Volume 84 — New York Supreme Court Reports

<p>Executors and trustees under a will — when the same persons are entitled to commissions in both capacities.</p> <p>'To entitle the same persons to commissions as executors of, and trustees under, a will, such will must provide either by express terms or by fair intendment for the separation of the two functions and duties, one duty to precede the other, and to be performed,, or substantially performed, before the latter is begun.</p> <p>The first four provisions of a will created no trust, involved no exercise of discretion, vested no estate in the executors, but simply disposed of a certain sum of money and particular articles of personal property by direct gift to the persons therein named.</p> <p>The fifth provision thereof assumed that the previous provisions had been fully executed, and dealt with the residue of the estate alone. It gave all the residue of the property of the testatrix, real and personal, in trust to her executors and testamentary trustees, thereafter appointed. It defined the trust created, which was to continue during the life of a daughter of the testatrix, the sole beneficiary thereunder, and it prescribed the final and absolute disposition of the property when the trust should have been fully discharged.</p> <p>‘The sixth and last provision of the will nominated the same persons as the “ executors of, and testamentary trustees under,” the will, and gave to them as executors and testamentary trustees power to sell, etc., and to invest the proceeds of such sales as they might see fit for the purpose of carrying out the provisions of the will.</p> <p>Held, that the duties of the executors and trustees were separate and distinct, and that they were entitled to commissions in both capacities.</p>

<p>Property taxable under chapter 713 of 1887 — non-resident property of a, non-resident not taxable — certificates of shcores of stock in a foreign corporation.</p> <p>In case a resident citizen of another State or country, domiciled therein, dies leaving personalty within the State of New York, it or the right to succeed to it, is taxable under chapter 713 of the Laws of 1887, and in case a resident citizen of the State of New York domiciled therein dies leaving personalty in another State or country, it or the right to succeed to it, is taxable under such act.</p> <p>"Where a person dies, a resident of the Kingdom of Great Britain, leaving property therein and also in the State of New York, if legacies bequeathed by his will to foreign legatees are paid out of the property in Great Britain, such legatees have not succeeded to any property in the State of New York, nor has any property passed to them by virtue of the laws thereof, and their right to succession is not taxable under chapter 713 of the Laws of 1887.</p> <p>A testator, not a resident of the State of New York, died leaving within this State certificates of shares of stock of various foreign corporations.</p> <p>Held, tliat neither the value thereof nor the right to succeed thereto was subject to taxation under chapter 713 of the Laws of 1887.</p>

Appeal by Sarab Leverett Hayden and others, executors and trustees under the will of Peter Hayden, deceased, from so much of tbe decree of the.

Appeal by tlie plaintiffs, Emil Oelbermann and others, from an order of tlie Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of December, 1893, denying the plaintiffs’ motion for an injunction restraining the defendant The New York Central and Hudson River Railroad Company from voting at a meeting of tlie stockholders of the New York and Northern Railway Company upon any of the shares of stock…

Appeal by tbe defendant, Barbara Yagel, from a judgment of tbe Supreme Court in favor of tbe plaintiffs, entered in tbe office of tbe clerk of tbe county of Otsego on tbe 8tb day of April, 1892, upon tbe report of a referee.

Appeal by tbe defendant, Edmund H. Watkins, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Tompkins on tbe 24th day of October, 1890, upon tbe verdict of a j'ury rendered after a trial at tbe Tompkins Circuit, and also from the judgment of tbe Supreme Court in favor of the plaintiff, entered in said clerk’s office on tbe 6th day of November, 1893, upon the denial of tbe defendant’s motion for a new trial,…

Appeal by the defendant, De Forest Snyder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 31st day of July, 1893, upon the decision of the court rendered after a trial at the Herkimer Circuit.

Appeal by the defendant. The Board of County Canvassers of Jefferson County, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Jefferson on the 11th day of December, 1893, directing that a peremptory writ of mandamus issue, requiring the defendant to recanvass the votes cast at a certain election for school commissioner in the third school commissioners district of the county of Jefferson.

