Volume 8 — E.H. Smith

<p>1. Corporation Tax — Foreign Corporations—Conditions Precedent to Jurisdiction. The jurisdiction to tax foreign corporations under chapter 542, Laws of 1880, as amended by chapter 501, Laws of 1885, depends upon the existence of two concurring conditions, namely, that the corporation shall be “ doing business in this state,” and that its capital or some portion thereof shall have been “employed within this state.”</p> <p>2. Foreign Investment Company— Capital not Employed within this State. A foreign corporation, whose capital is wholly invested in the stock and bonds of an independent foreign corporation doing business wholly out of this state, whose whole income is derived from such investment, and which maintains a leased office, with furniture, officers and clerks, in this state, where it receives and distributes the dividends or income derived from its investment, which constitutes its whole business, is not subject to taxation under the act of 1880-1885, since, although it is “doing business in this state,” no part of its capital is “employed within this state,” within the meaning of the statute.</p>

This action was brought to recover damages for the death of plaintiff’s intestate alleged to have been occasioned by the negligence of defendant. The facts, so far as material, are stated in the opinion. The proof offered by the plaintiff did not contain facts from which negligence on the part of the defendant could be legitimately inferred.

Appeal, by certification, from an order of the Appellate Division of the Supreme Court in the first judicial department, made May 7, 1897, which affirmed an order of Special Term overruling exceptions to the report of a referee and confirming the same. The nature of the action and the facts, so far as material, are stated in the opinion.

The tax imposed upon the relator was in pursuance of the provisions of chapter 542 of the Laws of 1880, as subsequently amended, before 1896. The relator is a domestic corporation, and during the year ending November 1, 1895, was engaged in business in this state. On the twenty-third of that month it made a report to the comptroller, stating fully its business transactions within the state.

The facts, so far as material, are stated in the opinion. The appraiser properly made his appraisal of the value of the trust fund and the legacy to Yale College as of the'date of the remarriage of the decedent’s widow, April 16,1896. (In re Milward, 27 N. Y. Supp. 288; In re Stewart, 131 N. Y. 274; In re Hoffman, 143 N. Y. 330; In re Curtis, 142 N. Y. 219; In re Roosevelt, 143 N. Y. 120.) The transfer tax is not a tax on property, but on the right of succession.

The facts, so far as material, are stated in the opinion. The surrogate had no power to direct the imprisonment of the appellant for the lion-payment of costs and disbursements, as awarded by the Appellate Division of the Supreme Court. (Sherwin v. People, 100 N. Y. 358; Code Civ. Pro. §§ 2, 14, 16, 1991, 2007, 2481; Watson v. Nelson, 69 N. Y. 536; Riggs v. Cragg, 89 N. Y. 479; G. P. & R. Mfg.

<p>1. Tax—Savings Banks — Surplus. When the surplus of a savings bank, under the statutes of its domicile, belongs in equity to, and is subject to distribution among, its depositors, it is to be deemed a liability as well as an asset, and comes within the principle that deposits in savings banks are debts that can be used to offset or extinguish assessments against the bank upon personal property.</p> <p>3. Foreign Savings Bank—Tax on Bank Shares. For the purposes of local taxation in this state of a savings bank of another state, upon stock of banks in this state held by it (L. 1883, ch. 409, § 313), the question whether its surplus belongs in equity to its depositors, so as to constitute a debt or liability available as an offset to the assessment, depends upon the statutory provisions of its own state.</p> <p>3. Connecticut Savings Bank. When, under the statutes of its domicile regulating the operations of a savings bank and governing its obligations and duties (as, under the statutes of Connecticut governing the Croton Savings Bank), its surplus or profits from investments must, after reaching a certain amount and at certain times, be distributed to the depositors, such surplus belongs in equity to the depositors and is within the purview of the statute (L. 1857, ch. 456, § 4) exempting deposits in savings banks from taxation against the bank as personal property.</p>

The facts, so far as material, are stated in the opinion. An exemption of property accorded to the respondent by the statutes of Connecticut would not avail to exempt such property in the state of Hew York. (Catlin v. Trustees of Trinity College, 113 N. Y. 142; People ex rel. v. Coleman, 135 N. Y. 231.) Savings banks are not wholly exempt from taxation under the laws of the state of Hew York.

The facts, so far as material, are stated in the opinion. In the absence of any legislation of any sort relating to the office of district attorney in the county of Kings, subsequent to January 1, 1895, the term of office of Mr. Backus, who was elected in November, 1895, would not expire until the 31st day of December, 1899.

The nature of the action and the facts, so far as material, are stated in the opinion.

This action is brought in form to partition real estate situated in the city of New York, of which William H. Cooper died seized, and involves the construction and interpretation of his will. The testator left a widow, two children and five grandchildren. The following are the material portions of the will: “ Second.

