Volume 81 — New York Appellate Division Reports

Submission of ■ a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

<p>Appeal by the plaintiff, Eliza Bennett, as administratrix, etc., of James Bennett, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 7th day of April, 1902, upon the dismissal of the complaint by direction of the court after a trial before the court without a jury at the New York Trial Term upon an agreed statement of facts. ■ •</p> <p>The facts as agreed upon show that the defendant is a municipal corporation existing under the laws of the State of New York that 'plaintiff’s intestate was duly appointed a member of thé park police of . the city of New York as formerly constituted on the 22d day of May, 1889, and had held such position continuously since until the taking effect of the Greater New York charter (Laws of 1897, chap. 378), and was receiving an annual salary of $1,100 as a member of said park police; that pursuant to section 277 of the Greater New York charter the members of the police force appointed by the commissioners of public parks in the city of New York as formerly constituted became members of the police force specified in section 276 of said act.</p> <p>The plaintiff’s intestate became a member of the police force specified in section 276 of the Greater New York charter at the taking effect of said charter, and was such member from April 1, 1898, to the 31st day of December, 1899. The plaintiff’s intestate received from defendant for services as such member for such period the sum of $2,263.40, less the sum of $45.27, deducted pursuant to law for the pension fund. Pursuant to sections 277 and 299 of chapter 378 of the Laws of 1897, the members of the ‘police force of the first grade, whose annual pay or compensation is $1,400, were entitled to receive for the same period of time for which plaintiff’s intestate received pay $2,395.33, less the sum of $47.91, to be deducted pursuant to law for the pension fund, making a difference of $129.27 between that which the deceased actually received and that which he would have received had he drawn the pay belonging to the first class.</p> <p>The plaintiff’s intestate was, on the 1st day of April, 1898, enrolled in the fourth grade, and received the annual salary attached to such grade, to wit, the sum of $1,150. On the 22d day of May, 1898, he was placed in the third grade, and received the annual salary of $1,250 until the 22d day of November, 1898, when he was placed in the second grade and received the annual salary of $1,350. On the 22d day of May, 1899, he was placed in the first grade and received the annual salary of $1,400. The said several salaries were paid to him monthly and at regular intervals during the time he was a member of the police department, and he received the same from the defendant and signed a monthly payroll on each occasion, which contained the following memorandum:</p> <p>“ Received from Treasurer, the sum hereunder placed opposite my name, in full payment of services rendered by me in the capacity and for the entire time specified in this pay roll, and in full' for all demands to date.”</p> <p>The plaintiff claims that there is now due to her from the defendant the sum of $129.27. More than thirty days before the commencement of this action the claim upon which the same is founded was duly presented for adjustment to the comptroller of the city of New York, and for thirty days after such presentment he has refused and neglected to make an adjustment or payment thereof.</p> <p>Upon the foregoing statement of facts it is the contention of the plaintiff that her intestate was entitled to the pay belonging to the first grade from the. 1st day of April, 1898, to the 31st day of-December, 1899. The court below decided that he was not entitled to such other compensation, and from the judgment thereon entered this appeal is taken.</p>

Appeal by the defendants, Jacob W. Miller and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of October, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the separate demurrer of each of said defendants to the plaintiff’s complaint.

<p>Will — what provision creates a tr ust and not merely a power in trust — trustees must in the first instance sue to recover the trust fund — when the cestui que trustent may sue—a trustee may be appointed, to sue.</p> <p>The residuary clause of the will of a testator provided as follows : “All the rest, residue and remainder of my estate * * * whether real or personal i* * * I give, devise and bequeath to my wife, Maria Robinson, and to my children, whether now in being or hereafter born, to be divided among such of my said devisees and legatees as shall survive me, equally share and share alike, ■ provided, however, that the issue of any child or children then deceased shall ■ take the share of* his or their respective parent would have taken in case such parent had survived me.</p> <p>“In case any of my said children or the issue of any deceased child shall, at the time of my decease, be minors under the age of twenty-one years, then I ■ authorize and direct my executors hereinafter named, and the survivor of them, and their and her successors to hold and invest the. share of each of such minor or minors, and to receive and collect the interest and income arising therefrom, and to apply the same toward his, her or their education and support until, each respectively shall reach the age of twenty-one years.”</p> <p>After the death of the testator, the executors set apart, out of the residuary estate, 184 shares of stock for the benefit of the testator’s four minor children' who survived him. Subsequently the executors permitted a third person to hypothecate the stock, which had been indorsed in blank, to a stock brokerage firm, who had notice of the source from which the stock came. The stock brokerage firm subsequently sold the stock and applied the proceeds to the account of the third person.</p> <p>Held, that the will created an express trust to receive the rents, issues and profits, of the property devised to the testator’s minor children and to apply the same to the use of such minors and not simply a power in trust;</p> <p>That the title to the stock vested in the trustees and that they alone had power, in the first instance, to maintain an action against the stock brokerage firm to: recover the value of the stock;</p> <p>That, if the trustees refused to bring such an action after a demand by the cestuique trustent, the latter might maintain the action themselves, making the trustees parties defendant;</p> <p>That, in a proper case, the court would have power to appoint a trustee to bring the action to recover the stock.</p>

<p>Appeal, by J. Sergeant Cram and J.. Woodward Haven, as trustees, etc., of Henry A. Cram, deceased, from an- order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of ■ July, 1902, confirming the report' and supplemental report, of- commissioners of estimate and assessment. . .</p>

<p>Accord and satisfaction — file use of a check sent ‘ ‘ in full settlement of all claims " — the rule that the acceptance of a sum in full satisfaction of a debt for a larger amount does not discharge the debt is not fa/ooi'ed.</p> <p>Where a vendor has a claim against his vendee for a balance due upon the purchase price of a certain lot of goods, and the vendee, in good faith, asserts, as an offset thereto, a claim for a rebate because of the alleged inferior quality of certain other good» purchased and paid for by him, if the vendee sends to the vendor a check for the balance of account, less the amount of the rebate claimed by the vendee, together with the following notice, “ If our settlement is not satisfactory in full payment as marked on face of check, then please return same. The check is sent in full settlement of all claims against us to date, and to be used by you only under those conditions,” and the vendor, without protest or communicating with the vendee, indorses and'uses the check, which is paid in due course of business, the transaction constitutes an accord and satisfaction, even though the vendee’s claim for the rebate was invalid.</p> <p>Semble, that the rule that where a liquidated sum is due the payment of part only, although accepted in satisfaction, is not, for want of consideration, a discharge'of the entire indebtedness, is not looked upon with favor, and is confined strictly to cases falling within it.</p>

Appeal by the defendant, Elizabeth Herdtfelder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of' March, 1902, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 11th day of August, 1902, denying the defendant’s motion for a new trial made upon the minutes..