Appeal by tbe defendants, Snsan Row and another, from a judgment of the County Court of Oswego county in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 5th day of August, 1893, upon the decision of the court, with notice of an intention to bring up for review two orders made the 18th day of July, 1893, and entered in said clerk’s office, one of which denied the defendants’ motion to settle the issues, and the other struck out the…

Appeal by the plaintiff, Christina Kuhn, as administratrix, etc., of Joseph Kuhn, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 14th day of December, 1893, upon the dismissal of the complaint after a trial at the Oneida Circuit, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 14th day of December, 1893, denying the…

Appeal by the defendant, Winfield S. Stone, as sheriff of Broome county, from an order of the Supreme Court, made at the Chenango Special Term and entered in the oifice of the clerk of the county of Broome on the 18th day of November, 1893, granting the plaintiffs’ motion for a new trial made upon a case and exceptions, and setting aside the Yerdict and granting a new trial in the action.

Appeal by tire defendants, Edwin L. Loomis and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 3d day •of May, 1893, upon the report of a referee, with notice of an intention to bring up for review on such appeal the rulings of the said referee upon the trial, his findings of fact and conclusions of law.

Appeal by the defendant, Milton C. Gray, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 26th day of January, 1894, upon the decision of the court rendered at the Oneida Special Term, overruling the demurrer to the complaint.

<p>Use of a defective sidewalk — contributory negligence, a question for the jury — negligence of an infant — an error in the plan of construction.</p> <p>A passenger upon a street lias a right to use its sidewalk, although knowing it to he in an unsafe condition, and if he is injured it is a question for the jury whethei he was guilty of any carelessness which contributed to the injury; the degree of care required of a person approaching a situation known to he dangerous is, as a general rule, to bo determined by the jury.</p> <p>An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age, and in passing upon the question as to the contributory negligence of an infant, the age of the infant, with all the other circumstances of the case, are to be considered by the jury, and that which in the case of adults might, as matter of law, be considered contributory negligence, may, in the case of infants of tender age, present a question of fact for the jury.</p> <p>Upon the trial of an action brought to recover of a city damages for injuries alleged to have been sustained from a fall occasioned by the defective condition of a sidewalk, it was shown that the accident happened at the southeast corner of Henderson and Oak streets; that the occupant of the corner lot had built a new sidewalk on Henderson street upon a grade fixed by the city engineer of the defendant. This sidewalk, at the point where it stopped near the margin of the sidewalk of Oak street, was about a foot higher than the walk on Oak street, and the two were connected by a slant of earth about sixteen inches long.</p> <p>The trial court refused to charge, as requested by the defendant, that if the condition of the walk was the result of an error of judgment in determining the plan of construction the plaintiif could not recover.</p> <p>Held,, that the trial court properly determined that the rule as to the plan of construction did not apply.</p>

Appeal by tbe defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of tbe county •of Oneida on tbe Ith day of April, 1893, upon the verdict of a jury rendered after a trial at tbe Oneida Circuit, and also from an order entered in said clerk’s office on tbe 1st day of April, 1893, denying tbe defendant’s motion for a new trial made upon tbe minutes, with notice of…

Appeal by tbe defendant, The National Life Association, 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 26th day of October, 1893, upon the decision of the court rendered after a trial at the Jefferson Special Term.

<p>Pleadings in a, partition, suit — a demurrer may not be served by one defendant to another defendant’s answer.</p> <p>By section 140 of the Code of Procedure all the forms of pleading theretofore existing were abolished, and thereafter the forms of pleading in civil actions in courts of record and the rules by which the sufficiency of the pleadings should be determined were those prescribed by that act.</p> <p>A demurrer can only be served in the particular cases prescribed by the Code of Civil Procedure, and no pleading is demurrable unless it is subject to one or more of the objections specified in the section of the Code of Civil Procedure defining the grounds of demurrer.</p> <p>In an action of partition no answer served pursuant to section 1543 of the Code of Civil Procedure can be demurred to by a co-defendant upon whom it is served.</p>

