Volume 95 — New York Reports

(Reported below, 28 Hun, 528.) The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff, having received and retained a part of the proceeds of the alleged conversion, cannot maintain this action until he returns, or offers to return, the sum so received.

This action was brought to compel a specific performance of a covenant in a lease, for a sale and conveyance of the demised premises. The material facts are stated in the opinion. In making the residuary fund, and in collecting and paying over its income as directed by the will, the executors acted only as executors, and not as trustees.

(Eeported below, 28 Hun, 615.) This action was brought to obtain a judicial construction of certain provisions in the will of Burr Wakeman, deceased, and in a codicil thereto.. The provisions in question as well as the material facts are set forth in the opinion. The accumulations of income provided for are expressly prohibited by the statute.

<p>The word “heirs,” when applied to the succession of personal estate, means “next of kin;” the latter term refers to relatives by blood, and does not include a widow.</p> <p>The will of G. gave her residuary estate to her executors, in trust, with power to receive the rents and profits of the real estate, and to sell the same when and in such manner as in their discretion might seem expedient; also to convert and collect the personalty, to invest the proceeds of both, and, after setting apart out of the estate or the proceeds a sum specified, to receive the rents and income of the remainder, and apply the same to the use of the testator’s husband during life. After his decease, and after the deduction of certain legacies given out of the fund, she directed the residue to be divided into certain shares or. parts, each of which she gave to a beneficiary named, one part being given to D., who resided in Illinois; the clause closed thus, “the heirs of any or either of the foregoing persons who may die before my said husband to take the share which the person or persons so dying would have taken if living.” D. died in the life-time of the husband, leaving a widow, but no children; he left a will, wherein he gave to his wife all his interest under the will of G.; the husband of the latter thereafter died intestate. By the laws of Illinois, in case D. had died intestate his widow would have been entitled to all of his personal estate. In an action to determine, among other things, the interests of the parties under the will of G., held, that by the terms of the will all of the real estate of the testatrix was, upon the death of her husband, to be converted into money for the purpose of distribution, and hence the whole estate at that time was to be considered as personalty; that the interest, however, of D. therein terminated upon his death, and his heirs were entitled to take by substitution; that, therefore, D. could and did convey nothing by his will; that the word “ heir ” referred only to relatives by blood, and did not include the widow of D.; and that, therefore, she was not entitled to any portion.</p> <p>The authorities in this State defining the words “ heirs ” and “ next of kin ” collated; and the English authorities and those of the other States, holding that those words included a widow, cited, and their doctrine disapproved.</p>

Mead, a creditor holding a claim against the estate of John P. Jenkins, deceased, for an order requiring the administrators of said estate to show cause why they should not mortgage, lease or sell the real estate, of which the decedent died seized, for the payment of his debts. (Reported below, 27 Hun, 570.) The claim was a promissory note, which fell due February 11, 1871; the intestate died March 19, 1871. Letters of administration were issued April 14, 1871.

These were cross-appeals from different portions of judgment of the General Term of the Supreme Court, in the fourth judicial, department, entered upon an order made at. the October Term, 1882, which affirmed in part and reversed in part a decree of the surrogate of the county of Livingston upon an accounting of the executors of the will of James S. Wadsworth, deceased. The case is reported upon a former appeal in 74 N. Y. 539.

. Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made November 15, 1881, which affirmed a judgment in favor of plaintiffs entered upon the report of a referee.

Appeal by James Hughes as administrator of the estate of Peter Hughes, deceased, from a judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made February 13, 1883, which affirmed a decree of the surrogate of the county of Kings. The decree was upon the final settlement of the accounts of said administrator.

<p>The lien of a mortgage held by executors is effectually barred by the foreclosure, by action, of a prior mortgage, to which said executors are made parties.</p> <p>The title to a testator’s personalty vests in the executors, as such, by operation of law, and although they are also appointed trustees, their title as executors is paramount to that as trustees; in the latter capacity they take only as legatees.</p> <p>Land bought in by executors on foreclosure of a mortgage belonging to the estate is to be treated as personalty, and to be accounted for as such; and whether the deed is taken in the names of the executors as such or in their individual names, the legal title is in them, and they may sell the same, although no power of sale is contained in the will; the beneficiaries under the will take no direct interest in the property, and while they may require the executors to account therefor, they cannot dispute the title of a purchaser from the executors.</p> <p>R, at the time of his death owned a second mortgage upon certain premises, which was foreclosed by his executrix, who bid in the property at the foreclosure sale and received a conveyance to herself as executrix. Plaintiff, who held the first mortgage, thereafter foreclosed the same, making the executrix, as such and individually, a party defendant. On the foreclosure sale plaintiff became the purchaser, and received a conveyance; he subsequently contracted to sell to defendant, who refused to complete the sale because certain beneficiaries under the will of R. were not made parties defendant in plaintiff’s foreclosure suit. In an action to compel a specific performance of the contract of foreclosure, held, that the objection to plaintiff’s title was not well founded.</p> <p>2Yodine v. Greenfield (7 Paige, 544), Williamson v. Meld (2 Sandf. Cli. 563), distinguished.</p>

Callaghan, deceased. The facts, so far as material, appear in the opinion.

(Reported below, 29 Hun,. 295.) The nature of the action and the material facts are stated in the opinion. The executors are mere naked trustees, with power to give upon a certain contingency ; there is nothing compulsory about it. (Perry on Trusts, 228, § 248.) The court could not execute the power in default of an appointment.

(Reported below, 29 Hun, 105.) This action was brought by plaintiff, as administrator of the estate of Patrick Cain, to recover damages for the death of said intestate, which was alleged to have been caused by defendant’s negligence.

(Reported below, 29 Hun, 161.) This action was brought originally against Thomas W. Olcott, the present defendants’ testator, a stockholder of the Olcott Iron Manufacturing Company, to recover a debt of the corporation, on the ground that its capital stock had not been paid in. The material facts are stated in the opinion.

This action was brought to obtain a construction of the will of Nathaniel A. Lowry, deceased, and for an accounting by defendant, Alexander M. Lowry, as trustee.

(Reported below, 17 J. & S. 498.) This action was brought against defendants as executors of the will of Daniel Jones to compel them to transfer and deliver to plaintiff fifty $1,000 bonds and one hundred and twenty-five shares of the stock of the Denver and Rio Grande Railroad Company, or to account for and pay over the value thereof and all interest and dividends received by their testator thereon. The material facts are stated in the opinion.