<p>1. Criminal Law—Jury—Bias.</p> <p>A juror cannot be disqualified by asking questions with reference to his views, or the effect that would be produced upon his mind by certain evidence which may be introduced on the trial.</p> <p>2. Same.</p> <p>The fact that the juror does not approve of the carrying of a revolver or other concealed weapon in violation of the statute, does not necessarily disqualify him from serving upon a jury, or prevent him from determining the guilt or innocence of the accused as an impartial juror.</p> <p>3. Same—Evidence.</p> <p>Declarations or statements, made by another in the presence of a party, when admissible, are taken, not as evidence in themselves, but to enable the court or jury to understand the force and effect that should be given to the reply made thereto by the party affected.</p> <p>4. Same.</p> <p>Where the defendant admits the shooting and puts his defense upon the fact that he was, at the time it was done, unconscious and not criminally responsible for his acts, his actions, conduct and statements, shortly afterward, become competent, as bearing upon his mental condition.</p> <p>5. Same.</p> <p>If the defendant, at the time he was charged with the crime, knew that the shooting had been done by himself, and denied it, it is a circumstance which the jury may properly consider as bearing upon the question of his guilt and his mental responsibility.</p> <p>6. Same—Charge.</p> <p>The fact that the trial judge in defining murder in the first degree included statutory provisions, inapplicable to the case, does not present reversible error, where, though he did not in specific terms withdraw such provisions from the jury, he limited their consideration to the killing with deliberation and premeditation.</p> <p>7. Same—Good character.</p> <p>Good character may create a doubt against positive evidence, but this doubt is created only when, in the judgment of the jury, the character is so good as to raise a doubt as to the truthfulness or correctness of the positive evidence.</p> <p>8. Same—Exhibits with juby.</p> <p>Where the court, at the retirement of the jury, inquires if there is any objection to the jury taking the exhibits, the clothing of the deceased, which was made an exhibit upon the trial, is deemed included in the inquiry, so as to demand an objection from the defendant in case he does not wish the clothing to be left with the jury.</p>

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

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third "judicial department, entered September 21, 1896, reversing a judgment in favor of defendant entered on a nonsuit granted at Circuit and granting a new trial.</p> <p>This action was brought to recover the sum of $8,000 which the plaintiff’s testatrix is alleged to have lent to the defendant on or about the second day of May, 1892. The answer contains in substance a general denial and several affirmative defenses not material on this appeal.</p> <p>Upon the trial it appeared that prior to May, 1892, the testatrix, who was the wife of the defendant, owned several parcels of real estate, and that she had conveyed one piece to her husband, upon which there was a mortgage for $8,000 outstanding and unpaid. Mr. Cronin wished to pay off the mortgage and Mrs. Cronin borrowed $8,000 by mortgaging other real estate belonging to her in order to lend it to him for that purpose. He signed the bond, to which the mortgage last named was collateral, with his wife. She refused, however, to execute the mortgage until he signed and delivered to her a written instrument of which the following is a copy:</p> <p>“ This agreement, made this second day of May, in the year of our Lord one thousand eight hundred and ninety-two, between John H. Cronin and Martha A. Cronin, of the city of Troy, county of Rensselaer and state of Hew York, witnesseth, that in consideration that my wife, Martha A. Cronin, has this day mortgaged certain premises of hers, situate upon the northwest corner of Fulton and Mechanic streets in said city of Troy, to Samuel P. McClellan, as executor of the will of Jane Calkins, deceased, for the sum of eight thousand dollars, at my request, and has loaned to me said sum so borrowed as aforesaid, now, in consideration thereof, I, John H. Cronin, husband of the said'Martha A. Cronin, do hereby covenant and agree that if it shall occur to me to die before the decease of the said Martha A. Cronin, the said sum of eight thousand dollars so procured as aforesaid shall be a charge upon my estate, and shall be paid as a debt owing by me, I having become a party to the bond given upon such borrowing; and I further agree that in such case my executor or administrator, or personal representatives, shall convey to the said Martha A. Cronin, surviving me, all my one-half interest in the premises known by street numbers 107 Fourth street and 2260 Fifth avenue, in the city of Troy, to have and to hold unto the said Martha A. Cronin, her heirs and assigns forever.</p> <p>“But if the said Martha A. Cronin shall not survive me, then this agreement shall be of no effect.</p> <p>“ In witness whereof I, the said John H. Cronin, have hereunto set my hand and seal in duplicate, this 2d day of May, 1892.</p> <p>“ J. H. CRONIN, [l. s.] ”</p> <p>This instrument was executed in triplicate and duly acknowledged, one of the originals being delivered to Mrs. Cronin, another to the mortgagee, while the third was retained by the defendant. Upon the trial the plaintiff offered said agreement in evidence, and furnished some slight proof of a loan independent of that paper, but when he rested the trial court dismissed the complaint upon the ground that Mrs. Cronin intended the so-called loan to her husband as a gift in case she -died before him. The Appellate Division reversed the judgment upon the ground that as Mrs. Cronin neither signed the instrument nor expressed any intention to forgive the debt, ■and as by her death the instrument had by its terms become ■of no effect, the parties were remitted to such obligations as arose from the loan and the failure to pay it. The defendant thereupon appealed to this court.</p> <p>It was made a condition precedent to her right of recovery that the wife should survive her husband; and as the occurrence of that event is of the essence of the contract, it cannot be ignored in determining the rights of the parties. (Clason v. Bailey, 14 Johns. 484; James v. Patten, 6 N. Y. 9; Justice v. Lang, 42 N. Y. 494; Mason v. Decker, 72 N. Y. 595; Egleston v. Knickerbacker, 6 Barb. 458; Drake v. Seaman, 97 N. Y. 230; Mentz v. Newwitter, 122 N. Y. 491; Horn v. Hanser, 56 Minn. 43; Van Dorn v. Robinson, 16 N. J. Eq. 256; Miller v. Cameron, 45 N. J. Eq. 95.)</p> <p>The death of Mrs. Cronin did not operate as a payment of the loan of $8,000, nor change its character so as to constitute it a gift. (French v. Carhart, 1 N. Y. 102; Coleman v. Beach, 97 N. Y. 545, 554; Russell v. Allerton, 108 N. Y. 288.) There is no question of usury in this case. (4 R. S. [8th ed.] 2512; H. Ins. Co. v. Dunham, 33 Hun, 415.)</p>