<p>Appeal by the defendant, The Fewark Watch Case Material Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 27th day of October, 1902, upon the decision of the court rendered after a trial at the Few York Special Term overruling the defendant’s demurrer to the plaintiff’s amended complaint.</p>

<p>No one is compelled to be a witness against himself in a criminal case — how it is determined whether an answer will incriminate him — the question whether he has been in a gambling house will—measure of immunity from prosecution to which he is entitled.</p> <p>Section 6 of article 1 of the Constitution of the State of New York, which provides that no person shall “be compelled in any criminal case to be a witness against himself,” protects a Witness, examined on the investigation of a criminal charge against a third person, from answering questions propounded to him unless it is manifest, beyond a reasonable doubt, that his answers to such questions would not aid the prosecution in proving any link in the chain of evidence necessary to convict the witness of any crime with which he might be thereafter charged.</p> <p>The determination of the question whether the witness’ answers will tend to incriminate him or not must rest largely with the witness himself.</p> <p>Under this provision of the Constitution a witness subpoenaed, under section 608 of the Code of Criminal Procedure, by a magistrate, before whom an information had been laid charging a third person with the crime of keeping a gambling house, may properly refuse to answer a question propounded to him as to whether he had ever been in the house in question, as that fact would be an important link in the chain of evidence against the witness if he should subsequently be prosecuted for gambling at the house in question.</p> <p>Section 342 of the Penal Code, which is a part of the chapter relating to gambling and kindred offenses, which provides, “ No person shall be excused from giving testimony-- upon any investigation or proceeding" for a violation of this chapter, upon the; ground that such testimony would tend to convict him of a crime; but such testimony cannot be received against him upon any criminal investigation or proceeding,” does not give the witness the measure Of protection to which he is entitled under the constitutional provision, in that it does not grant the witness absolute immunity from prosecution for the crime which he believes his evidence will tend to disclose, but simply prevents his testimony fro.m being received against him; nor does an offer of the district attorney and the consent of the magistrate to grant the witness immunity from any prosecution.</p> <p>McLaughlin and Hatch, Jj., dissented.</p>

<p> When the court-will authorize the issuing of a commission to take the oral examination of a witness not within the State., </p> <p>The question whether, under a commission to take the testimony of a witness not within the State, the witness shall be examined upon oral questions or upon written interrogatories is a matter resting within the judicial discretion of the court to be exercised upon the facts presented in the particular case.</p> <p>Where the plaintiff in a negligence action applies for a commission to take the testimony of a non-resident witness in the employ of the defendant, and it appears that such witness is reluctant to testify, although not hostile to the plaintiff, and that he refused to acquaint the plaintiff’s attorneys with facts sufficient to enable them to prepare written interrogatories intelligently, the Appellate Division will not interfere with the discretion of the Special Term in permitting the witness to be examined wholly upon oral questions.</p> <p>Van Brunt, P. J., dissented.</p>

Appeal by the relator, Ernest Ochs, Incorporated, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1902, denying the relator’s application for a peremptory writ of. mandamus and dismissing the alternative writ of mandamus theretofore allowed herein, and also from a judgment of the Supreme Court in favor of the respondent entered upon said order in said clerk’s…

Appeal by William F. Smith and another from an order, of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1902, as resettled by an order entered in said ■clerk’s office on the 5th day of January, 1903, granting the petitioner leave to sue on the bond accompanying a mortgage on real ■estate.

Appeal by the defendant, the Supreme Council of the Loyal Additional Benefit Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of June, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th. day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

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

Appeal by the defendant, John Casey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day-of August, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, directing a sale in foreclosure and adjudging said defendant liable for the deficiency arising on said sale.

Appeal by the defendant^ the Standard Asphalt Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of January, 1903, allowing the plaintiff to serve an amended complaint.

Appeal by the defendant, Nathan Hutkoff, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 17th day of July, 1902^ upon the decision of the court rendered after a trial at the New York Special Term:

Motion by the plaintiff, Jesse Newman, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, Charles De Hart Brower, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1903, denying the defendant’s motion for the assessment of damages by reason of an injunction theretofore granted herein.</p>

Appeal by the relator, Citizens’ Lighting Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1902, dismissing the writ of certiorari theretofore issued in this action to review an assessment of relator’s personal property.

Appeal by the relator, Simon Lieberman, from an order of the-Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3 d-day of December, 1902, dismissing the writ of habeas corpus allowed herein and remanding the relator to the custody of the warden of the city prison.

Appeal - by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor, of the plaintiff, entered in the office of the clerk of .the county of New York on the 28th day of March, 1902, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 23d day of April, 1902, denying the. defendant’s motion for a new trial made upon the minutes.

<p>Amendment of a pleading — what must be shown on an application for leave to do so — the facts should be established by the clients, rather than the attorney’s, 'affidavit:</p> <p>Upon an application for leave to- serve an amended, pleading, made after the expiration of the time when the amended pleading could have been served as of course, the moving party must show some good and sufficient ground for the exercise of the discretion of the court in hi's favor, and, ordinarily, he will not be, permitted to set up matters of which he had full knowledge at the time when he interposed the original pleading.</p> <p>The material facts, excusing the failure or negligence necessitating the amendment, so far as they are within the knowledge of the client, must be shown by his affidavit, and the affidavit of the attorney cannot be accepted in lieu thereof, .at least until- the necessity of making the.motion before ■ the affidavit • of the client can be procured is shown.</p> <p>Appeal by the plaintiff, Mutual Loan Association, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York on the 26th day of January, 1903, allowing the defendant, Joseph S. Lesser, to serve an amended answer herein.</p>

Appeal by the defendant, Francis M. Jencks, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lewis Krulewitch, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 13th day of January, 1903, granting plaintiff’s motion to restore this cause to the general calendar..

<p>Appeal by the defendants, James Warnock and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county uf New York on the 1st day of October, 1902, as provides as follows, “ and that the undertaking heretofore and on the 23rd day of Sep•ternber, 1902, made by The American Surety Company to the defendants, and filed in the office of the Clerk of this County on that day, 'be and it hereby is released and the said The American Surety Company and the plaintiff be and they hereby are relieved from -liability or responsibility by virtue thereof.”</p>

Appeal by the plaintiff, Charles Hauptner, from' a judgment of the Supreme Court in favor of the defendants, entered in the office of the .clerk of the county of New York on the 26th day. of June, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, Hermann De Selding and another, from an order of the Supreme Court, made at the New York Special Term, bearing date the 29th day of December, 1902, and entered in the office of the clerk of the county of New York, granting the motion of plaintiff’s administrator to revive this action.