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, made September 10, 1883, which affirmed an order of Special Term granting a writ of peremptory mandamus, directed to defendants as justices of the peace in the town of New Lots, in the county of Kings, requiring them to meet as the board of canvassers of said town and canvass the ballots cast for justices of the peace at the annual town meeting held in said town in April, 1883.</p> <p>The said town being in a county having more than three hundred thousand inhabitants, in consequence of the passage of the act chapter 564, Laws of 1881, no election was had for a justice of the peace to fill the place of the one whose term expired on the last day of December of that year. At the general election of that year, in pursuance of said act, ballots were cast for said office, of which defendant, William Watson, received a majority, and was declared elected; he qualified and entered upon the duties of the office. At the annual town meeting, held in said town in April, 1883, ballots were cast for justices of the peace “ to fill vacancy,” and others to elect a successor the justice whose term expired December 31, 1883. Of the ballots cast “ to fill vacancy ” the relator received a majority. The inspectors of election duly counted and canvassed said ballots, and returned the same to the town clerk, which returns were filed by him. The said town meeting was held from twelve, noon, until sunset, as prescribed by said act. By resolution of the board of supervisors of said county, passed pursuant to the act of conferring “ on boards of supervisors further powers of local legislation” (Chap. 482, Laws of 1875), the justices of the peace of said town are required, as the board of canvassers, to canvass the votes cast at town meetings. Said justices met, as such board of canvassers, on the next day after said town meeting, said Watson acting with them, but they omitted and refused to canvass the votes for justices cast as above stated or to make any certificate thereof, and after performing other duties adjourned without day.</p> <p>Section 2 of chapter 564 of the Laws of 1881, which provides that supervisors and justices of the peace in towns to which said act applies, “ shall be elected at the general election next following the town meet, ing at which they would have been elected if this act had not been passed,” is unconstitutional in so far as it relates to justices of the peace. (Ex parte Quackenbush, 2 Hill, 369 ; Geraty v. Reid, 78 N. Y. 64; People v. Keeler, 17 id. 370-3; People v. Bull, 46 id. 57.) By law a justice of the peace elected for a full term (four years) enters upon the duties of his office on the first day of January next succeeding his election. (Laws of 1829, chap. 356, § 3; 1 R. S. [7th ed.] 810.) A justice of the peace elected to fill a vacancy, or the unexpired portion of a term, enters upon the duties of his office “ forthwith.” (Laws of 1880, § 1, chap. 290; 1 R. S. [7th ed.] 810; People v. Keeler, 17 N. Y. 370.) Ho notice of an annual town meeting is required, and there is no one to give it. (Part 1, chap. 11, title 2, art. 1, § 8; 1 R. S. [7th ed.] 810; People ex rel. v. McKinney, 52 N. Y. 374.) Where official notice is required to be given, failure to give it does not deprive the electors of the right to vote for and fill the office. (People, ex rel. v. Cowles, 13 N. Y. 350-9; People, ex rel. v. O'Brien, 38 id. 193-5; People, ex rel. v. Cook, 8 id. 67; Cooley’s Const. Lim. 603.) A town could hold the town meeting any length of time between sunrise and sunset that the electors might choose. (5 N. Y. 23-5.) The validity of the election cannot be passed upon on this application. (McCrary on Elec., § 337; People v. Cook, 8 N. Y. 67-92; Laws of 1881, chap. 123.) The justices of the peace are required to canvass these votes by the act or resolution of the board of supervisors of Kings county, passed January 17, 1878, pursuant to section 26 of the Laws of 1875. (R. S., part 1, chap. 6, title 5, arts. 1, 2, §§ 10, 11, 21; 1 id. [7th ed.] 391.) The contention that by the act of 1881 the legislature changed annual town meeting day to general election day is without foundation. (Democracy in America, De Tocqueville, 59-63 ; Strong’s History Flatbush, 49; Ex parte Quackenbush, 2 Hill, 369.)</p>

The order of General Term vacated both orders. (Reported below, 29 Hun, 626.) The facts so far as material are stated in the opinion. Questions affecting the constitutional validity of an act should be most carefully considered, and courts should hesitate in pronouncing a law unconstitutional and void unless such a construction is clearly warranted beyond any reasonable doubt.

(Reported below, 30 Hun, 385.) The facts so far as material are stated in the opinion. When a will is executed in duplicate it is necessary to present both duplicates for probate. (Code Civ. Pro. §§ 2472, 2614, 2635; Bloom v. Burdick, 1 Hill, 139; Jones v. Reed, 1 Johns. Cas. 20; 4 Black. Com. 268; Rex v. Whitear, 3 Burr. 1366 ; Corwin v. Merritt, 3 Barb. 341, 343.) Both copies so executed constitute the will.

This action was brought hy plaintiff, as executrix of the will of Samuel W. Johnson, deceased, against defendants, the surviving executors of the will of William T. Garner, deceased, and against the beneficiaries under said will, to recover one-half the statutory commissions claimed to be due to said Johnson at the time of his death as one of the trustees under said will for receiving the estate as trustee.