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 24, 1896, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The grounds of the motion are stated in the opinion.

The nature of the action and the facts, so far as material,, are stated in the opinion.

This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The plaintiff was injured by the running away of a team of horses belonging to defendant, driven by its servant upon a street in the city of Cohoes.

order of the Appellate Division of, the Supreme Court in the first judicial department, entered July 20, 1897, which affirmed so much of an order of the surrogate of the county of New York as assessed and fixed a transfer tax upon the interest of Caroline A. James in the estate o£ John H. Beach, deceased. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. Assuming that Georgia Fargo, by her will, attempted to create trusts in favor of the Squiers children, and that such trusts are void by reason of suspending the power of alienation during lives not in being at the death of William G-.

The facts, so far as material, are stated in the opinion. Upon the assumption that the indebtedness held by Mr. Welch as assignee is an indebtedness of the new corporation, we insist that the claim of the executrix should be allowed, both upon the $6,000 note and upon the account. (P. Ins. Co. v. Church, 81 N. Y. 218.) The report of the referee, and the order confirming the same, are res adjudícala as to the validity of the claim of the First National Bank, assigned to Welch.

The nature of the action and the facts, so far as material, are stated in the opinion. The intention of the testatrix in the 2d clause of the 3d codicil was merely tO' devise life estates to her own surviving children in the one-fifth originally given to Jefferson for life, and not to disturb the remainders vested in fee in Jefferson’s children, nor to disinherit Jefferson’s two children.

<p>1. Statute of Frauds ■—Pleading. The defense of the Statute of Frauds, to be available, must he pleaded.</p> <p>2. Action on Oral Contract. In an action on an oral contract within the Statute of Frauds, where the complaint does not disclose the nature of the contract, whether oral or written, the defendant must plead the statute in order to avail himself of the objection.</p> <p>3. Denial of Contract. The mere denial, in the answer, of the contract alleged in the complaint, when the character of the contract is not disclosed, does not entitle the defendant to attack the validity of the contract under the Statute of Frauds, upon the trial.</p> <p>4. Consideration. The breaking up of one’s home, disposing of property at a sacrifice, removing to another locality, and there going into possession of another’s premises and furnishing him with a home, at his request and direction, constitute a good consideration for a contract on the latter’s part to convey his premises.</p> <p>5. Action for Damages for Breach of Oral Contract to Convey Realty. If, in an action for damages for breach of a contract to convey realty, the complaint does not disclose whether the contract was oral or written, and the answer does not set up the Statute of Frauds, no objection to proof of an oral contract, or to the validity of such a contract, under the statute, can be raised by the defendant upon the trial; and if an oral contract, on a good consideration and to the effect alleged in the complaint, is proved, it will warrant a recovery of damages for non-perform-once the same as if it had been written.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Whatever the intention of ¡Roberts may have been with respect to the premises to be covered by the mortgage to the Mutual Life Insurance Company, nothing passed to the mortgagee under said, mortgage except what was described therein.

