <p>6. Same.</p> <p>An indictment, which contains no defect that affects any substantial right of the defendant, and gives him full notice of what is to be proved against him, is sufficient.</p> <p>7. Same—Jurisdiction.</p> <p>Where some of the fraudulent acts and pretenses, alleged in the indictment, were made and performed in one, though others were made and performed in another, county, the offense is partly committed in the former county, andthe court has jurisdiction in that county.</p> <p>8. Same—Setting out deed.</p> <p>An indictment for false pretenses, which contains a description of the premises, a statement of the consideration, the name of the grantor, and the value of the deed, suffie iently sets out the deed.</p> <p>9. Same—Averment oe value.</p> <p>An indictment, which charges that the defendant, with force and arms, feloniously obtains and stole the deed mentioned therein, and the title to the land of the complaint, which was of the value of $1,500, clearly asserts the value of the deed.</p> <p>10. Same—Statement op pact.</p> <p>The mere expression of an opinion, which is understood to be only an opinion, does not render the person expressing it liable for fraud. But, where the statements are as to value or quality, and are made by a person knowing them to be untrue, with intent to deceive and mislead the one to whom they are made, and he is thus induced to forbear making inquiries which he otherwise would, they may amount to an affirmation of fact, rendering him liable therefor.</p> <p>11. Same—Other transactions.</p> <p>On the trial of an indictment for obtaining property by false representations or pretenses, the allegation that they were made with an intent to defraud; may be proved by transactions with other parties, which tend to show a fraudulent scheme to obtain property by devices similar to those practiced upon the complainant, provided the dealings are sufficiently connected in point of time and character to authorize an inference that the transaction was in pursuance of the same general purpose.</p> <p>12. Same.</p> <p>Evidence of the commission of one crime is not inadmissible because it tends to prove another crime, if it is otherwise material and relevant.</p> <p>13. Same—Conspiracy.</p> <p>A conspiracy may be proved by circumstantial evidence; and parties performing disconnected acts, contributing to the same general result may, by the proof of circumstances and their general connection with each other, bé satisfactorily shown to be confederates in the commission of an offense.</p> <p>14. Same—Declarations.</p> <p>Where several persons are engaged together in furtherance of a common illegal purpose, the acts and declarations of one confederate, made in pursuance of the original concerted plan and with reference to the common object, are competent evidence against the other conspirators, if they form part of the res gestae and are not narratives of past transactions.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The parol contract between Olive Y. Lobdell and Gideon, her husband, was taken out of the Statute of Frauds by a part performance, and became an enforceable obligation.

Proof of fraud was wholly wanting, and the court should have nonsuited the plaintiff as requested. (Starr v. Peck, 1 Hill, 270; 2 Pars, on Cont. [5th ed.] 784; Hewlett v. S. C. S. Co., 84 Hun, 248; Marsh v. Falker, 40 N. Y. 562; Shultz v. Hoagland, 85 N. Y. 464; Constant v. University of Rochester, 133 N. Y. 640.) There can be ho recovery without fraud. (Kountze v. Kennedy, 147 N. Y. 124; Hotchkins v. T. Nat. Bank, 127 N. Y. 337 ; Brackett v. Griswold, 112 N. Y. 467;.

The nature of the action and the facts, so far as material, are stated in the opinion. The appeal in this, action properly lies to this court. (Code Civ. Pro. §§ 190, 191, 1337; People ex rel. v. Barker, 152 N. Y. 417.) Brassel and his sureties are not liable, as there was no such improper act or omission of duty on his part as is covered by the bond.

Appeal, by permission, from an order of tire Appellate Division of the Supreme Court in the first judicial department, entered November 6, 1896, which reversed an order of Special Term denying a motion to compel the purchasers at a foreclosure sale to complete their purchase. (See 151N. Y. 660.) The following questions were certified to the Court of Appeals: First.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 14, 1897, which reversed an order of Special Term in a habeas corpus proceeding, denying the relator’s motion to confirm the report of a referee awarding to the relator the custody of her children, and granted a motion for a final order confirming the referee’s report.</p>