<p>Appeals from order of the General Term of the Supreme Court, in the second judicial department, made Hay 14, 1883, which reversed a judgment entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought for the purpose of obtaining an adjudication as to the validity of certain bequests to charitable uses in the will of William H. Hollis, deceased.</p> <p>The material facts are stated in the opinion.</p> <p>Section 6 of chapter 319 of the Laws of 1848, does not, by its own unaided force, make void the bequests to the Drew Theological Seminary and the Wesleyan University. (Stephenson v. Short, 92 N. Y. 433.) The legacies to charitable uses were valid in any event to the extent of one-half the estate after payment of the testator’s debts. (Laws of 1860, chapter 360.) The Northampton tables furnish the standard data from which in the absence of other evidence the present value of annuities and endowments depending on lives may be ascertained. When the legal rate of interest is six per cent, the value of the annuity or endowment is taken on the basis of five per cent, to allow for losses by interruptions in investments. (Supreme Court Rule, 71; Schell v. Plumb, 55 N. Y. 592; Sauter v. N. Y. C. R. R., 6 Hun, 447.) The expectation of life is less by the Northampton or Carlisle tables than by the American Experience tables. (American' Experience Table, Laws of 1868, p. 1317; 1 Northampton Table in Jones on Annuities, 235-6-7.)</p> <p>The bequests to the Drew Theological Seminary and Wesleyan University are void, by reason of the fact that the will was executed within two months of the testator’s death. (Sherwood v. Am. Bible Soc., 4 Abb. Ct. of App. 227, 232; Chamberlain v. Chamberlain, 43 N. Y. 424, 432; People v. Asso. of Phila., 92 id. 311, 324.) The comity by which the existence of foreign corporations is recognized here will not be carried to the extent of enforcing a claim in their favor in violation of the general policy of this State. ( White v. Howard, 52 Barb. 294, 309; B'k of Augusta v. Earle, 13 Peters, 519; Bond v. Poole, 2 Kern. 495 ; Chamberlain v. Chamberlain, 43 N. Y. 424, 434; Despard v. Churchill 53 id. 192; People v. F. Ass. of Phila., 92 id. 324.) It is against the policy of this State to uphold bequests made to a certain class of corporations by a testator within two months of his death. (Const., art. 8, § 1; Johnson v. H. R. R. R. Co., 49 N. Y. 455, 458 ; Willard’s Eq. Juris. 576 ; Beekman v. People, 27 Barb. 260, 299, 305 ; Kerr v. Dougherty, 79 N. Y. 327, 339; Levy v. Levy, 33 id. 97, 118; Stephenson v. Short, 92 id. 433, 444.) While it is not necessary to contend that the restrictions contained in the act of 1848 apply to all domestic corporations of the class referred to, whether incorporated by special act or under the general law, it may be that they do. (Marx v. Glynn, 88 N. Y. 357, 376 ; Beekman v. People, 27 Barb. 260, 304, 305; Johnson v. H. R. R. Co., 49 N. Y. 455, 458.) It may well be said that if the legislature creates by special act a corporation of the same class as those formed under the general law, and does not either in express terms, or by reference to the general act make such corporation subject to its restrictions and limitations, that it thereby intends to exempt such corporation from those restrictions and limitations. (Lawrence v. Elliott, 3 Redf. 235, 242; Rochester v. Barnes, 26 Barb. 657, 662; Lefevre v. Lefevre, 59 N. Y. 434, 448.) A statute may declare the general policy of the State notwithstanding that there may be exceptions to it; for instance, it is the general policy of the State that corporations shall not take by devise, and therefore foreign corporations cannot; but domestic corporations may be authorized by their charters to do so. (2 R. S. 57, § 3 ; White v. Howard, 52 Barb. 294, 309; affirmed, 46 N. Y. 144, 163-166.) If the act of 1843 does not apply to the bequests to the appellants, they still must abate, because they exceed one-half the estate of the testator after payment of his debts. (Laws of 1860, ch. 360; Chamberlain v. Chamberlain, 3 Lans. 348, 358; Savage v. Sherman, 24 Hun, 307, 314; Justinian Inst., cited by Judge Fullerton in Harris v. Am. Bible Soc., 2 Abb. Ct. of App. 316, 324; Kearney v. Missionary Soc. of St. Paul, 10 Abb. N. C. 274; Matter of Leary’s Estate, 11 Tucker, 233.) The object of the act of 1860 was to protect the wife, children and parents of a testator. (Chamberlain v. Chamberlain 43 N. Y. 424, 440.) It is only the residue left after payment of the other legacies mentioned which the testator intended to give to the appellants. (Roper on Legacies, 411; Wms. on Exrs. 1360.) "The general rule as to the abatement of legacies cannot be changed at the election of the appellants, and not even by the language of the will, unless the intention of the testator is expressed beyond any doubt. (Wms. on Exrs., 1369, 1370.)</p>

The nature of the action and the material facts are stated in the opinion. Mrs: Story had no standing to enforce the alleged promise. This is not a case of mutual promises, where one has performed and calls on the other for performance. (Watkins v. Perkins, 1 Ld. Raym. 224; Birdsall v. Egerton, 25 Wend. 619.) The plaintiff cannot recover as the beneficiary of a promise made to a third person. (Alderson v. Maddison, L. R., 5 Ex.