<p>1. Appellate Division—Beversal—Hew Trial. The Appellate Division, upon reversing a judgment, must grant a new trial unless it is-manifest that no possible nroof applicable to the issue could entitle the respondent to recover.</p> <p>2. Specific Performance. Buies governing the enforcement of specific performance of contracts for the sale of land collated.</p> <p>3. Partition—Befeeeb’s Deed. If a referee’s deed in partition, covers premises other than -those described in the complaint and directed by the decree to be sold, it is without authority and passes no title to the purchaser.</p> <p>4. Vendor and Purchaser —- Marketable Title — Material Defects. The title of the vendor of land is not a marketable one, and he cannot compel the purchaser to accept it, where'it is based, as to a portion of the premises, upon a description in a referee’s deed in partition which covers premises other than those described in the decree of sale, and as to another portion he shows no record title, and it is found as an inference, not opposed to the weight of evidence, from special facts and circumstances, that such defects are material.</p> <p>5. Materiality of Defect in Title — Question of Fact. The question as to the materiality of a defect in the offered title, in an action for specific performance, is one of fact when it depends upon, and is an inference to be drawn from, circumstances; and the Appellate Division is not authorized to reverse a decision of the trial court upon such question of fact, where there is no such preponderance of proof against the result reached by it as discloses, with reasonable certainty, that its conclusion was erroneous, or against the weight of evidence.</p> <p>6. Estoppel. There is no principle by which the unknown act of a referee in partition, in describing in his deed other premises than those described in the complaint and decree, estops the parties to the partition action from disputing the correctness of the deed; and a marketable title in the grantee of such a deed cannot be based upon any such estoppel.</p> <p>7. Correction of Defects in Title. The purchaser of real estate from one whose title is based upon a judicial sale is entitled to a marketable title, free from reasonable doubt, and is in nowise bound to remedy it by proceedings to correct defects in the judicial sal^.</p> <p>8. Adverse Possession. The mere fact that the vendor and his predecessor in title had been in the undisturbed possession of the premises described in a contract of sale for more than twenty years, without proof that the entry was under a particular conveyance, exclusive of any other right, does not of itself warrant a determination that their title has become perfect through adverse possession under a written conveyance, as against the true owner.</p> <p>9. Title Subject to Litigation. The purchaser of real estate ought not to be compelled to take property, the possession of which he may be obliged to defend by litigation where the title may depend upon a question of fact, as, where he would be required to resort to paroi evidence to sustain the vendor’s title by adverse possession.</p> <p>10. Variance in Description of Land. A variance in the description of land in instruments essential to the title, such as between stating the place of beginning'in one as the “northwest” corner of certain streets and in the other as the “ southwest ” corner, cannot be disregarded or changed, in support of an offered title, in an action to compel the purchaser to perform bis contract, where there is no sufficient description in the instrument sought to be changed to plainly indicate the property intended and also to show that there is an error in the description which may be disregarded and the property still clearly identified.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in dismissing plaintiff’s complaint and refusing to allow the case to go to the jury. (Gregory v. Mayor, etc., 113 N. Y. 416; Alker v. Mayor, etc., 27 Hun, 413; MoCoy v. Mayor, etc., 46 Hun, 268; Ryan v. Mayor, etc., 91 Hun, 470.) The letter from the division engineer requesting the resignation of Ryan did not constitute a discharge. (Vanderhoef v. A. Ins.

This action was brought by the plaintiff, as the testamentary guardian of Louise Condit and Sallie Barnes Smith, infants of tender years, to compel a corporation which is alleged to hold certain securities in trust for them, to account for the interest by it collected thereon and for other relief.

<p>1. Rules of Court — Amendments. The amendments of the rules of the court are analogous to the amendments of the statutes and should receive the same construction.</p> <p>2. Amendments —• Construction. The rule of statutory construction — that when a statute is amended by enacting that it “is amended so as to read as follows,” and then incorporating the changes and additions, with so much of the former statute as is retained, the part which remains unchanged is to be considered as having been continued the law from the time of its original enactment — applies to amendments of the rules of the court.</p> <p>3. Rules for Admission of Attorneys — Amendments. The amendments made Decembers, 1895, to the Rules for the Admission of Attorneys, which retained unchanged the following italicized clauses in subdivision 7 of rule 6, adopted October 22, 1894: A law student whose clerlcship or attendance at a law school has already begun may, at his option, file or produce, instead of the certificates required by these rules, those required by the rules of the Court of Appeals, adopted October 28, 1892, did not have the effect of making the words “has already begun,” refer to the date of the taking effect of the amendments, namely, January 1, 1896, but left them continuing to speak as of the date when they originally went into effect, namely, January 1, 1895.</p> <p>4. Rules of 1892. The privilege of proceeding under the rules of 1892, conferred by subdivision 7 of present rule 6, does not apply to any law student whose clerkship or attendance at a law school commenced after the 1st day of January, 1895, but all such students must conform to the later rules.</p> <p>5. Regents’ Certificate. A law student whose clerkship or attendance at a law school commenced after the 1st day of January, 1895, cannot be admitted to examination for admission, upon producing a regents’ certificate under the rules of 1892.</p>

