Volume 91 — New York Supreme Court Reports

Appeal by the plaintiff, Simon Rothschild, 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 12th clay of May, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit.

<p>Award of arbitrators — not inteifei'ed with by the courts except for fraud — when it may be rejected, in part.</p> <p>Where arbitrators keep -within their jurisdiction, their award is unassailable unless for corruption, fraud or like misconduct, and will not be sot aside for errors of law or fact upon their part.</p> <p>Where the award of arbitrators is severable, that which is improper may be rejected, allowing the balance which is proper to stand.</p>

Appeal by tlie defendant, William F. McCabe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office •of the clerk of the county of Westchester on the 10th day of November, 1891, upon the report of a referee.

<p>Appeal by the defendant, George J. Hubbard, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 22d day of October, 1894, upon the decision of the court, rendered $fter a trial at the Orange Special Term, sustaining the plaintiffs demurrer to the defendant’s answer.</p>

Appeal by the jietitioner, Charles A. Walters, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 19th day of September, 1894, denying the petitioner’s application for a peremptory writ of mandamus to compel the respondent to admit Chester A. Walters and another to Public School No. 22.

<p>Tenure of office under section 3 of article 10 of the Constitution of Tfeio York— Commissioners of Improvements of the town of Westchester.</p> <p>The provision of section 3 of article 10 of tlie Constitution of the State of New York, providing that, “ when the duration of any office is not provided for hy this Constitution, it may be declared hy laAV, and if not so declared such office shall he held during the pleasure of the authority making the appointment,” relates not only to offices existing at the time of this enactment hut also to offices since created. It relates, liOAvever, only to cases where the appointment is continuous and not to cases Avhere the power of appointment is exhausted Avhen once exercised, and it does not apply to cases Avliere the tenure of office is fixed hy statute.</p> <p>By the provisions of chapter 453 of the Laws of 1889 the commissioners of improvements of the toAvn of Westchester, Westchester county, New York, are created a body corporate hy the appointment of five persons hy the supervisor, with power in said body corporate to fill vacancies caused therein. The tenure of tlieir office is unlimited, and the corporation lias the attribute of perpetual succession by means of its own members filling vacancies.</p> <p>The supervisor of the town lias power to fill a vacancy in said commission only in default of the remaining commissioners doing so.</p> <p>The title to the office of commissioner of improvements of the town of Westchester, Westchester county, New York, can be tested only by quo warranto.</p>

<p> Duty of a railroad company to provide safe appliances. </p> <p>A railroad company is bound to provide reasonably safe appliances for its employees, and the employees have a right to act in reliance upon the performance of this duty by the employer.</p>

<p>Honorably discharged soldier — reinstatement as a laborer in the park department of the city of Brooklyn — denied because of his laches.</p> <p>Although an honorably discharged Union soldier be wrongfully discharged by the commissioner of parks in the city of Brooklyn, if he neglects to make an appli- ■ cation for reinstatement until two years and nine months after the time of his discharge, his laches prevents his reinstatement.</p>

Appear by the defendant, The Germania Fire Insurance Company of the City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rockland on the 25th day of October, 1894, upon the verdict of a jury rendered after a trial at the Rockland Circuit, and also from an order entered in said clerk’s office on the 15th day of October, 1894, denying the defendant’s motion for a new trial made upon the minutes.

<p>Damages for a breach of a contract for the sale of real estate — bar to an action — a right of way abandoned — dependent covenants.</p> <p>In. an action brought by the assignee of the vendee named in a contract for the sale of real estate, to recover damages for an alleged breach thereof, the defendants sought to charge the plaintiff with a specific performance of the contract. The assignee did not in the assignment assume the obligations of the contract, and the contract could not have been enforced against him.</p> <p>In an action thereafter brought by the assignees of the defendants in the prior action against the assignor of the vendee named in said contract to recover damages for an alleged breach thereof,</p> <p>Held, that the fact that the defendants in the former action had sought to charge a person not liable to them did not preclude them from, maintaining an action against the right person.</p> <p>Where a person for over thirty years continued in the open adverse occupation of land covered by a right of way under a claim of ownership, under such circumstances as warranted the conclusion that the right of way had been abandoned, it cannot be said that the right of way is an incumbrance upon the real estate.</p> <p>A cessor to use, accompanied by an act clearly indicating an intention to abandon the right, has the same effect as a release without reference to time.</p> <p>The rule as to dependent covenants requires only that a tender of the deed precede an action for the purchase money.</p>

Appeal by tbe defendants, The Brooklyn, Bath and West End Railroad Company 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 Kings on the 22d day of May, 1894, upon the decision of the court, rendered after a trial at the Kings County Special Term, enjoining and restraining the defendants from making certain changes in the operation and construction of their railroad lines.