<p>Appeal from judgment, of the General Term of the Supreme Court, in the third judicial department, entered upon an order made February 2, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action was upon a policy of marine insurance. •</p> <p>The material facts are stated in the opinion.</p> <p>In the absence of proof to the contrary the policy was presumptively binding and effectual from its date. (1 Phillips on Ins., § 127.) The fair and reasonable construction of a policy like the one in suit is to extend it so as to cover the time during which preparations were being made for the voyage. (Taylor v. Small, 3 Mass. 347; Forbes v. Wilson, Park. on Ins. [7th ed.] 344; 2 Pars. on Ins. 48; Phillips on Ins., §§ 932-935; Marshall on Ins. [5th ed.] 206; Arnold on Ins. [5th ed.] 401; Seaman v. Loring, 1 Mason, 127, 140 ; Kemble v. Bourne, 1 Cai. 75; Fernandez v. Gt. W. Ins. Co., 48 N. Y. 571; Smith v. Steinback, 2 Cai. Cas. 158; Chitty v. Selwyn, 2 Atk. 359 ; Haughton v. Empire Marine Ins. Co., 1 Exq. Cas. 206 ; Patrick v. Ludlow, 3 Johns Cas. 14; 1 Arnold on Ins. 26.) Immediately after the policy attached the insurance was a continuous one. (Fernandez v. Gt. W. Ins. Co., 48 N. Y. 571, 575.) Even assuming that the phrase “ at Bermuda ” protected the tug while moving from one port to another in Bermuda with reference to her voyage before she cleared for New York, it certainly did not after she had once cleared for New York, nor in undertaking independent ventures, towing vessels to sea, or to Hamilton from St. Georges. (Nelson v. Ins. Co., 71 N. Y. 454; Solby v. Whitmore, 5 B. & A. 45.) Cases where under an insurance on a vessel, at and from an island at which there are different ports, it is held she may proceed from port to port without violating the terms of the policy, were all of them cases in which such going from port to port was for the purpose of receiving her cargo, and the decisions ai:e placed on the ground that it was the implied understanding of the parties that the cargo should he collected from different parts of the island. ( Ware v. Miller, 4 B. & C. 538 ; Camden v. Crowley, 1 Wm. Black, 417; Cruikshank v. Jansen, 2 Taunt. 301.) It was a deviation for the vessel to have remained at Mangrove bay all the rest of the afternoon of July 4, and all that night, after her return there. The delay avoided the policy. (Fernandez v. Gt. W. Ins. Co., 583 ; Kettell v. Wiggin, 13 Mass. 71.) This vessel, having encountered no extraordinary perils of the sea, and having sunk in fine weather, the conclusive presumption is that she was unseaworthy at the time she started on her voyage, and at the time she left Mangrove bay on July 5, 1879, and the complaint should have been dismissed on this-ground. ( Walsh v. Ins. Co., 32 N. Y. 437; Talcott v. Ins. Co., 2 Johns. 123 ; Prescott v. Ins. Co., 1 Whart. 401; Warren v. Ins. Co., 2 Johns. Cas. 231; Copeland v. N. E. Ins. Co., 2 Metc. 437, 438; Paddock v. Ins. Co., 11 Pick. 227, 237; 2 Arnold on Ins. [Perkins’ ed.] 371 ; Phillips on Ins., § 697; Pickup v. Thames Ins. Co., L. R., 3 Q. B. Div. 594; Watson v. Clark, 1 Dow., par. 344; Paddock v. Franklin v. Ins. Co., 11 Pick. 237 ; Wright v. Orient Mut. Ins. Co., 6 Bosw. 269 ; Patrick v. Hallet, 1 Johns. 241; 3 Johns Cas. 76; Barnewell v. Church, 1 Cai. 217, 230.) It was the duty of those in charge of the tug, not only to ascertain that she wa,s seaworthy at the commencement of the voyage, but to see that she remained so during the voyage. (Paddock v. Franklin Ins. Co., 11 Pick. 227; 1 Pars. on Mar. Ins. 380, 381; Phillips on Ins., §§ 730, 731, 732.)</p> <p>The question of seaworthiness is one of fact. (Knill v. Hooper, 26 L. J., Ex. Ch. 377 ; Sherwood v. Ruggles, 2 Sandf. 55.) If the facts proved in the case can be held to raise a question of law on this point, they invoke no presumption which can overturn the verdict of the jury.- (Walsh v. Washington Ins. Co., 32 N. Y. 427; Suethen v. Memphis Ins. Co., 3 La. Ann. 474; Anderson v. Morice, L. R., 10 C. P. 58.) If the tug was seaworthy at the time of sailing from the port of Hamilton, and subsequently became unsea worthy, as the result of her striking after leaving Mangrove bay, the continuance of the voyage the next morning from Mangrove bay, devolved no liability upon the owner, unless it is shown that the master had knowledge or reason to believe that the vessel had received damage which rendered her unseaworthy. (Starbuck v. N. E. Marine Ins. Co., 19 Pick. 198; 1 Arnold on Ins. 662; 2 id. 767 ; 1 Phillips on Ins. [5th ed.] 403.) The beginning of a voyage depends upon the intention of the parties in charge. This intention is to be gathered from all the facts and circumstances presented, and from the acts of the parties. It is, therefore, a question of fact for the jury, and was in this case properly submitted for their decision. (Dennis v. Ludlow, 2 Cai. 111.) Taking out clearance papers from the custom-house at St. Georges was for convenience, the tug’s papers being on file there, and did not necessarily involve the immediate cessation of her business, nor mark the beginning of her voyage, nor had it any relation to the policy of insurance. (Barnewell v. Church, 1 Cai. 217 ; Dennis v. Ludlow, 2 id. 111; Risdale v. Newnham, 3 M. & S. 455.) Where a pilot is taken on board for the purpose of navigating a vessel within his pilot grounds, it is entirely within his province to determine what is to be done with her at the time he takes charge, whether she should proceed or not, and whether she should take one course or another; and, in case of loss or damage resulting therefrom, the underwriters are not relieved except in cases of gross negligence or fraud. (The Sochlibo, Eng. L. & Eq. 651; Pollok v. McAlpine, 7 Moore’s P. C. 427 ; The Agricola, 2 Wm. Rob. 10 ; The Guy Mannering, 46 L. T. [N. S.] 905.) The proximate cause of the loss was a peril insured against. Assuming that the remote cause was the negligence of the master, pilot or crew, this would not relieve the insurers unless it was gross or fraudulent. (Shore v. Bentall, 7 B. & C. 798; Waters v. Merch. L. Ins. Co., 11 Peters, 213; Mathews v. Howard Ins. Co., 11 N. Y. 9.) Where the loss happens from one of the perils mentioned in the policy, the courts do not look further to ascertain what occasioned the happening of that cause or loss. (Walker v. Maitland, 5 B. & A. 171; St. Louis Ins. Co. v. Glasgow, 8 Mo. 713 ; Copeland v. N. E. M. Ins. Co., 2 Metc. 432 ; Fireman's Ins. Co. v. Powell, 2 B. M. [Ky.] 311; Sturm v. At. M. Ins. Co., 63 N. Y. 77; Williams v. Suffolk Ins. Co., 13 Pet. 415 ; Anderson v. Pacific Ins. Co., L. R., 7 C. P. 65 ; Champlin v. R. P Ass. Co., 6 Lans. 71; Dixon v. Sadler, 5 M. & W. 405 ; Redman v. Wilson, 14 id. 476; Keeler v. Fireman's Ins. Co., 3 Hill, 250; Am. Ins. Co. v. Pryan, 26 Wend. 563.) It is always competent for a person charged with fraud to deny intent. The weight to be given such evidence is a question for the jury. (Starin v. Kelly, 88 N. Y. 418.) •</p>

This action was commenced in 1881 to recover the sum of $475.22, with interest from July 8, 1867, which the complaint alleged, and the proof showed was on that day withdrawn by Benjamin Bailey, defendant’s testator, from the New York Savings Bank, where it was on deposit in the name of said testator as trustee for plaintiff.

This action was brought to obtain a construction and a determination as to the validity of certain clauses in the will of Gardiner H. Wolcott, deceased. The portions of the will in question and the material facts are set forth in the opinion. The court must determine from the will itself what was the testator’s intention, and then carry that intention into effect so far as it is in accordance with the law; but so far as it is not in accordance with law, declare it void.

Appeal by the defendant, John M. Meyers, from a judgment of the General Term of the Supreme Court in the First Department, affirming a conviction of defendant for selling liquor without a license. The defendant, John M. Meyers, was indicted on January 10, 1884, by the grand jury of the city and county of New York, for a violation of the Excise Law, viz., selling liquor without a license.

Ronald, deceased, to compel an accounting by James Ronald, executor of her last will. The said Jane E. Ronald died in the year 1872, leaving a last will and testament of the material portions of which the following is a copy : “ I give and bequeath to my beloved husband, James Ronald, the sum of $5,000, and also the use and benefit of all my property of every kind and description, personal and real, until my daughter Margaret S. Ronald arrives at the age of twenty-one years.

decree of the surrogate of the county of Queens, admitting to probate an alleged codicil to the will of Margaretta Woolley, deceased. The material facts are stated in the opinion.

(Reported below, 29 Him, 42.) This action was originally brought - by Adna Bowen, the present plaintiff’s testator, to recover damages for alleged fraud in' the sale by defendant to plaintiff’s testator of a bond and mortgage. The complaint alleged in substance that said Bowen w-as induced to purchase by means of false and fraudulent representations on the part of defendant as to the value and condition of the mortgaged premises.