Appeal by Mary E. Wagner, as general guardian of George D. Wagner, an infant, from, an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 12th day of November, 1902, denying the application of said general guardian for an allowance out of certain accumulations of a trust fund created for the benefit of said infant by the trustees under the will of Bryan Lawrence, deceased; of a sum sufficient to pay certain expenses connected…

<p>Appeal by the defendant, Annie Donohue, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January. 1903, denying her motion to set aside the judgment theretofore entered herein, and for restitution.</p>

<p>Appeal by Lazar Jacobsohn, a third party, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1903, denying his motion to vacate and set aside' an order for his examination concerning the property of the defendant.</p>

<p>Libel per se — express malice, sufficient to sustain punitive damages, inferred from its falseness.</p> <p>In an action of libel, based upon an article which is libelous per se and has been shown to be false, the jury may, at least where it is not claimed that the article was privileged, infer the existence of the express malice necessary to support an award of punitive damages from the simple fact of the publication of the article.</p>

<p>Mechanic's lien — enforcement of, where a contractor to whom the materials hare been furnished throws up his contract and it is assumed by his surety — rigid of lienors furnishing materials under the original contract.</p> <p>Webster White entered into a contract with Henry J. Schile, by which the former agreed to erect a building upon premises belonging to the latter, and George ' Moore Smith executed a bond to secure the faithful performance of the contract by White. White abandoned the contract after partially completing the building and after he had received all that was then due to him. Thereupon Schile, White and Smith entered into an agreement by which White, with the consent of Schile, assigned to Smith all his interest in the contract and all sums' of money due and to grow due thereunder. The agreement recited that Smith accepted the assignment of the contract and would complete the building according to the terms and conditions thereof and that the completed building should not cost the owner any greater sum-than. the. price stipulated therein.</p> <p>The agreement further provided that Smith should be released from all obligation upon the bond executed by him and from any claim against him arising out of White’s failure to complete the contract within the time specified therein.</p> <p>Smith completed the building pursuant to the terms of the original contract and filed a lien for the amount which would have been due to White had he completely performed the contract. Prior to the filing of this lien materialmen who had furnished materials or labor to White before the contract wasíasáigned to Smith, filed liens against the premises for the amount of their claims. All of such liens were concededly valid against White.</p> <p>Held, that, as Smith had completed the building as assignee of the contract made between White-and Schile, and not under an independent contract with Schile, his right to be paid the amount due to White upon the completion of the building was subject to the liens of those who had furnished White with labor and materials used in the performance of the contract.</p> <p>’Van Brunt, P. J., dissented.</p>

Appeal by the defendant, Max Moses, from an interlocutory judgment of the Supreme Court .in favor of the plaintiff,, entered in. the office of the clerk of the county of New York on the 2.9th . day of October, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling said defendant’s demurrer to the plaintiff’s complaint.

• Appeal by the plaintiff, Richard S. Herbert, from an interlocutory judgment of the Supreme Court in favor of the defendant Montana Diamond Company of America, entered in the office of the clerk of the county of New York on the 8th day of November, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining said defendant’s demurrer to the, .plaintiff’s complaint.

Reargument of an appeal by The City of New York and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13.th day of June, 1901, confirming the report of commissioners of estimate and assessment appointed in the above-entitled matter. ■ •

<p>Will — adjournments of proceedings for its prolate are discretionary with the surrogate — errors in the rejection of evidence do not require a reversal where the evidence, if considered, would not home changed the result.</p> <p>October 12, 1900, John D. Bartine filed a petition for the probate of an instrument dated September 26, 1896, which purported to be the last will and testament of William M. Rice, deceased. November 30, 1900, Albert T. Patrick filed a petition for the probate of an instrument dated June 30, 1900, which also purported to be the last will and testament of the said William M. Rice." The proponents of each instrument filed objections to the probate of the other instrument and the two proceedings were consolidated. During the pendency of the proceeding Patrick was indicted for the murder of Rice, and Meyers and Short, the witnesses to the alleged will of 1900, were indicted for perjury and forgery.</p> <p>At the instance of Patrick numerous adjournments of the proceeding, extending over a year, were taken over the objection and protest of Bartine. These adjournments were procured mainly upon the ground that the proceeding should not be continued until after the indictments of Patrick, Meyers and Short had been tried, and as a condition of obtaining one or more of such adjournments Patrick’s counsel stipulated that, if the proceeding was adjourned until after Patrick had been tried under the indictment, he would - not ask for any further adjournments.</p> <p>After Patrick had been tried and convicted under the indictment, but before Meyers and Short had been tried under the indictments found against them, the proceeding, which had then been pending in the Surrogate’s Court for over a year, came on for a hearing.</p> <p>Held, that it was discretionary with the Surrogate’s Court to refuse to grant a further adjournment of the proceeding until after the indictments found against Meyers and Short had been tried.</p> <p>The Appellate Division will not reverse a decree of the Surrogate’s Court, because of an error committed by the surrogate in rejecting competent evidence, if the evidence in question is printed in the record on appeal and the Appellate Division, treating such evidence as though it were in the case, can see that the conclusion reached by the surrogate is correct.</p>

Appeal by Dennis Sweeney, an alleged incompetent person, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Montgomery on the 29th day of December, 1902, confirming the report of a commission appointed to inquire as to the competency of the said Dennis Sweeney, and appointing a committee of his person and estate.

Appeal by the defendant, Alfred O. Hodgman, as administrator and trustee with the will annexed of Mary Eldridge, deceased, from a judgment of the Supreme Cburt in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 21st day of August, 1902, upon the decision of the court, rendered after a trial at the Fulton Special Term, directing a sale of mortgaged premises under foreclosure.

Certiorari issued out of the Supreme Court and attested on the 11th day of April, 1902, directed to Ashley W. Cole and others, being the members of the Board of Railroad Commissioners of the State of New York, requiring them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting to the New York and Port Chester Railroad Company a certificate under section 59 of the Railroad Law.

<p>Certiorari issued out of the Supreme Court and attested on the 24th day of - May, 1902, directed to the Board of Railroad Commissioners of the State of New York and Ashley W. Cole and others, members of and comprising said board, requiring them tó certify and return to the office of the clerk of the county of Albany their proceedings had in granting to the New York and Port Chester Bailroad Company a certificate under section 59 of the Bailroad Law.</p>

Appeal by the plaintiff, the Flower City Plant Food Company, from a judgment of the County Court of Warren county in favor •of the defendant, entered in the office of the clerk of the county of Warren on the 5th day of November, 1902, affirming a judgment of a justice of the peace in favor of the defendant.

Appeal by the defendant, Mate Miller, from an order of the. County Court of Chemung county, entered in the office of the clerk of the county of Chemung on the 9th day of January, 1902, affirming a judgment of the Recorder’s Court of the city of’Elmira, in favor-of the plaintiff, bearing date the 8th day of August, 1901, convicting the defendant of keeping a disorderly house, and also from said judgment of conviction.

Appeal by the defendant, Edward Yan Fradenburgh, from a judgment of the County Court of Sullivan county, bearing date the 8th day of February, 1902, upon the verdict of a jury, and also from an order - bearing date the 8th day of February, 1902, and entered in the office of the clerk of the county of Sullivan, denying the defendant’s motion for a new trial made upon the minutes.