<p>Appeal from a judgment convicting defendant of murder.</p>

<p>1. Evidence—Non-expert.</p> <p>A question, which is not one calling for the opinion of an expert, but relates merely to facts which are within his knowledge, is not obnoxious to the objection that the witness has not been shown to be an expert.</p> <p>3. Same.</p> <p>On a trial for murder where defect of reason is interposed as a defense, witnesses for the prosecution, who examined the defendant immediately after the homicide, and qualify as medical experts and state the grounds of their opinions, may testify that, in their opinion, he was simulating or shamming unconsciousness.</p> <p>8. Same—Physician .</p> <p>Where the testimony of a physician is sought to be excluded under the provisions of section 834 of the Civil Code, the burden is upon the party seeking to exclude it to bring the case within its provisions. He must make it appear, not only that the information which he seeks to exclude was acquired by the witness while attending the patient in a professional capacity, but also that it was necessary to enable him to perform some .professional act.</p> <p>4. Criminal law—Trial—Striking out evidence.</p> <p>Where the defendant consented to the striking out of evidence from the-case, he is not in a position to avail himself of an error committed in its admission, or in striking it out and directing the jury to disregard it.</p> <p>5. Same—Non-expert.</p> <p>Upon a question of sanity or insanity, lay witnesses may he examined as-to the acts and conduct of the party, and may, upon giving such evidence, he permitted to testify whether such acts or conduct impressed them as-rational or irrational.</p> <p>6. Same—Order on trial.</p> <p>The provisions of section 388 of the Criminal Code are a mere formulation of the rules which previously existed in regard to the order of proof in civil and criminal cases; but it is within the discretion of the court to-vary these rules. It is within the discretion of the judge to admit testimony hearing upon the original case at a later stage of the trial, and unless such discretion is abused, it constitutes no error.</p> <p>7. Same—Witness—Credibility.</p> <p>The fact that the evidence, given by a witness, is contradictory of that previously given by him and is improbable, is no cause for the reversal of the judgment, especially where the verdict was not dependent upon that evidence alone.</p> <p>8. Same—Insanity.</p> <p>There is no authority or principle of the law of evidence that will adr mit proof of insanity or other disease by mere reputation in the family.</p> <p>9. Same—Charge.</p> <p>Where all supposed errors, contained in the principal charge, are com pletely eliminated from the case by the court in charging as requested by the defendant, and the jury is instructed in a manner which prevents any misapprehension by it as to the law controlling the question of insanity, the exceptions to the principal charge will not justify the court in disturbing the judgment.</p> <p>10. Same—Evidence—Admission.</p> <p>A party’s acquiescence, to have the effect of an admission, must exhibit some act of voluntary demeanor or conduct. When the claimed acquiescence is in the conduct or in the language of others, it must plainly appear that such language or conduct was fully known and fully understood by the party before any inference can be "drawn from his passiveness or-silence. The circumstances must not only he such as afford him an opportunity to act or to speak, but also such as will properly or naturally call for some action or reply from men similarly situated.</p> <p>11. Same.</p> <p>When a person is asleep, intoxicated, or deaf, or a foreigner unable to-understand the language employed, he cannot be prejudiced by. statements-- . made by others in bis presence.</p> <p>18. Same.</p> <p>If his condition as to consciousness is a matter of dispute, the statement in his presence is incompetent, though the people are entitled to go to the jury on the question whether the defendant was really unconscious or merely shamming.</p> <p>13. Same—Harmful error.</p> <p>The burden of showing that an error in the admission of incompetent testimony is harmful is not upon the appellant. It rests with the respondent to show that it was harmless and could by no possibility have prejudiced the defendant.</p>

This action was commenced in the name of Edward J. Patterson and Jennie Patterson, plaintiffs. Thereafter Jennie Patterson died, intestate, bearing the name of Jennie Patterson Townsend by marriage.

The decree settled the account of Maria B. Moehring, as executrix of William G. Moehring, and directed the funds in her hands belonging to the estate of Sophie Moehring to be paid over to the chamberlain of the city of New York, unless an administrator with the will annexed of that estate should be appointed within sixty days.

Cboss-appeals from an order of the Appellate Division of the Supreme O.ourt in the second judicial department, entered August 3, 1897, which affirmed an order of Special Term vacating, on certiorari, an assessment against relator and directing the board of assessors of the city of Brooklyn to make a reassessment. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The respondent is entitled to a favorable construction of the statute in this case. (People v. Flanagan, 66 N. Y. 237.) The Latin derivation of the word “ eligible,” or the dictionary definition, will not control the broader construction given by the courts.

This proceeding was instituted to compel the assignee for the benefit of the creditors of the firm of Miller & Allen to render and settle his account. The petition was by the appellant, as receiver of the property of John P. Zimmer, who was a creditor of the firm.