<p>The submission of a cause of action to arbitrators is in legal effect a discontinuance of an action pending thereon, although the arbitrators have not consented to act; and their subsequent failure or refusal to take upon themselves the duties of the arbitration does not revive the action.</p> <p>This result follows, although the submission is not acknowledged as prescribed by the Code of Civil Procedure. (§ 3366.)</p> <p>After such a submission the defendant is entitled," on motion, to an order of discontinuance.</p> <p>Elliott v. Quimby (13 N. H. 188), Chapman v. Seccomb (36 Me. 103), disapproved.</p> <p>At the time such a submission was executed the cause was on the trial calendar-; thereafter, on application of plaintiff’s counsel, the Circuit judge ordered the cause set down for trial for a day named. Eeld, that by omitting to appeal from such order defendant did not waive the submission ; that, as it did not appear that he assented thereto, or participated in the proceeding, it could.not operate to Ms prejudice.</p>

<p>The provision of the Penal Code (§ 707), declaring that a sentence of imprisonment in a State prison for a term less than for life suspends, during the term, the civil rights of the person sentenced, does not apply to a sentence of imprisonment in a county penitentiary.</p> <p>It seems that where, at the time a person is sentenced to imprisonment in a State prison an appeal from a judgment in his favor is pending in this court, the appellant is not entitled to an order suspending the rights of respondent and staying proceedings on such appeal during the term of the sentence. If the appellant proceeds with the appeal the respondent has the right to defend it, and a trustee may he appointed to take charge of his estate (2 ft. S. 15, § 1 et seq.), who can proceed and enforce the j udgment.</p> <p>As to whether the person sentenced can himself, in such case, move the appeal for argument,'quosre.</p>

This action was brought to foreclose two mortgages executed by defendant Vrooman, held by D. L. Carroll, plaintiff’s testator at the time of his heath. The answer of defendant Deimel and wife, who alone appeared and defended, alleged a payment by Deimel to Carroll of $1,000 on April 1, 1876. The facts pertinent to the questions discussed appear in the opinion. As there was no equitable issue to be tried, defendants were entitled to a jury trial as a matter of strict right.

Gouraud to contest the probate of the will of Trust Felix Gouraud, deceased. (Reported below, 2S Hun, 560.) The facts are sufficiently stated in the opinion. The filing of the allegations of contest within the year was a sufficient compliance with the statute.

(Reported below, 29 Hun, 622.) The material facts are stated in the opinion. As the law now stands there is no provision fixing the rate of compensation of testamentary trustees. (Redf. on Surr. [2d ed.] 701, note 9; Matter of Roosevelt, 5 Redf. 601; Manning v. Manning, 1 Johns. Ch. 527.) The mere fact of the direction in a will to the executors to carry out or execute certain trusts, did not create the executors testamentary trustees as contemplated by the statute.

This action was brought to recover damages for the death of George Vick, plaintiff’s intestate, alleged to have been caused by defendant’s negligence. In December, 1878, the deceased, while riding in defendant’s shop car, so called, from Rochester to Buffalo, received injuries through a collision caused by negligence of defendant’s employes, from the effects of which he died. The circumstances connected with the accident, so far as material, are stated in the opinion.

(Reported below, 29 Hun, 35.) This action was brought to recover damages for alleged negligence, causing the death of John E. Waldele, plaintiff’s intestate. The facts, so far as material, are stated in the opinion. The court erred in receiving the evidence of Philip Waldele as to the declarations of John Waldele, made after the injury and while John Waldele was on the sidewalk on Kent street, as they were too remote and narrative.

The nature of the action and the material facts are stated in the opinion. This suit is properly brought, and the court has jurisdiction to examine and construe the leases in aid of the arbitration. (1 Pomeroy Eq. Jur., §§ 378-384, 424, 424; Cooke v. Cooke, L. R., 7 Eq. 77 ; Piercy v. Young, L. R., 14 Ch. Div. 200; Caledonian R'y Co. v. Greenock & W. B. Co., 10 Scotch Sess.