<p>Submission 'of a controversy upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.</p> <p>The controversy is over the will of one Robinson. Plaintiff is a legatee named in the will and seeks to have it adjudged that her legacy is a charge upon the real estáte. The executor contends otherwise, and thus arises the question here for determination. The will reads as follows :</p> <p>“ I, Lockie L. Gr. Robinson, of the city of Binghamton, Broome County, New York, being of sound mind and memory, do make, ordain, publish and declare this. to be my last will and testament, that is to say:</p> <p>“After, all my lawful debts are paid and discharged, I give, devise and bequeath my property as follows :</p> <p>“First: Unto my sister, Mary R. Harvey, in case she survives me, the sum of two thousand ($2,000) dollars. In case she dies before my death, then I give and bequeath the said sum of two thousand dollars, in manner following, that is to say : One Thousand Dollars thereof to be divided between her children, Lockie R. Harvey and Jennie F. Baty, equally, share and share , alike, if both be living; if either be dead, the survivor shall take the whole; and the other one thousand dollars, to the other living children of the said Mary R. Harvey, share and share alike.</p> <p>“ Second: I give and bequeath to my executor hereinafter named the sum of Fifty ($50) Dollars to be invested and kept invested in good interest bearing securities, and to use the interest and income thereof, to keep the burial lot of myself and my late husband, John T. Robinson, in Spring Forest Cemetery^ and the monument and improvements thereon, in good repair ; and my said executor and trustee is authorized to spend so much of the principal, from time to. time, if any be necessary to keep up said repairsand when my executor shall desire to relinquish said trust then I give the said fund, or so much thereof as, may remain, to the directors or trustees of Spring Forest Cemetery, in trust, to be invested, held and used for the purposes aforesaid, and in the manner aforesaid.</p> <p>“ Third: To the .Susquehanna Valley Home of said City I give ■ and bequeath the sum of Five Hundred ($500) Dollars for the use and benefit of the Industrial School connected with said Home.</p> <p>“ Fourth :■ To. my executor hereinafter named I give and bequeath all the rest, residue and remainder of my property, both real and personal, and wheresoever situate, to collect the obligations due me, and sell my real estate as fast as practicable, and to invest the funds and avails so received in good interest bearing securities, and to keep the same invested in such securities, and to pay over the interest and income thereof, from time to time, or so much thereof as may be necessary, to my daughter, Louise Gr. Robinson, for her proper support and maintenance; and when my said daughter shall attain the age of thirty years, then to pay, deliver, transfer and make over to her all of said investments, income and property of every name and kind, to be hers absolutely and forever freed and cleared of said trust.</p> <p>“ Item. I give to my executor hereinafter named full power and authority to sell and convey any or all of my real estate, and to give good and sufficient deeds or conveyance thereof, with common covenants of warranty.</p> <p>“ Likewise I make, constitute and appoint John W. Kennedy trustee under and to be executor of this my last will and testament, hereby revoking all former wills by me made.</p> <p>“In Witness Whereof, I have hereunto subscribed my name and affixed my seal, the first (1st) day of March, in the year one thousand eight hundred and ninety-eight (1898).</p> <p>“ LOCKIE L. G-. ROBINSON, [seal] ”</p> <p>Further facts appear in the opinion.</p>

Appeal by the plaintiff, Emma J. D. Kirkpatrick, as trustee under the will of John Kirkpatrick, deceased, for the benefit of David E. Kirkpatrick, and as trustee for Ray C. Kirkpatrick and others, children of said David E. Kirkpatrick, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 27th day of June, 1902, upon the report of a referee holding that the plaintiff’s cause-of action was barred…

<p>Appeal by the petitioner, 'William S. Paddock, sole surviving executor, etc., of Stephen M. Paddock, deceased, from a decree of the Surrogate’s Court of the county of Tompkins, entered in said Surrogate’s Court on the 16th day of September, 1902, judicially settling the accounts of the said executor and adjudging certain legacies to be a charge upon the real estate of the testator.</p> <p>Stephen M. Paddock, the testator whose will is here for construction, died upon the 18th day of October, 1895, leaving him surviving his widow, Mary A. Paddock, and no children, but two sisters, Sarah E. Warner and ElsCy Ann Burnett, and a nephew, William S. Paddock, a son of another sister. The respondents here are Eugene Terry and Frank Terry, .who were brought up as the children of the testator, who never had children, and they sustained that relationship to the testator until they were twenty-four or twenty-five years of age. In 1887 the will in question was executed. By that will the testator gave to his wife a life estate in the homestead farm and any lands which he might buy adjoining said farm. He next gave to his wife $1,000 out of his personal estate with which she was to erect two dwelling houses of equal cost, as near as may be, on certain real estate which she owned, and which she had.theretofore willed to Frank Terry and Eugene Terry, for the benefit of said legatees. His executors were thereafter directed tó pay to each of two parties $25 a year during the lifetime of his wife, and after her decease $100. The fourth provision of the will follows, wherein his executors were authorized and empowered to sell all other real estate of which he might die seized, from the proceeds of which his wife should receive $1,000, with which she was to erect a monument for their mutual benefit. The use and income of the remainder of the testator’s personal property was then given to the wife for life, and it was provided that the above provisions for her were in place of dower and distributivé share in his estate. By the 7th clause of the will it was then provided that after the death of his wife his estate should he divided, to his sister, Sarah E. Warner, one-half; to his sister, Elsey Ann Burnett, one-fourth; and to his nephew, William S. Paddock, one-fourth. , By the 8tli clause it was provided that his wife should give no security, but that his nephew, whom he joined with her as executor, should give security in a bond in a penalty of at least $15,000. The 9th clause of the will then provides: “ After the decease of my said wife, my surviving executor is. hereby authorized and empowered to sell the rest and residue of my real estate and convey the same for the purpose of carrying out this instrument.” In October, 1894, the testator executed a codicil in these words: “ I give,, devise and bequeath to Eugene Terry and Frank Terry the sum of one thousand dollars each.” On the 26th. day of June, 1901, his widow, Mary A. Paddock* died, and letters, testamentary were duly issued to William S. Paddock, the nephew, as the surviving executor of the will of Stephen M. Paddock. Upon the accounting it appeared that at the time of the death of Steplien M. Paddock his personal estate was just about sufficient to pay his debts. The evidence .is not clear as to just what real estate he had in addition to the homestead farm. After the making of his will, however, he seems to have purchased some real estate adjoining the homestead farm, as was apparently contemplated in the will; and he seems also to have had a small parcel of real estate aside from that, which the executors sold under the 4th clause of the will. The evidence does not disclose what was received from the sale of this real estate, but it appears to have been a small amount. The testator was a farmer, making between $400 and $500 a year, and there was nothing to indicate that he had any expectation of augmenting his property to any material extent. After the death of Mary A. Paddock, the surviving executor sold the homestead farm and received therefrom a little upwards of $6,000, and at the time of the accounting he had in his hands for distribution the sum of $6,620.66.</p> <p>Upon his accounting, as surviving executor, Frank Terry and Eugene Terry made claim for payment in full of the $1,000 given to Mary A. Paddock for their benefit, and also of the $2,000 given to them by the codicil of the will, as charged by the will upon the real estate. The special surrogate of Tompkins county has affirmed their contention and directed payment to them of these legacies in full.</p>

Appeal by the plaintiff, Sidney Brown, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of St. Lawrence on the 26th day of March, 1902, upon the decision of the court rendered after a trial at the St. Lawrence Special Term, as refuses, except upon certain conditions, to grant an injunction against the maintenance of a dam beyond a certain height.