The controversy in this case was submitted to the Ajipellate Division in the fourth department upon admitted facts. The submission was in pursuance of the provisions of article 2 of title 2, chapter XI of the Code of Civil Procedure, which includes sections 1279 to 1281. The facts iqion which the questions in this case arise are fully set forth in the case agreed upon.

On the 16th of May, 1893, the Rogers Manufacturing Company, a corporation organized under the laws of the state of Mew Jersey, but carrying on a lumber yard, as its sole business, in this state, made a general assignment for the benefit of creditors to Asa L. Rogers, the plaintiff in this action.

Appeal, by certification, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 11, 1897, reversing in part and affirming in part an interlocutory judgment in partition, entered upon the report of a referee. The facts, so far as material, and the questions certified are stated in the opinion.

<p>City op Buffalo — Grade Crossing Act — Commissioners of Award for Injury from Change of Grade. Under the Grade Crossing Act of the city of Buffalo, the power to measure and determine the injury, as well as to award compensation, is vested in the commissioners appointed by the court on the application of the grade crossing commissioners; and their appointment cannot be refused on the ground that the injury to abutting property, not actually taken, by a change of street grade (as, by carrying the street over a railroad subway), is apparently slight and the damages apparently of little consequence.</p>

<p>1. Replevin — Claim op Third Party to Property in Possession of Sheriff. A third party making claim to property in the possession of the sheriff under a valid requisition in an action of replevin must assert his claim by filing the affidavit required by sections 1709 and 1710 of the Code of Civil Procedure; and no action can be maintained against the sheriff for the taking or detention by him of specific property under such circumstances except in the manner prescribed by these sections.</p> <p>2. Valid Requisition — Sufficient Description. The description of the property in the affidavit accompanying the requisition in an action of replevin is sufficient, to render the requisition valid in that respect, so as to protect the sheriff from suit by a third party to recover the property, if it describes the property sufficiently to enable the sheriff to take it from the defendant and deliver it to the plaintiff.</p>

The nature of the action and the facts, so far as material, are stated in the opinion.

Charles Gr. Pomeroy, of Newark, N. T. The material portions of the will are as follows: “ First.