<p>The liability to creditors imposed upon the stockholders of a corporation organized under the General Manufacturing Act (§ 10, chap. 40, Laws of 1848), is not taken a way by the making and recording of a certificate, stating, as required by said act (§ 11), the amount of its capital stock, and that the whole thereof has been paid in. To end the liability both the stock must be paid in and the certificate made and recorded; the certificate is not conclusive as to the payment.</p> <p>As to whether the certificate is even presumptive evidence of payment, qumre.</p> <p>The stockholders’ liability is not confined to the original capital stock ; it attaches on an increase of the capital, as authorized by the act (§§ 20, 21, 22), to such increased capital.</p> <p>Where, however, the original capital is paid in, in full, and a certificate made and recorded, the liability of the stockholders thus far is ended, and cannot be revived by an increase of the capital.</p> <p>The holders of the original stock, therefore, are not liable thereon because of a failure to pay in the increased capital; the liability rests solely upon the holders of the increased stock, and is limited by the par value of such stock.</p> <p>Where an attempt has been made to increase the capital of such a corporation, stockholders, who have voted for the increase, accepted their share of the additional stock, and received dividends thereon, as against creditors, are estopped from questioning the validity of the increase.</p> <p>The provision of said act requiring the recording of the certificate within thirty days (§ 11) is directory merely, and where a certificate is properly made and given to the county clerk for record, the duty imposed upon the stockholders is performed, and they are not liable because of an omisr sion to record, which is wholly the fault of that officer.</p> <p>The R. I. Co. was organized in 1868 with a capital of $200,000, which was paid in, but no certificate thereof was made and recorded. In 1869 the trustees passed a resolution increasing the stock to $300,000, and at a meeting of the stockholders, by a vote of two-thirds, the increase was ratified; no notice of such meeting was published, nor was a certificate of its proceedings made and filed, as required by said act (§§ 21, 22). The increased stock was issued, but not fully paid in; holders thereof voted at stockholders’ meetings, shared in dividends, and in all respects were treated and acted as holders of legal stock. In 1873 a certificate was made by the proper officers and delivered to the county clerk for record, which stated the capital to be $300,000, and that it was actually paid in. In an action brought by a creditor to enforce the liability imposed upon stockholders because of failure to pay in the capital stock, held, that the certificate was sufficient to exonerate the holders of the original stock, but was not conclusive, as against the creditors, that the increased stock had been paid in ; and that the holders thereof were estopped from questioning the validity of the increase; also that, as the indebtedness provable under said act (§ 24) was more than the amount of the increase, such holders were liable to the extent of the par value of the increased stock.</p> <p>The company being indebted to J., a subscriber for original stock, for work in constructing its furnaces, the amount of his account was applied as a payment upon his stock. Held, that this was a payment in money within the meaning of the act (§ 14).</p> <p>Among the claims presented was one in favor of a bank which had discounted a note, dated October 2,1876, payable in four months. Upon maturity it was renewed for four months, and again renewed for five months. Suit was brought against the company on November 3,1877. Held, that this was a debt to be paid within one year from the time it was contracted, and that suit was brought within one year after it became due, within the meaning of the provision of said act (§ 22), exempting stockholders' from liability for claims not contracted to be paid, or not sued within the year; and that the claim was properly allowed.</p> <p>Defendants M. and T. were trustees of said company for the years of 875 and 1876. No annual reports for those years were filed as required by said act. (§12.) A creditor, after judgment against the company in an action brought more than a year after his claim fell due, sued said trustees because of the omission to comply with such requirement, and recovered j udgment for the amount of his claim, which they paid. They claimed to be allowed the amount so paid, in reduction of their liability. Held, that said claim was properly rejected.</p> <p>Said defendants were also sued by another creditor, because of such omission. They settled the action before j udgment, and took a transfer of the claim, which consisted of notes of the company, dated October 1, 1875, payable on demand. No action was brought against the company thereon until October 27, 1877. This claim they also asked to have allowed. Held, that it was properly rejected.</p> <p>McV., a stockholder, died before, any of the debts allowed herein were contracted; the stock went into the hands of his executors, who advertised for claims against the estate. This publication was commenced within a month after they qualified. After the expiration of the time fixed by the advertisement they distributed all but a small portion, without reserving sufficient to meet any liability upon the'stock. The estate was amply sufficient to meet all liabilities. Held, that the executors were personally liable for any deficiency after application of the residue in their hands.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made July 2, 1883, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to set aside the assignment of a bond and mortgage executed by Homer Holcomb, plaintiff’s intestate, on the ground that, at the time of the execution thereof, the assignee was of unsound mind, also on the ground of undue influence.</p> <p>The facts so far as material are stated in the opinion.</p> <p>Witnesses, not experts, may testify whether or not the acts which they saw and state impressed them as rational or irrational; but must not give an opinion as to mental soundness or unsoundness, capacity or incapacity. (O'Brien v. People, 36 N. Y. 282; Hewlett v. Wood, 55 id. 634, 635 ; Real v. People, 42 id. 282; In re Ross, 87 id. 514, 520; Clapp v. Fullerton, 34 id. 190 ; Rider v. Miller, 86 id. 511; Eckler v. Eckler, 14 Week. Dig. 218, 219 ; 34 N. Y. 190 ; 42 id. 270; 55 id. 634 ; Dewit v. Bailey, 17 id. 340; Church v. Howard, 79 id. 421 ; Dilleber v. Home Ins. Co., 69 id. 260 ; Hobart v. Hobart, 62 id. 83; Bergman v. Jones, 18 Week. Dig. 161; Williams v. Fitch, 18 N. Y. 546 ; Foote v. Beecher, 78 id. 155; Capron v. Thompson, 86 id. 418.) Error was committed in the admission of evidence of personal transactions, between witnesses and deceased, in violation of section 829 of the Code. (Hier v. Grant, 47 N. Y. 281; Maverick v. Maverick, 90 id. 656 ; Schoonmaker v. Wolford, 20 id. 166 ; Snyder v. Shannon, 11 Week. Dig. 158.) A general objection to evidence of personal transactions between witness and a deceased person is good without specifying any grounds of objection. (Tooley v Bacon, 70 N. Y. 37; Brague v. Lord, 67 id. 495.) A general objection is good if it appears that there are some grounds which, if they had been specified, could not be obviated; or if the evidence, in its essential nature, is incompetent. (Bergman v. Jones, Ct. of App., Nov., 1883; 18 Week. Dig. 161.) The evidence did not justify the finding that Homer Holcomb was mentally incompetent to transfer the bond and mortgage. (1 Jarm. on Wills, 57, No. 1 [5th Am. ed., by Bigelow, 1881] ; Comstock v. Hadlyme, 8 Conn. 264; Rambler v. Tryon, 7 S. & R. 95 ; Kinne v. Kinne, 9 Conn. 105; Converse v. Converse, 21 Vt. 168 ; Kirkwood v. Gordon, 7 Rich. [S. C.] 474; Hewlett v. Wood, 62 N. Y. 79; Delafield v. Parish, 25 id. 97; Brown’s Med. Jur. 95, 208; 1 Beck’s Med. Jur. 846 ; Forman Will, 54 Barb. 289 ; Redfield on Surr. 289 ; Dean’s Med. Jur. 572; Skinner v. Johnson, 60 Barb. 75; Abbott’s Encyc., title “ Insanity.”) Undue influence must be proved, and cannot be presumed from opportunity or motive. (Post v. Mason, 91 N. Y. 539.) Because of the illegal introduction of evidence a new trial should be granted. (Hobart v. Hobart, 62 N. Y. 84.)</p> <p>Section 829 of the Code does not exclude evidence of a witness interested, as to conversations overheard by the witness between a third person and the deceased. (Simmons v. Sisson, 26 N. Y. 264; Egbert v. White, 59 id. 336.) The two questions, “ What was your father’s habit with regard to going to your house?” etc., and “ How often he was at your house; how he came there from spring of 1869?” etc., were admissible under section 829 of the Code. (Hobart v. Hobart, 62 N. Y. 82; Franklyn v. Pinckney, 18 Abb. 186; 2 Rob. 429; Matter of Page, 62 Barb. 478.) A non-expert witness may testify to- the impressions produced by what he witnessed, and may characterize as rational or irrational the acts and declarations to which he testifies. (Clapp v. Fullerton, 34 N. Y. 190-195; O’Brien v. People, 36 id. 282; Howlett v. Wood, 55 id. 634.) A non-expert witness may go to the full extent in his opinion, but must be limited in his opinions and impressions to what, he saw and heard. (De Witt v. Barley, 17 N. Y. 340, 348, 350-353; Hobart v. Hobart, 62 id. 82.) It was proper to show the appearance, physically and otherwise, of the intestate. (Graham v. Price, 25 Hun, 2.) Words, if uttered to and in reply to a witness’s question to deceased, amount to a conversation or communication between them, which should be excluded under section 829 of the Code. (Smith v. Ulman, 26 Hun, 386; Krushaar v. Myer, 72 N. Y. 602.) A court of equity interposes to set aside instruments between parties standing in the relation of parent and child, guardian and ward, physician and patient, attorney and client, principal and agent, and various relations in which one party is so situated as to exercise a controlling influence over the will • and conduct of another. (Seers v. Shaffer, 60 N. Y. 268; Brock v. Barnes, 40 Barb. 528 ; Comstock v. Comstock, 57 id. 453; Evans v. Ellis, 5 Denio, 64; Story’s Eq. Jur., § 315; Brock v. Barnes, 40 Barb. 528.) In an equity case tried by the court the inquiry is, is there enough upon the whole case to show the decision was substantially right. (Forest v. Forest, 25 N. Y. 501, 510 ; Post v. Mason, 91 id. 539; Code, § 1003 ; Clapp v. Fullerton, 34 N. Y. 190, 195 ; Sutherland v. Rose, 47 id. 144, 150 ; 78 id. 155 ; 66 id. 144.) A new trial will not be granted on the ground that improper testimony was received or rejected on the trial, if the court is satisfied with the result. (Clark v. Brooks, 2 Abb. Pr. [N. S.] 385; 1 Barb. Ch. Pr. 459-61; 1 Van Santvoord’s Eq. Pr. 585-6-8; Lansing v. Russell, 2 Com. 563.) This rule is not affected by the late Code. (Madison University v. White, 25 Hun, 493 ; Throop’s Code, § 1003 and note.)</p>