<p> Services of an expert rendered on a request that they he rendered “ if you can he of service to us." </p> <p>The Hudson River Telephone Company brought an action against the city of Johnstown to restrain that city from enforcing an ordinance requiring the telephone company to place its wires in a subway owned by another company, alleging that the subway was improperly constructed, and that, to place its wires therein, would seriously damage its telephone system. The president of the telephone company which owned the subway and desired the other telephone company to place its wires therein, wishing to secure affidavits for use in opposition to a motion for a preliminary injunction, wrote to an electrical expert, stating “if you can be of service to us, which you can determine after reading the enclosed papers, we will be pleased to have you frame such affidavit as you may decide upon and we will gladly settle your bill for same.”</p> <p>Held, thdt if the electrical expert furnished the telephone company with an affidavit, after determining in good faith and upon reasonable grounds that such affidavit would be of service to it, he was entitled, as matter of law, to recover compensation for his services'in preparing the affidavit.</p>

Appeal by the defendant, The Saratoga and Washington Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Rensselaer on the 22d day of May, 1902, upon the verdict of a jury, and also from an order bearing date the 12th day of May, 1902,. and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Saratoga and Washington Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 9th day of April, 1902, upon the decision of the court rendered after a trial at the Saratoga Special Term.

Appeal by the plaintiff, John 0. Warren, from so much, of a judgment of the Supreme Court, entered in the office of the clerk of the county of Fulton on the 7th day of November, 1902, upon the decision of the court rendered after a trial at the Fulton Trial Term before the court without a- jury, as denies the plaintiff’s motion for an injunction. The defendant is a municipal corporation containing about 18,000 inhabitants, and is located on the Cayadutta creek.

Appeal by the Eemington Salt Company from an order of the Supreme Court, made at the Tompkins Special Term and entered in the office of the clerk of the county of Tompkins on the lith day of January, 1903,. denying a motion made by the said Eemington Salt Company to intervene in the above-entitled action and to be allowed to come in and defend the same-.

Appeal by the defendant, Philander W. Peck, from a judgment of the County Court of Eulton county in favor of the plaintiff,, entered in the office of the clerk of the county of Fulton on the 6th day of October, 1902, affirming a judgment of a justice of the peace of the town of Ephratah, in said county, entered on the 25th day of October, 1901.

Appeal by the defendants, Andrew H. Rushford and others, as ■•assessors of the town of Clinton in the .county of Clinton and State ■of ¡New York, from a judgment of the Supreme Court in favor of the relators, entered in the office of the clerk of the county of Clinton on the 24th day of July, 1901, upon an order made at the ¡Montgomery Special Term, and entered in said clerk’s office on the 15th day of July, 1901, confirming the report, of a referee and reducing the…

Appeal by the plaintiffs, the Town of Ulysses and another, from a judgment of the Supreme Court in favor of the defendants, John H. Collins and others, entered in the office of the clerk of the county of Tompkins on the 26th day of September, 1902, upon the decision of the court, rendered after a trial at the Tompkins Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, the Troy City Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 25th day of October, 1901, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 25tli day of October, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, De Witt Bruce, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 28th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of April, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Home Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Ulster on the 24th day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by John M. Eddy, a party to the above proceeding, from, so much of an order of the Supreme Court, made at. the Fulton Special Term and entered in the office of the clerk of the county of Saratoga on the 29th day of December, 1902, as denies the appellant’s application to remove Frank Jones, a commissioner appointed,' in the above-entitled proceeding, and to appoint another person in his place and stead.

Appeal by the plaintiff, Mary C. Legnard, from a judgment of the Supreme Court in favor of the defendant, entered in the, office of the clerk of the county of Saratoga on the 21st day of October,… Held: the company shall have due notice and opportunity for its medical examiner to be present and participate therein.

Appeal by the defendant, Nicholas McMahon, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Washington on the '7th day of November, 1902, denying the defendant’s motion for an order amending the judgment theretofore entered herein by the plaintiff.

Appeal by the defendant, Benjamin S. Cowles, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and of certain of the defendants, entered in the office of the clerk of the county of Warren on the 14th day of July, 1902, upon the decision of the court, rendered after a trial at the Warren Trial Term, a jury having been waived, directing a sale in partition and determining the interest of the various parties to the premises in. question.

<p>Appeal by the plaintiff,. Willard S. Sammons, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 7th day of November, 1902, upon the decision of the court, rendered after a trial before the court without a jury at the Fulton Trial Term, as denies the plaintiff’s motion for an injunction.</p> <p>The plaintiff, who is an owner of lands about nine miles below the city of Gloversville, through which the Cayadutta creek, a large natural stream, flows, has brought this action against such city to restrain it from polluting that stream by emptying its sewers in it and for damages.</p> <p>The trial court has found that ever since 1890 the defendant has, by means of its system of sewers and drains, collected in artificial channels and wrongfully and unlawfully discharged into such creek above the lands of the plaintiff a large quantity of sewage and filth, thereby polluting the waters and also the bed and the bank of said creek, rendering them offensive to the senses and occasioning deposits in the bed and along the banks thereof and upon plaintiff’s land, rendering such waters less useful for farming, dairying and manufacturing purposes and for the maintenance of cattle and other animals and for the harvesting of merchantable ice, to the nuisance of the plaintiff and his land; that, the defendant thereafter enlarged its system of sewers so that the amount of pollution discharged from them into such creek at the time of the trial amounted to 1,200,000 gallons per day of domestic sewage beside the washings of streets through eighty catch basins; that such wrongful acts of the defendant have continued for more than six years prior to the commencement of the action; that the defendant is a growing city; that it has from time to time during said six years enlarged its system of sewers and increased the quantity of its sewage discharged into said creek and is continually increasing said nuisance to the lands of the plaintiff; that the defendant threatens to continue said nuisance and does not abate the same, and will, unless restrained by the court, continue said nuisance permanently and the plaintiff will be compelled from time to time to bring actions against the city to recover his damages from time to time suffered by the trespass so committed and continued.</p> <p>The court also found the amount of damages the plaintiff had suffered for the six years prior to the commencement of the action and from that time down to the time of the trial and awarded him a judgment therefor, but denied him . an injunction on account of the distance of his lands from the city of Gloversville. Because of this denial the plaintiff has appealed.</p>

Appeal by the relator, the Town of Colesville, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 3d day of October, 1902, directing the issuance of a peremptory writ of mandamus, in so far as said order fails to determine that the relator is entitled to a peremptory writ of mandamus requiring defendant to put in an undercrossing in order to restore a certain highway to its former state of…

Appeal by the defendants, James Rutherford and others^ from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 19th day of March, 1902, upon the decision of the court rendered after a trial at the Delaware Trial Term, the jury having been discharged.