<p>Floating logs on a river — when the owner of the logs is not liable for damages to a. dam caused thereby — contributory negligence of the owner of the dam.</p> <p>A person has the right to use to a reasonable extent a river (-which is navigable-for the purpose of floating logs) for floating logs thereon through another’s land; what is a reasonable use is a question of fact depending upon all the-circumstances of the case.</p> <p>Where logs are driven on a navigable river in an ordinary, prudent and skillful manner, the owner is not liable for damages which may result to the lands of riparian owners, and if the owner of a dam, injured by the floating of logs, has been guilty of negligence in the construction of his dam which has contributed to the injury, he cannot recover therefor.</p>

<p>Territorial jurisdiction of a justice of the peace — statutes, hoto construed— Code of Civil Procedure, § 2869 — chapter 74 0/1893.</p> <p>The first four subdivisions of section 2869 of the Code of Civil Procedure, as amended by chapter 74 of the Laws of 1893, relating to special cases, operate to enlarge the jurisdiction of a justice of the peace, and are not dependent upon the limitations stated in the first or main clause of that section.</p> <p>Subdivision 5 thereof operates to diminish the jurisdiction of the justice as given in the main clause, and it is in form only applicable as an exception to the cases covered by the main clause and does not affect or limit the positive, independent and additional powers given in the other subdivisions.</p> <p>An action must be brought before a justice of the peace of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except that in any town adjoining an incorporated city no justice of such town has jurisdiction of any action brought by or against a resident of such adjoining city, unless at least one of the parties to the action is a resident óf such town.</p> <p>In the construction of a statute the intention of the Legislature is the main thing to be considered, and a construction which leads to a reasonable and consistent result is to be preferred, for it is not to be presumed that an absurdity or contradiction is intended. The probable object in the changing of the law is to be considered.</p>

Appeal by the plaintiff, The People of the State 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 Broome on the-17th day of May, 1893, upon the decision of the court rendered at. the Broome Circuit dismissing the plaintiff’s complaint.

Appeal by the defendant, The City of Syracuse, 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 6th day of February, 1893, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 2d day of March, 1893, denying the defendant’s motion for a new trial made upon the minutes.

<p>Action, on a check — what is not a mistrial — a bank is changeable with the knowledge of its cashier — renewal check tainted with the original fruud- — return of the former check unnecessary — rescisión of contract — courts will not protect a person from the consequences of his own dishonesty.</p> <p>The trial of an action was commenced before a jury which passed on the several questions submitted to it, and thereafter further findings of fact were made by the court.</p> <p>Held, that it must be assumed that there was not a mistrial; that it was in substance a trial by the court without a jury, and a decision upon the whole evidence, with the aid of the jury as to the questions of fact submitted to it.</p> <p>The evidence considered and commented upon which is insufficient to establish, as a matter of law, that a person is a bona fide holder without notice of a check, and under which a finding of fact that he is not a bona fide holder is not against the weight of evidence.</p> <p>A person had been acting for some time as the cashier of a bank, having supervision of its affairs and charge of its discounts and collections, and, as such cashier, had charge of the discount of a check, a recovery upon which it was sought to defeat, upon the ground that it was obtained by fraud.</p> <p>Held, that the cashier’s acts were binding upon the bank, and that it was chargeable with his knowledge or the notice he had in relation to the matter.</p> <p>A post-dated check was delivered to the cashier of a bank, which upon the maturity of the check had not acquired a bona fide ownership thereof. Upon the trial of an action brought to recover the amount of a check given by its maker in renewal thereof, it appeared that the cashier of such bank co-operated with the person who procured such check to be discounted to obtain an extension of time or a renewal of the check.</p> <p>Held, that, as the bank did not have title as a bona fide holder of the first check, it had no valid claim against the maker of the second check, which was tainted with the original fraud.</p> <p>"Where a "bank, holding a note with indorsers vitiated by fraud of which the bank had knowledge, takes a new note in renewal thereof, surrendering the first note, it cannot set up as an answer to the defense of fraud, interposed to an action on the second note, that the first note has not been returned to it, where it appears that the indorsers on the first note could not be held by the bank for its payment. *</p> <p>Semble, that the first note would be of no more value to the plaintiff than a note from which the name of the maker was stricken, leaving only the names of the indorsers thereon.</p> <p>It is unnecessary for a party to a piece of fraudulent paper to return it to a person, not entitled to enforce it because of such fraud, as a condition precedent to the right to defeat a recovery upon another piece of paper given in substitution therefor, in continuation of the fraud, and as a part of the same fraudulent scheme, which defeats the right of recovery against the makers of it.</p> <p>In cases of the rescisión of a contract, the rule is that the party shall not retain the thing which is the subject of the contract.</p> <p>If a fraudulent purchaser of property suffers what is due to his own fraudulent and dishonest act, the court will not strive to protect him from these consequences of his own dishonesty.</p>