The defendant was indicted at a court of oyer and terminer held in and for that county in April, 1894. At the time of the alleged offense he was president of the Mechanics’ Bank of Lock-port, which was duly organized under the laws of this state, and was in general charge of its affairs. Among other books kept in the bank was one known as the tickler or cash book, which purported to show correctly the cash on hand, at the close of business on each day.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 26, 1896, affirming an order of the surrogate of Westchester county.</p> <p>Also an appeal from a judgment of the Appellate Division in the second department, entered December 26, 1896, reversing a judgment of the Special Term, Westchester county, in the action of David Verplanck, as executor and trustee, against Jotham S. Tompkins et al., for an accounting.</p> <p>Also in an action of Jotham S. Tompkins against David Verplanck, as executor and trustee, for a construction of the will of Joseph Warren Tompkins.</p> <p>The above two actions were consolidated and tried together.</p> <p>The surrogate's proceedings and the consolidated actions involve the construction of the said will.</p> <p>The provisions of the will necessary to be examined are the fourth, fifth, sixth and eighth clauses, which are as follows:</p> <p>“ Fourth. All my mills, factories, water power rights of pondage and everything appertaining thereto, situate at Kensico, in the town of North Oastle, in the said county, or elsewhere in that town which I may own at my decease, I give and devise to my executors hereinafter named, with power to take possession of, occupy, rent out and keep in repair and receive the rents and profits thereof until the same shall be sold and conveyed by my executors as hereinafter directed, and I do direct my said executors as soon as they can obtain a fair price therefor, to sell and convey the same in fee simple absolute at public or private sale in their discretion in one or more parcels as they may judge most beneficial to my estate, and out of the moneys arising from the sale thereof, to pay and discharge all liens and incumbrances thereon and all other liens and incumbrances on all or any real estate owned by me at my decease, together with all just debts owing by me at my decease; the residue of said sales I direct my executors to invest upon interest and dispose of as hereinafter directed as to the residue of my estate or the proceeds thereof.</p> <p>"Fifth. My dwelling house and about seven acres of land in the village of White Plains with all the chattels and movable property thereon, and all other lands, tenements or real estate owned by me at my decease, except so much thereof as is in this, my will, otherwise disposed of, I give and devise to my executors hereinafter named, with power to take possession of, rent out, keep in repair, receive the rents and profits thereof, until the same shall he sold and conveyed by my executors as hereinafter directed. I do hereby direct my said executors, as soon as they can obtain a fair price for the same, to sell and convey the same at public or private sale in their discretion, and the moneys arising from the sale thereof I order my executors to invest upon interest and dispose of as hereinafter directed as to the residue of my estate or the proceeds thereof.</p> <p>“Sixth. My house and lot in the city of Mew York,known as Mo. 15 Wall street, 1 give and devise to my said executors with everything appertaining thereto, with power to take possession of, occupy, rent out and keep in repair and receive the rents, issues and profits thereof as if they were owners thereof, during the lives of my wife, Sarah Walton, and my son, Jotham, but upon the express trusts and condition that during the said lives or that of the longest liver of them my said executors, as often as received, pay and distribute in equal parts, the net rents of said house and lot to my said wife, Sarah Walton, my daughter, Marion, and my son, Jotham, or the lawful issue or descendants of my said son or my said daughter, if either should die before my said wife, such descendant receiving the share of their parent, and at the decease of my said wife and son, Jotham, to deliver up to my said two children or their descendants the said house and lot which is then to belong to them in fee, but inasmuch as by fire, accident or change in the city of Mew York, it may be expedient and necessary or greatly to the interest of my estate during the lives of my said son and wife or longest liver of them to sell and convey said house and lot Mo. 15 Wall street in fee, in that event, I authorize my said executors to apply to the Supremo Court and upon proof to said court of the propriety and necessity of said sale to its satisfaction, I authorize said court to direct a sale thereof by ray said executors in fee, and the moneys arising from the sale thereof to be invested upon interest by my said executors until the death of my said wife and son or the longest liver of them and the interest and income thereof paid in ecpial shares to my said wife and son and daughter as aforesaid, and at the death of the longest liver of my said wife and son, the principal to be equally divided between my said son and daughter or their lawful descendants.</p> <p>“ Eighth. All the moneys arising from the sales of my said real and personal property in this, my will, ordered to be sold and not in this, my will, otherwise disposed of, after payment of all my just debts and liens on my said real estate and the legacy aforesaid, I order my executors to invest and keep invested on interest, on bond and mortgage, on real estate in the state of Mew York, in the stocks or bonds of the state of Mew York or of the United States, at the best interest they can obtain for the same during the life of my said wife and son or the longest liver of them, and as often as received to pay and divide equally the said interest between my said wife and son and daughter.”</p> <p>The devise to the executor created a valid express trust whereby the executor took by implication as well as by direct devise the entire estate during the lives of the widow and Jotliam, subject only to the execution of the trust. (Nicoll v. Walworth, 4 Den. 385; Brewster v. Striker, 2 N. Y. 19; Knox v. Jones, 47 N. Y. 389; Amory v. Lord, 9 N. Y. 403; Boynton v. Hoyt, 1 Den. 53; Garvey v. McDevitt, 72 N. Y. 556; Tucker v. Tucker, 5 N. Y. 408; Savage v. Burnham, 17 N. Y. 569; Radley v. Kuhn, 97 N. Y. 32.) Because of the interposition of the trust estate no portion of the estate vested in the children of the testator, or could vest in them, until the termination of the trust estate — that is, until the death of Jotham, the longest liver of the selected two lives. (1 Preston on Estates, 65; Hayes v. Good, 7 Leigh [Va], 496; Taylor v. Gould, 10 Barb. 396; Griffin v. Shepard, 124 N. Y. 70.) The word “ descendants,” used by the testator in his will, is synonymous with “ issue of the body,” and does not include collateral relatives. 'Hence, neither Marion nor Jotliam could take from the other under such description. (Hamlin v. Osgood, 1 Redf. 409; Armstrong v. Moran, 1 Bradf. 314; Van Beuren v. Dash, 30 N. Y. 393.) There is no legal presumption that Jotham will not leave descendants surviving him. He may marry and raise a family. (Apgar's Gase, 37 N. J. Eq. 501; List v. Rodney, 83 Penn. St. 483.) The trust being valid as an express trust under our statutes, limited by the two lives in being at testator’s death, the application or payment of a share in the rents and income must terminate as to each of the three cestuis <pue trust on their respective deaths. (Downing v. Marshall, 23 N. Y. 377; Monarque v. Monarque, 80 N. Y. 320; Crooke v. County of Kings, 97 N. Y. 421; 3 R. S. 3176-3180; 2 R. S. 2193.) The intention of the testator, when ascertained from the will itself, will govern in the construction of wills. (Shipman v. Rollins, 98 N. Y. 311; Smith v. Edwards, 88 N. Y. 105; Delafield v. Shipman, 103 N. Y. 463; Byrnes v. Stilwell, 103 N. Y. 458; Scott v. Guernsey, 48 N. Y. 106; Stevenson v. Lesley, 70 N. Y. 512; Matter of Baer, 147 N. Y. 348; Matter of Merriman, 91 Hun, 120; Shangle v. Hallock, 6 App. Div. 55.)</p> <p>Marion W. Tompkins having died unmarried and without issue, leaving her brother Jotham surviving, acquired no property or interest in her father’s estate which she could dispose of by a last will and testament. (1 R. S. 728, 730, §§ 55, 65; Garvey v. McDevitt, 72 N. Y. 556; Tobias v. Ketchum, 32 N. Y. 326; Tucker v. Tucker, 5 N. Y. 408; Radley v. Kuhn, 97 N. Y. 32.) The Appellate Division erred in holding that the testator died intestate as to the remainder after the termination of the trust estate. (1 R. S. 725, § 28.)</p> <p>Marion W. Tompkins took a vested alienable interest in the real estate devised by the 6th paragraph of the will, subject to the trust therein created. (Manice v. Manice, 43 N. Y. 303; Embury v. Sheldon, 68 N. Y. 227; Moore v. Lyon, 25 Wend. 144; Nelson v. Russell, 135 N. Y. 137; Matter of Seebeck, 140 N. Y. 241; Livingston v. Greene, 52 N. Y. 118; Goebel v. Wolf, 113 N. Y. 405; Mitchell v. Knapp, 54 Hun, 500; Matter of Tienken, 131 N. Y. 391; Delafield v. Shipman, 103 N. Y. 463; Matter of Kimberly, 150 N. Y. 90.) If both Marion and Jotharn took, under the will, only such interests in the property as would necessarily cease at their death, then it is submitted that they would each have, notwithstanding the will, the same interest which we have claimed was given to them by the will. (1 R. S. 729, § 62; Van Nostrand v. Marvin, 16 App. Div. 28; Howland v. Clendenin, 134 N. Y. 305.) The petitioner in the Surrogate’s Court, Mrs. Morel, is also entitled to the income of Marion’s share. (1 R. S. 726, § 40.)</p> <p>Stephanie Morel, through the will of Emil B. Morel, acquired all the residuary interest Marion Tompkins had in the principal of her father’s estate at the time of Marion’s decease, and she is entitled to half of the income of the trust estate until the death of Jotham Tompkins. Hpon his death she is entitled to one-half of the corpus of the estate; she is also entitled to one-half the income since the decree entered before the surrogate in January, 1890. (1 R. S. 723, 724, 727, §§ 12, 13, 22, 44; Kenyon v. See, 94 N. Y. 563; Tompkins v. Verplanck, 10 App. Div. 572; Freeborn v. Wagner, 2 Abb. Pr. 182; Miller v. Fmans, 19 N. Y. 387; Matter of Moore, 8 N. Y. S. R. 602; Gurnsy v. Gurnsy, 36 N. Y. 267; Manice v. Manice, 43 N. Y. 303; Embury v. Sheldon, 68 N. Y. 227; Everitt v. Everitt, 29 N. Y. 39; Wells v. Wells, 84 N. Y. 325; Moore v. Lyons, 25 Wend. 119.)</p>