<p>Appeal by the defendant, William P. Harrington, from a judgment of the Supreme Court in favor of the plaintiff and the defendants, other than the said Harrington, entered in the office of the clerk of the county of Tompkins on the 4th day of September, 1902, upon the decision of the court, rendered after a trial at the Tompkins Special Term, declaring void and canceling of record a-certain assignment of mortgage to the defendant William P. Harrington.</p> <p>The f-un'd over which this controversy arises was derived from, proceedings to sell the real estate of Fred Whitlock, deceased, to-pay his debts, taken in the Surrogate’s Court of Tompkins county. It consists of the surplus moneys belonging to his widow and infant heir, and was in the custody of that court to be invested for their' benefit. Under the provisions of section 2796 of the Code tha decree which distributed the same should have provided for its. investment “ in the public securities of the State, or of the United States ; or for the loan thereof secured by bond, and by mortgage upon unincumbered real property within the State, worth at least, exclusive of buildings thereupon, twice the sum lent,” unless tha court, in its discretion, had directed that it be paid to the infant’s, general guardian upon proper security given. As I understand tha record, the decree in this case directed as follows: That said fund “be invested by the county treasurer of Tompkins county, at interest, in the manner provided by law.”</p> <p>It appears that the county treasurer received such money on or about November 26, 1897, and, instead of investing it at once, ha deposited it to his credit as such treasurer in the Ithaca Trust Company, where it drew three per cent per annum. Subsequently, on. September 1,1898, such treasurer applied to such Surrogate’s Court,, on his own petition, for leave to loan $500 thereof to Mrs. Ophelia. J. Seeley, to be secured by a first mortgage upon certain premises, therein described, and stating that such property was worth $4,000, and that such loan would draw five per cent interest. The surrogate made an order directing that such loan be made; and a mortgage was thereupon executed by Mrs. Seeley to Charles Ingersoll, county treasurer of Tompkins county, his heirs and assigns, to. secure such amount, and was thereupon delivered to and held by him for about one year. Subsequently, such treasurer used and: appropriated to his own- use a large amount of the court funds in his hands, and on September 7, 1899, he sold and assigned the-mortgage in question to William P. Harrington for the full face, thereof and accrued interest, and used the inoneys so received to-replace other court moneys so converted by him. Such purchase, was made by Harrington for full value paid and in good faith.. The treasurer subsequently . absconded, being indebted for such court funds in a large amount, and the question now arises between, said Harrington and the sureties upon said treasurer’s bond, upon, whom the loss shall fall.</p> <p>The action is brought by the successor of such treasurer to recover-the . amount, with other amounts converted, against such sureties, under the provisions of section 147 of chapter 686 of the Laws of 1892, as amended by chapter 112 of the Laws of 1901, said Harrington being made a party to the action. The sureties claim that the assignment of such mortgage to Harrington, having been made without any order of court, was without authority, and did not operate to pass any title to him; that such mortgage is- still the property of such- treasurer’s successor, and that lienee they are not liable for any loss on that account. The sai'd Harrington claims that he acquired good title to the same. The trial judge held that no title passed by the assignment, and ordered judgment accordingly. From the judgment so entered, said Harrington takes this appeal.</p>

Appeal by the plaintiff, Alfaretta J. Church, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the' 5th day. of July, 19Ó2, upon the decision of the court, rendered after a trial at an adjourned term of the Fulton Trial Term held by consent before the court, without a jury, at chambers, granting the defendant an absolute divorce, and also from an order entered in said clerk’s office on the 21st day…

Appeal by .the plaintiff, Ella 0. Curtis, from a judgment of the Supreme Court in favor of the defendants,.Cornelius A. Waldron, as ■executor, etc., of Cornelius G. Yisscher, deceased, and others, entered in the office of the clerk of the county of Saratoga on the 12th day •of November, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Special Term.

<p>Purchase-money mortgage — the deed and mortgage are to be construed as one instrument— sale of land of a cemetery association under mortgage foreclosure—the holder of a certificate of indebtedness of a cemetery association is not a necessary party thereto.</p> <p>Where, upon a sale ot real property, a mortgage is given back for a portion of the purchase price, the deed and the mortgage constitute an indivisible act and are to be regarded as one instrument and construed as a conveyance upon the condition of payment expressed in the mortgage.</p> <p>The holder of a certificate of indebtedness issued by a rural cemetery association, incorporated under chapter 133 of the Laws of 1847, is not a necessary party to án action to foreclose a purchase-money mortgage covering land conveyed to the cemetery association for cemetery purposes.</p> <p>Chapter 419 of the Laws of 1871 does not prohibit the sale, in such an action, of that portion of the mortgaged premises which has not been used for interments or sold by the cemetery association for burial purposes.</p>

Appeal by the defendant, the Syracuse, Lakeside and Baldwins-ville Railway, from an order of the Supreme Court, made at the Onondaga Trial Term and entered in the office of the clerk of the county of Onondaga on the 5th day of ¡November, 1902, granting the plaintiff’s motion for a new trial made upon the minutes, a non-suit having previously been granted upon a trial at said Trial Term.

Appeal by the ■ defendant, the State Bank of Randolph, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 1st day. of August, 1902, upon the' report of a referee ad judging plaintiff’s lien upon certain shares of stoek to be superior to the lien of said defendant.

<p>Appeal by the defendants, Garra K. Lester and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 17th day of October, 1902, upon the decision of the court, rendered after a trial at the Erie Special Term, adjudging that a portion of the defendants’ premises was subject to a right of way appurtenant to the lands of the plaintiff.</p>

Appeal by the defendant, the Black River Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 30th day of January, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 31st day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Howard Iron Works, from an interlocutory judgment of the County Court of Erie county in favor, of the defendant, entered in the office of the clerk of the county of Erie on the 4thday of December, 1902, upon the decision of the court overruling the plaintiff’s demurrer to the counterclaim set forth in the defendant’s answer.

Appeal by the plaintiff, Almeron Swart, an infant, by Ella L. Hough am, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 17th day of October, 1902, upon an order entered in said clerk’s office on the 17th day of October, 1902, directing a verdict in favor of the defendant dismissing the plaintiff’s complaint, and setting aside the verdict,.of a jury theretofore rendered in…

Appeal by the defendants, the Auburn Loan Company and another, from a judgment of the County Court of Cayuga county in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 14th day of July, 1902, upon the verdict of a jury reversing, upon appeal, a judgment of the City Court of the city of Auburn in favor of the defendants, entered on the 22d day of July, 1901, and also from an order of said County Court, bearing date the 17tli day of…

■Appeal by the defendant, The Rochester Folding Box Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 24th day of May, 1902, upon the decision of the court, rendered after a trial at the Monroe Special Term, directing the specific performance by the defendant of the contract set forth in the complaint. The action was commenced on the 5tli day of August, 1901.