<p>Injuries resulting from an alleged defective condition of a village street — contributory negligence — cha/rge as to the duty of the village — to be construed as a whole,</p> <p>A municipality does not perform its whole duty in respect to keeping its streets in a safe condition for travel by instructing its subordinates to ascertain the facts in regard to their condition and report thereon.</p> <p>Upon the trial of an action brought against a village to recover damages received from a fall, caused by the alleged defective condition of one of its streets, the court, among other things, charged the jury that it was the absolute duty of the defendant, through its officers, to see to it that the public streets and sidewalks maintained by it were put and kept in a reasonably safe condition with reference to public travel, and that they were kept reasonably ■ and suitably safe for persons who desired to pass over and along the same. The court also charged that a village might or might not construct a sidewalk, but that, having constructed one, it was its absolute duty to see that such sidewalk was at all times, both night and day, reasonably safe and suitable for foot passengers ; that if such village had discharged its duty in that respect with such vigilance as the law required, it was exempt from liability for any accident which might occur; that the village was not an insurer against accident, but that its officers, in taking upon themselves the responsibility of the government of the affairs of the municipality, say to those who are invited along and upon their walks and streets, that they may go there lidth the assurance that the corporation and its officers have performed their duty in all respects as to keeping the sidewalks in suitable and safe repair.</p> <p>The counsel for the defendant excepted to that portion of the charge in which it was stated that an absolute duty rested upon the defendant to see that its streets and sidewalks were put and kept in a reasonably safe condition for public travel, and safe for people to pass over them, and also to that portion of the charge in ' which it was stated that the obligation rested upon such municipality to keep its sidewalks in repair, and that it must see to that duty, and that it was an absolute duty.</p> <p>The court stated that it did not say that it was an absolute duty to keep its sidewalks in repair, but that such municipality owed an absolute duty to the public to keep its sidewalks in a reasonably safe and proper state of repair.</p> <p>The counsel for the defendant then stated that he excepted to the proposition as then charged, and also to that portion of the charge in which it was stated that when a village had once constructed a walk it was its business to see that such walk was kept reasonably safe for persons to pass over it all the time, so that those who were invited to travel along its walks and streets might go there with the assurance that the municipality had kept them safe and in repair.</p> <p>Held, that the language used by the trial judge in the body of his charge and in response to the defendant’s exceptions construed as a whole was proper.</p> <p>In construing, upon an appeal, the charge of a court to the jury, isolated portions thereof should not be singled out, but the whole charge should be considered together.</p>

<p>A counterclaim must be alleged to home existed when the action was commenced — scope of, and evidence receivable under, a general denial.</p> <p>In an action brought on contract, the right to set up and prove as a counterclaim any other cause of action on contract, depends upon the existence of such counterclaim at the time of the commencement of the action, and an answer setting up a counterclaim which fails to show that it existed at the time of the commencement of the action is demurrable.</p> <p>Under a general denial, in an action on contract, a party may controvert by evidence anything which the other party is bound to allege and prove in the first instance to make out his cause of action, and anything which he is permitted to prove for that purpose.</p>

Appeal by the defendants, George D. Moffatt 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 Lewis on the 31st day of May, 1893, upon a decision of the court rendered after a trial at the Lewis Special Term, and from the whole of said judgment, except that portion adjudging a mortgage held by the defendant Hannibal Smith to be a valid lien upon the premises described in the complaint.