The material facts are stated in the opinion. The statute requires that a will to be properly executed must be signed by the testator at the end; such signature must be made or acknowledged in the presence of two witnesses; the testator must declare in the presence of - the witnesses that the instrument is his will, and it must have an attestation clause, which must be signed by the witnesses at the request of the testator.

<p>Appeal by John Consal us, executor of the will of Amelia Hall, deceased, from a judgment of the General Term of the Supreme Court,- in the second judicial department, entered upon an order made January 17, 1882, .which affirmed a decree of the surrogate of the county of Rensselaer upon settlement of the accounts of said executor. -</p> <p>The material facts are stated in the opinion.</p> <p>In appeals from the decision of a surrogate,, the whole case will be examined by the appellate court as well upon the facts as upon the law. (Schenck v. Raynor, 22 N. Y. 420 ; Robinson v. Raynor, 28 id. 494.) The executor in these proceedings was at liberty to interpose usury, or any other defense which he had to the note or claim in question. (Martin v. Gage, 9 N. Y. 398 ; 3 R. S. 171, § 14 [5th ed.] ; 2 Edm. 86, § 13; Everts v. Everts, 62 Barb. 577; Streal v. Fortune, 2 Bradf. 116.) The interest upon the note in question received, or taken and agreed to be received or taken, being greater than that permitted by law, the same is void. (1 R. S. 772, § 5 ; 1 Edm. ed. 726, § 5.) Where the defense of usury is interposed a pilaintiJf cannot recover upon the original demand, even if valid, where the same is not set forth and claimed to be recovered for in the pleadings. (Hausee v. Phinney, 20 Hun, 153.) Payment and receipt of usurious interest 1?, prima facie evidence of a corrupt agreement. (N. Y. F. Ins. Co. v. Ely, 2 Cow. 678, 716 ; Shoop v. Clark, 4 Abb. Ct. of App. 235 ; Ferrall v. Shain, 1 Saund. 292; Hammond v. Hopping, 13 Wend. 505; Catlin v. Gunter, 11 N. Y. 368 ; Storer v. Coe, 2 Bosw. 661; Smith v. Hathorn, 88 N. Y. 211; Fiedler v. Darrin, 50 id. 437.) If any part of the consideration of the note was usurious, it tainted and invalidated the whole security. (Jackson v. Packard, 6 Wend. 415 ; Fulton Bank v. Benedict, 1 Hall, 480.) The decree of the surrogate is erroneous and should be reversed, and if upon questions of law, sent back to the surrogate. (Sheridan v. Houghton, 84 N. Y. 643.)</p> <p>The burden of proof is on the party setting up usury to show affirmatively a corrupt agreement, and if the facts are just as consistent with a payment for forbearance, as upon a loan the defense will not be sustained. (Booth v. Swezy, 8 N. Y. 276 ; Law v. Merrils, 6 Wend. 268; Hammond v. Smith, 17 Vt. 231.)</p>

(Reported below, 30 Hun, éll.) This action was brought to foreclose a mortgage executed in February, 1856, by Jonah Miller to Abraham Impson, to secure the payment of his bond for $1,000. Impson assigned the mortgage to Matilda Durland, April 30, 1856, she assigned it to James Durland, April 1, 1861, who assigned it to the plaintiff, January 13,1880. Hone of the assignments were recorded. The premises were sold and conveyed to the defendant McHeal in May, 1863.

This was a submission under the statute of a claim against the estate of Jirah P. Spencér, defendant’s intestate. The contention was principally as to a counter-claim presented by defendant. Plaintiff had executed to said intestate a mortgage securing the payment of $1,292, as specified in the mortgage. The mortgage contained no covenant or promise on the part of the mortgagor to pay, but recited that a bond accompanied it.

(Reported below, 17 J. & S. 324.) This action was brought to recover a balance alleged to be due plaintiffs, a firm of stock brokers, on account of certain stock transactions carried_on by them for defendant’s testator. The facts so far as material are stated in the opinion. There is no presumption in favor of the account because it was kept some time without objection as defendant’s testator was excused by reason of his illness.

This action was brought by plaintiff as administrator of the estate of Abby Finley, deceased, to compel defendant as sole surviving executor and trustee under the will of Thomas Bent, deceased, to carry out and perform the requirements of the will. The material facts are stated in the opinion. The plaintiff has no interest in the proceeds of the lands which he demands should be sold. (1 Bradf. 40-42; Everitt v. Everitt, 29 N. Y. 39; Underhill v. Tripp, 24 How.

Appeal by defendant, Lndington, from an order of the General Term of the Superior Court of the city of New York, which affirmed an order of Special Term directing Ludington to pay the costs recovered by Watkins against plaintiff. The nature of the action and the facts so far as material are stated in the opinion.

Appeals from orders of the General Term of the Supreme Court, in the first judicial department, the dates of which, and the nature thereof, as well as the material facts, are stated in the opinion. It is not sufficient that the assessment is an apparent lien or incumbrance, but it must be shown to be a valid or subsisting lien or incumbrance, which may be enforced against the property.

The nature of the claim and the material facts relative thereto appear in the opinion. The claim was barred by the statute of limitations. (Code, § 414; 2 R. S. 301, § 52; Lawrence v. Trustees of L. and W. Orphan House, 2 Denio, 577; Code of Pro., § 382, subd. 1, § 388.) If Mrs. Byron was under disability as a married woman, that disability ceased in 1840, and the action should have been brought within ten years thereafter.