<p>Appeal by the defendant, Arnold L. Eaton, from that part of an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Herkimer on the 24th day of. December, 1902, discharging a judgment of record which retained the same in full force for the benefit of the receiver of the said defendant as to the. personal property acquired by him.</p>

<p>Appeal by the defendant, The Wells, Fargo & Company Express; from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 18th day of November, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 18th day of November, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Witness — right on the direct examination to cross-examine one who unexpectedly develops hostility—he may be, examined as to contradictory statements, not to impeach his veracity, but to enliven his recollection.</p> <p>A witness who unexpectedly develops hostility to the party calling him may he subjected to cross-examination by such party if the trial court is satisfied that the witness is adverse or that the party has been tricked into placing him upon the stand. The extent of this cross-examination is within the discretion of the trial court and is dependent upon the circumstances of the particular case.</p> <p>While the witness may .not be cross-examined as to statements contained in an affidavit verified by him, which are contradictory of the .testimony given by him at the trial, for the purpose of assailing his credibility, the witness may be cross-examined as to such matters, when the main purposethereof is to enliven his recollection or to explain his testimony in the light of his former sworn statements, or to account for the surprise of the counsel at the trial, although the cross-examination may incidentally cast reproach upon the witness.</p> <p>Williams and Nash, JJ., dissented.</p>

Appeal by the plaintiff, Anna O’Sullivan, from a judgment of the Supreme Court in favor of the-defendant, entered in the office of the clerk of the county of Onondaga on the 1st day of July, 1902, upon an' order made at the Onondaga Trial Term and entered in said.-clerk’s office on the .1st day of July, 1902, dismissing the plaintiff’s complaint upon the merits, and also from said order upon which the judgment was entered.

<p>Appeal by the defendant, Bridget T. Whitney, individually and as administratrix, etc., of Nora Toomey, deceased, from an order of the Supreme Court, made at the Allegany Special Term and entered in the office of the clerk of the county of Allegany oñ the ■ 29th day of September,'1902, requiring the defendant to make- and file a bill of particulars of the property, debts and funeral expenses of the intestate and of the expenses of administration.</p>

■ Appeal by the defendant, The Delaware, Lackawanna, and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 6th day of June, 1902, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 15th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s…

Appeal by the petitioner, Cora Skinner, as administratrix, etc., of Elbert D. Parker, deceased, who was á son of George O. Parker, deceased,- from a decree of the Surrogate’s Court of the county of Oswego, entered in said Surrogate’s Court, on the 2d day of September, 1902, dismissing the petition in' the above-entitled proceeding.

Appeal by the plaintiff, Arthur M. Bennett, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 17th day of November, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term.

Appeal by the plaintiffs, Alonzo H. Terwilliger and another., from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Seneca on the 3d day of July, 1902, upon the report of a referee dismissing the complaint as to certain of the defendants.

<p>Appeal by the- defendants,. Horace L. Hotchkiss, and another, as surviving, partners.of Harvey B. Rich, of the firm of Horace ÍL. Hotchkiss & Company, from a judgment of the Supreme Court -in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga' on the 19th day ¡of July, 1902,. upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of July, 1902, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Josephine Preston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 28th day of July, 1902, upon an order made at the Erie Special Term and entered in said clerk’s office on the 28th day of July, 1902, affirming upon appeal a judgment of the Municipal Court of the city of Buffalo in favor of the plaintiff, entered , on the 12th day of March, 1902, upon the verdict of a…

<p>Will—direct gifts to life tenants and remaindermen of their respective estates, without any trust—estates vesting on the death of the testator—when the life tenants take as tenants in'common — where three life estates are created, the third is abrogated and the remainder vests at the end of the second. ”</p> <p>The will of a testator, who was survived by his wife, Sdsan Conger; his daughter, Cordelia C. Eastman, and a son-in law, Almon R. Eastman, provided, “ Third. I give, devise and bequeath unto my said wife, Susan Conger, and my said daughter, Cordelia Eastman, and to the survivor of them, the use for and during their natural lives, of Two Hundred shares of the stock of the Utica, Chenango and Susquehanna Valley Railway Company, now owned by me, and I order and direct that such number of shares of said stock be kept by my said executors, and the income and interest thereof be annually paid equally to my said wife and daughter during their joint lives, and the whole of said income to the survivor during her natural life after the death of the other.</p> <p>“And in case said Almon R. Eastman shall survive both my said wife and daughter, I give, devise and bequeath the use, occupation, interest and income * * * of said stock of said Utica, Chenango and Susquehanna Valley Railroad Company to said Eastman after the death of my said wife and daughter," for and during the period of his natural life and to be thereafter disposed of as herein provided.”</p> <p>“Seventh. After the death of my said wife, Susan Conger, and my said daughter, Cordelia Eastman, and of said Almon R.'Eastman, I give, devise and bequeath unto the Board of Education of the Waterville Union School and Academy, of Watérvillé, ÜST. Y., Forty shares of stock of the Utica, Chenango and Susquehanna Valley Railroad Co., the use whereof is hereinbefore given to the three persons above named.”</p> <p>The last-mentioned clause was followed by other similar clauses in which the testator after the death of his wife and daughter and the said Almon R. Eastman, bequeathed the balance of the 200. shares of stock, in various lots, to legatees mentioned therein.</p> <p>The 1st clause of the will appointed the testator’s wife and daughter and the said" Almon R. Eastman and the survivors or survivor of them “ Executors ” of the will. The will subsequently referred to such persons as executors, but " 'the final clause thereof contained this provision: “And "for the purpose of having the trusts and bequests hereby made and created, properly carried out and paid, after the death of all my said Executors, I hereby authorize and empower and direct,” etc.</p> <p>This was followed by a direction for the designation of some proper and competent person to act as “Executor or Trustee,” With the exception of the latter instance, the persons to whom the administration of the estate was committed were denominated simply and solely executors and not trustees.</p> <p>Held, that the will did not create a trust estate in the 200 shares of stock, but that it made direct gifts to the life tenants and to the remaindermen of their respective interests in the stock;</p> <p>That the title to the stock vested in the remaindermen upon the testator’s death, and that the time of enjoyment alone was postponed until the death of the life tenants;</p> <p>That the testator’s wife and daughter took as tenants in common and not as joint tenants, and that the testator had consequéntly attempted to create three life estates in the stock;</p> <p>That, it being contrary to the statute that the testator should create three life estates in the stock, the third life estate should be abrogated and the remainder be allowed to vest upon the termination of the first two.</p>

Appeal by the defendant, the Buffalo. Gas Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 13th day of September, 1902, upon an order of the Supreme Court made at the Erie Special Term and entered in said clerk’s office on the 13th day of September, 1902, affirming a judgment of the Municipal Court of the city of Buffalo in favor of the plaintiff entered on the 9th day of November, 1901, upon the decision of the…

Appeal by the plaintiff, Charles W. Morris, from a judgment of •the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 21st day of June, 1902, upon, the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of June, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mary Field, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 29th day of April, 1902, upon the decision of the court rendered after a trial at the Onondaga Special Term.

<p>Appeal by the plaintiff, George W. Burks, from a judgment of' the County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 22d day of May, 1902, upon an order of said County Court, entered in said clerk’s office on the-21st day- of May, 1902, reversing a judgment of the Municipal-Court of the city of Rochester in favor of the plaintiff, entered on the 23d. day of January, 1902, upon the verdict of a jury, and also from the said order upon which the judgment appealed from' was entered.</p>

Appeal by the defendant, the Farmers’ Mutual Indemnity Association of Cayuga County, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office off the clerk of the county of Cayuga on the 6th day of November, 1902, upon the decision of the court, rendered after a trial at the Cayuga Special Term, overruling the defendant’s demurrer to the amended complaint.