Appeal by the defendant, the Horse Owners’ Mutual Indemnity-Association of Rochester, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 9th day of November, 1893, upon the report of a referee.

Appeal by the contestants, Edwin B. Weeks and others, from an ■order of the County Court of Tompkins county, entered in the •office of the clerk of the county of Tompkins on the 10th day of November, 1893, modifying the findings and report of commissioners, with notice of an intention to bring up for review on such appeal the report of the commissioners dated July 11, 1893, and all other proceedings in the application.

<p>Appeal by the defendants, J. Herman Merrill, supervisor of the town of Stockbridge, 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 Madison on the 10th day of July, 1893, upon the decision of the court rendered after a trial at the Madison Circuit.</p>

Appeal by the defendant, The Board of Water and Sewer Commissioners of the Yillage of Watkins, from a judgment of the County Court of Schuyler county in favor of the plaintiffs, entered in the office of the clerk of the county of Schuyler on the 21st day of April, 1893, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of April, 1893, denying the defendant’s motion for a new trial made upon the minutes.

<p>Damages for personal injm'ies — evidence of plaintiff’s decimations as to headache — non-expert evidence.</p> <p>In an action brought to recover damages for personal injuries, alleged to have been sustained by reason of the negligence of a village, it is an error to receive in evidence declarations of the plaintiff as to headache, made several months after the occurrence of the accident, and to permit non-expert witnesses to testify as to the mental condition and impaired memory of the plaintiff after the accident.</p>

Appeal by tbe defendants, Harry Burton and another, from a judgment of the Court of Sessions held in and for the county of Otsego on the 8th day of December, 1892, convicting the defendants of the crime of arson.

<p>Slander —justification, when insufficiently pleaded — amendment of the answer on the trial — evidence in mitigation of damages — power of an a/ppellate court to modify a verdict — when exercised.</p> <p>The justification contained in the answer in an action for slander must be as broad as the charge made, and in case the justification is not as broad as the charge, it is not incumbent upon the plaintiff to move to make .the answer more definite and certain, but she has the right to object on the trial to the reception of any evidence not authorized by the answer.</p> <p>A motion, made upon the trial of an action brought to recover damages for slander, for leave to amend the answer in such wise as to make the justification alleged therein in mitigation of damages as broad as the charge, is addressed to the discretion of the court.</p> <p>In an action of slander only such matters are competent in mitigation of damages as were known to the defendant before and at the time of uttering the slanderous words.</p> <p>The complaint in an action for slander stated that the slanderous words were uttered as stated therein “in and about the- month of July, 1892, the exact dates the plaintiff cannot now more particularly state.” Upon the trial evidence was allowed, against the defendant’s objection and exception, as to conversations which occurred in May and June of that year.</p> <p>Held, that the rule made by the trial judge did not transcend the rule of law applicable to such cases.</p> <p>The General Term of the Supreme Court, upon an appeal from a judgment in favor of the plaintiff in an action brought to recover damages for slander, has the power to reduce the damages awarded by the jury if it entertains the opinion that the award was excessive; but when a verdict is rendered upon conflicting evidence, as to the essential features of the case which entered into the question of damages, both compensatory and punitive, which is not so large as to indicate passion or prejudice, it is not in accordance with the general rules of such court to interfere with such a verdict.</p>

Appeal by the plaintiff, The Village of Sandy Hill, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 20th day of October, 1893, upon a decision of the court rendered after a trial at the Washington Circuit, dismissing the plaintiff’s complaint upon the merits and for costs. The complaint in this action alleged: “ II.