<p>JDuties of a trustee.in the defense of the trust fund and the purpose of its c/reatoi'— authority to incur reasonable expenses for counsel fees.</p> <p>A trustee’s duty is not satisfied by merely defending suits which tend to diminish the trust estate. He is bound as well to use due diligence to carry out the intention of the creator of the trust.</p> <p>When an assault is made upon the trust instrument by means of a suit in equity, if there be a defense to it, the trustee should make it. If the suit be one for the construction of the instrument the trustee is bound to present to the court the reasons, if any there may be, which call for such a construction of the will ’ as accords with the intention of the trust maker.</p> <p>The trustee is burdened with, the responsibility of using reasonable care and diligence to protect and execute in all its integrity the provisions of the instrument creating the trust, and appointing him to attend to its execution, and this duty is none the less obligatory because he happens to be a beneficiary under the instrument of which he is also trustee and may to some extent profit by a successful defense of a suit which assails one or more of its provisions.</p> <p>The necessary and reasonable expenses incurred by a trustee in the performance of any duty imposed upon him by law constitute a charge upon the trust estate, and he is entitled to be reimbursed therefrom.</p> <p>It is ordinarily the duty of the executors of the will of a decedent to use reasonable diligence to secure such a construction of the will as will be agreeable to the intention of their testator, and they have authority to incur, such expenses, including the payment of counsel fees, as are reasonable and necessary for the due performance of such duty.</p> <p>What constitutes reasonable counsel fees is not committed to the discretion of the trustee. The court which passes upon his accounts must determine that question. It will first inquire whether the trustee had the right to incur any expenses, and if that question be decided in the affirmative it will next determine what amount it was reasonable and necessary for him to have expended for the purpose, and if his actual expenditures exceed such sum the excels must be borne by the trustee in person.</p>

<p>Action, enjoining the enfoi’cement of a forfeiture, when maintainable — a complaint ashing for an accounting, which is not necessa/ry, must be dismissed,</p> <p>A suit to enjoin, the defendant from the enforcement of a forfeiture or from molesting the plaintiff in its business of manufacturing and selling goods under a license given it by the defendant, after a due and formal tender made and kept good of the amount admitted to be due, is proper, and if the allegations of a complaint so framed are found to be true, relief will be granted. Where, however, the complaint in the action is framed so that if there is no right to an accounting there is no right to any part of the specific relief sought, the complaint must be dismissed, if, by the plaintiff’s own showing, there is nothing to be accounted for.</p>

<p>Affidavit upon a motion for anew triulon the ground of newly-discovered evidence — by whom it must be made — what must be shown therein— contract between client and attorney.</p> <p>A motion for a new trial because of newly-discovered evidence must be founded on the affidavits of the newly-discovered witnesses, unless it be shown that their affidavits cannot be obtained, and such affidavits must disclose the facts to which the newly-discovered witnesses will testify, it not being sufficient to state that they would “ corroborate and substantiate the testimony ” given by a certain witness.</p> <p>A contract made by an attorney with an heir at law or next of kin of a decedent, by which he is to receive for his services a large-share of his clients interest in the estate, is always regarded with, suspicion, and if the attorney seeks to enforce it the burden is upon him to show that the contract is fair and just and that his client acted understandingly and with full knowledge of all the facts connected with the transaction.</p>

<p>Instrument executed by a feeble person as his will■ — the execution and preparation thereof will be carefully scrutinized —- eironeous belief of a testator.</p> <p>The courts will scrutinize carefully the circumstances attending the preparation and execution of an instrument offered for probate as the last will and testament of a decedent who was feeble and advanced in years at the time of the execution thereof.</p> <p>An erroneous belief suggested as a reason for the disinheritance of an heir, in order to affect the validity of the will of a decedent, must be shown to be an insane delusion.</p>