From the 1st of May, 1886, to the 30th of April, 1891, the defendants composed a limited partnership, organized under the firm name of “ Weis Brothers,” pursuant to the laws of the state of Texas, with Albert and Robert Weis, of Galveston, in that state, as general partners, and Lewis M. Hornthal, of the'city of New York, as special partner, the contribution of the latter to the capital being $50,000.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department (in a case transferred from the first department), entered March 16, 1897, reversing a judgment of the Appellate Term of the Supreme Court in the first judicial district in favor of plaintiff and affirming a judgment in favor of defendant, rendered by tlie General Term of the City Court of the city of New York.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 3, 1896, which affirmed a judgment in favor of defendant, entered upon a decision of the court at Special Term sustaining a demurrer to plaintiffs complaint. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeals, by permission, from judgments of the Appellate Division of the Supreme Court in the third judicial department, entered December 17,1896, which affirmed, respectively, a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term, in each of the above-entitled actions.

<p>Building Contract — Rights of Owner and Sub-contractor, under Order from Contractor. If, after the owner of a building in course of construction under a contract payable in installments has accepted an order drawn hy the contractor in favor of a sub-contractor, payable out of the final installment, the contractor fails to perform by the stipulated date, and the owner then makes a supplemental contract with him for performance by a new date and he again fails to perform, and the owner, having the amount of the final installment in his hands unpaid, makes payments to the contractor not due under the contract, and finally completes the work himself, as provided by the contract, he is not entitled to deduct such payments from the fund applicable to the payment of the sub-contractor for material furnished and used, although entitled to deduct from the fund the expense of completing the work.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The verdict for the plaintiff is unsupported by the evidence. (People ex rel. v. Martin, 142 N. Y. 352; Hudson v. R., W. & O. R. R. Co., 145 N. Y. 408; Matter of Harriot, 145 N. Y. 540.) An error in receiving incompetent evidence if properly excepted to, can only be disregarded when it can be seen that it did no harm.

The nature- of the action and the facts, so far as material, are stated in the opinion. The sale and conveyance to George T. Arnoux was deemed by the executors to be in the interest of the estate. It was absolute in terms, complied with the will, and came within the power which the will conferred upon the executors. (M. L. Ins.