Appeal by the plaintiff, Margaret Sehl, from, a judgment of the Supreme Court in favor of the defendant, entered in the office •of the clerk of the county of Onondaga on the 1st day of July, 1902, upon the dismissal of the complaint by direction of the court •after a trial at the Onondaga Trial Term.

Appeal by the plaintiff, Levi .S. Letson, from an interlocutory judgment of the Supreme Court in favor of the defendants, Joseph E. Letson and others, entered in the office of the clerk of the county of Erie on the 30th day of September, 1902, upon the decision of the court rendered after a trial at the Erie Special Term sustaining said defendants’ demurrer to the amended complaint.

<p> Corroboration of the testimony of a complainant on the trial of an indictment for rape. </p> <p>Where upon the trial of an indictment for the crime of rape in the second degree the only direct evidence of the commission of the crime is that given by the complainant herself, evidence given by other witnesses to the effect that the complainant is pregnant; that she and the defendant had been in each other’s company on several occasions, and that they had gone to the place in which the complainant testified that the crime was committed at or about the time fixed by her, is not sufficient corroboration of the complainant’s testimony to sustain a conviction. (Per Nash and McLennan, JJ.)</p> <p>Spring and Hiscock, JJ., concurred in result; Williams, J., dissented.</p>

<p>Negligence — injury from a splintered portion of a car giving way while being mounted by a brakeman to be stopped on a “ cripple track ” — the inspector marking the defect and the brakeman are fellow-servants.</p> <p>In an action to recover damages for personal injuries it appeared that the plaintiff was an experienced hrakeman employed in the yard of the defendant railroad company; that, as trains arrived at the yard, inspectors would examine the cars composing the train, mark the defective cars, which were thereupon taken out of the train and placed upon tracks known as “cripple tracks;” that, as the defective cars were moving along the cripple track, the yard brake- ■ man would mount them and stop them at any desired point.</p> <p>It further appeared that on the day of the accident a car marked by the inspectors as having defective bumper bolts was sent to the cripple track; that, as it was moving along that track, the plaintiff attempted to board it for the purpose of braking it; that in doing so he placed his hand on a portion of the body of the car which had been splintered; that the splintered portion gave way and that he fell to the ground.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed; .</p> <p>That the accident to the plaintiff was one which pertained to the risk of his employment;</p> <p>That the inspection of the cars was solely for the purpose of taking defective cars out of the trains and not for the use of the defendant’s employees;</p> <p>That, with respect to the inspection of the cars, the inspectors and servants engaged in removing the defective cars were cóemployees, and that as to the manner in which the inspection should be made the defendant owed no duty whatever to the plaintiff.-</p> <p>Adams, P. J., and Spring, J., dissented.</p>

<p>Forgery — a belief that the person whose name is used will ratify the act must have a rational basis — otherwise the utterance of a forged note is conclusive evidence of intent to defraud — the ability or intent of the accused to pay is immaterial.</p> <p>Upon, the trial of an indictment charging the defendant with the crime of having forged an indorsement upon a promissory note and procuring the note to be discounted by a bank, the defendant’s belief that the person whose name she indorsed on the note would ratify and sanction her act does not constitute a defense, unless such belief was based upon facts and circumstances which. would justify a rational person in entertaining it.</p> <p>In the absence of proof of any such facts and circumstances the uttering of the note is conclusive evidence of an intent to defraud.</p> <p>In such a case the defendant’s ability and intention to pay the note cannot be . considered in determining the question of- the defendant’s criminal intent.</p>

Appeal by the defendant, Ferdinand Shack, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 3d day of February, 1903, granting plaintiffs motion to place this cause upon the preferred calendar.

Appeal by the plaintiff, John Schumpp, as guardian ad litem of John Schumpp, Jr., an infant under the age of fourteen years, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 7th day of January, 1903, granting the defendant’s motion to open its default.

Appeal by the plaintiff, Israel Boss, an infant, by Abraham Boss, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of December, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of December, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Frederick C. Beach, from an order ;of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1902, granting the plaintiff’s motion to set aside the verdict theretofore rendered in. favor of the defendant and for a new trial.</p>

Appeal by the plaintiff, Edward S. Minor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of February, 1903, denying plaintiff’s application for the. continuation of the stay theretofore granted, restraining the respondent herein from trying the title, by means of a sheriff’s jury, to a debt attached in this action.

Appeal by Annie Y. Rand, as executrix, etc., of Jasper R. Rand, deceased, who was in his lifetime one of the executors of Addison C. Rand, deceased, from so much of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 14th day of October, 1902, as awards to her the sum of $343 as commissions earned by Jasper R. Rand, deceased, as one of the executors of Addison C. Rand, deceased.

Appeal by the defendant, Eclipse Manufacturing Company, from, an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of October, 1902, upon the decision of the court, rendered after a trial at the New York -Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the defendant, Emma Ida Toplitz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of October, 1902, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1902, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the 7th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Horace White and others, as trustees and successors in interest to The Evening Post Publishing Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1902, as resettled by an order entered in said clerk’s office on the 28th day of June, 1902, denying the defendants’ motion to amend the verdict of a jury rendered in this action.

Appeal by the defendant, Elizabeth B. Lynde, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of ..February, 1903, allowing the plaintiffs.to tile and serve an amended complaint.

Appeal by the plaintiff, Herman Gunther, as administrator, etc., of Herman Gunther, Jr., deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 13th day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and. also from an order entered ia said clerk’s office on the 20th day of February, 1902, denying the plaintiff’s…

Appeal by the defendant, the Columbia Insurance Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer- to the plaintiff’s complaint.

<p>Negligence — evidence of the cost of an annuity equal to the earnings of a decedent anaK as to the age attained, by his father is incompetent.</p> <p>While, in an action brought to recover damages resulting from the death of theplaintiS’s intestate, the amount of the salary or earnings of the intestate and the probable duration of his life, are competent evidence to enable the jury to-estimate the probable loss resulting to the widow or next of kin of the decedent, from his death, evidence of the amount which it will cost to purchase an annuity equal to the amount of the decedent’s income, based upon the probable duration of his life had he not been killed, is incompetent, as the jury would not b& justified in using such sum as a basis in determining the amount of their. verdict.</p> <p>Evidence of the age at which the intestate’s father died is not admissible upon, the subject of the probable duration of the life of the intestate.</p> <p>O’Brien and Hatch, JJ., dissented.</p>

Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the ' office of the clerk of the county of New York on the 1st day of November, 1902, upon the decision of the court rendered after a trial at the. New York Trial Term, a jury having been waived, dismissing the complaint upon the payment by the defendant of the amount of its personal tax, for the year 1896, as reduced..

Appeal by the defendants, Thomas Dimond and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1903, granting the plaintiff’s motion to set aside the dismissal of the complaint taken by default, and to restore the action to the day calendar for trial upon condition that he give an undertaking for costs, and that the action be tried when reached upon the…