This action was brought to restrain the collection of certain judgments. The material facts are stated in the opinion. Hr. Duckworth held the bonds as collateral to the loan, and only such amount as was realized on the sale of the collateral would apply toward the liquidation of the loan.

<p>Where a person, even by silent acquiescence, encourages a testator to make a devise or bequest to him, with a declared expectation that he will apply it for the benefit of others, this has the force and effect of an express promise so to apply it, as if he does not intend so to do, the silent acquiescence is a fraud.</p> <p>Where the gift is to several as joint tenants and the promise to carry out the declared purpose of the testator is made by one of them it is obligatory upon all.</p> <p>"In the case of such a declared intention and promise, if the testator has i named some certain and definite beneficiary, capable of taking the pro- > vision intended, the law fastens upon the devisee or legatee a trust which equity, in case of his refusal to perform, will enforce on the ground of fraud.</p> <p>If, however, the uses enjoined are for the benefit of persons incapable of taking, or of a character in direct violation of the law of the State, if the devisee or legatee repudiates his obligations, this is a fraud upon the testator; if he is willing to perform, his so doing would be both a fraud upon the law and against the heirs and next of kin, and equity will for their protection in either case fasten a trust ex maleficio upon the devisee or legatee.</p> <p>M., by her will, gave the bulk of her estate to three persons, who were her lawyer, her doctor, and her priest, absolutely as tenants in common. It was not intended by her to give to the persons named any beneficial interest, but her design was to devote the property to certain charitable purposes; this she was advised could not be done by express provision in her will, but only by such an absolute gift to individuals, to whose honor she could confide the execution of her purpose, She signed a letter of instructions, cotemporaneous with the will, addressed to the legatees and devisees, stating the reason for the gift and dictating the purpose, which was in substance that during their lives, and after their deaths by some permanent arrangement to be made by them, the income of specified portions of the fund should be given to indeterminate persons of their selection, and any surplus of income to such charities as they might select. The will was executed in reliance upon a promise of the legatees to apply the fund faithfully and honorably to the charitable uses so specified. In an action to establish a trust which, failing as to the beneficiaries, should result to the heirs at law and next of kin, held, that the gift could not be sustained as an absolute one to the persons named, as this would be a fraud upon the testatrix ; that the secret trust attempted to be created could not be enforced, nor would equity permit it to be carried out, as it was in violation of the statute against perpetuities, but would impose a trust upon the fund for the benefit of the heirs^-nd next of kin ;.And that therefore the action was properly brought.</p>

This action was brought originally by Patrick Crowe, the present plaintiff’s intestate, for the rescission of an alleged contract, for the exchange of real estate on the grpund of fraud, and for an accounting for the rents and profits of the premises conveyed by plaintiff while they were in defendant’s possession.

Judgment was perfected in this action in favor of plaintiff and against defendants February 10,1877.

This was an action of ejectment to recover possession of a piece of land in the city of Hew York, lying between the original high-water mark of the Harlem river and the bulkhead line in said river. The material facts are stated in the opinion. The plaintiff derived title in fee to that part of the premises comprised by the shore, i. e., the strip between high and low-water mark, under the Dongan Charter of April 27, 1686.

Conner, late sheriff of the county of Hew York, for poundage upon an execution. (Reported below, 29 Hun, 286.) The material facts are stated in the opinion. The sheriff was entitled to poundage on the execution issued against the person of the judgment debtor, although no part of the judgment was collected and he died while in custody. (29 Eliz., chap. 4; 3 Geo.

This action was brought to recover a sum to which plaintiff claimed herself entitled as the widow of Robert Story, deceased, who was at the time of'his death a member of defendant’s association. The material facts appear in the opinion. Plaintiff was entitled to recover even if it had been proven that she was not the lawful wife of Robert Story.

(Reported below, 30 Hun, 161.) The nature of the action and the material facts are set forth in the opinion. The certificate issued by the defendant was and is a lien, and constitutes a cloud on plaintiff’s title.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made April 14, 1883, which reversed a judgment in favor of the plaintiff, entered upon a decision of the court on trial without a jury, and which ordered judgment for defendant. (Reported below, 29 Hun, 567.)</p> <p>This was an action upon a bail bond, executed by the defendant to secure the jail liberties to one Alpheus C. Beckwith, a person imprisoned under a precept issued in pursuance of an order of the court for alleged contempt,</p> <p>i Prior to May, 1878, Pierce and Haggerty made an assignment of their property to said Beckwith for the benefit of their creditors. George T. Hawley and other judgment creditors of the said Pierce and Haggerty in May, 1878, commenced an action against them and Beckwith to have the assignment declared fraudulent and void as against creditors ; to compel Beckwith, as assignee, to account for the property and moneys in his hands and to have the same applied in payment of plaintiffs’ judgment. Judgment was entered in said action declaring the assignment void as to creditors, requiring Beck-with to account for the value of the property which came to his hands, which was found to be §3,000, and directing that a receiver be appointed of the effects of the said Pierce and Haggerty which should be in their hands or the hands of said Beckwith, and that from the proceeds of such property and effects, the receiver pay the costs and disbursements of the action, which were taxed and adjusted at $107, pay the plaintiffs their judgment of $178.35 with interest thereon and bring the balance of the proceeds into court subject to its further order and direction. Thereafter, on the 29th day of October, 1878, by an order made at Special Term, a receiver was appointed as provided for in the judgment, and a referee appointed to take and state the account of the said Beckwith, and to determine what costs, expenses, charges and disbursements, if any, were properly allowable to him. The referee made a report, dated January 20, 1878. By order made January 31, 1879, on motion of the plaintiff’s attorney, the referee’s report was confirmed, and Beckwith was ordered to pay over to the receiver $2,610, being said sum of $3,000 less two items of counsel fees and disbursements allowed to him amounting to $390. On March 14,1879, an order was entered at Special Term purporting to be upon the motion of the receiver, and without reciting any notice to Beckwith, but stating that a demand had been made of him to pay the money mentioned in the last-named order, and that he had neglected and refused to do the same. It directed that a precept issue to commit him to the county jail until he paid the sum of $2,610 as required by such order. The precept was issued to the sheriff of Oneida county. Beckwith was arrested by the sheriff and he with the defendant herein gave the bail bond sued upon.</p> <p>The judgment entered in the creditor’s action October 17, 1878, was a final judgment. (Produce B'k v. Martin, 69 N. Y. 199; 4 Paige, 567; 7 id. 18 ; 9 id. 638 ; Old Code, § 245 ; 1 Van Santf. Eq. Pr. 578 ; New Code, §§ 1022, 1200.) The action was well brought by the new. sheriff. By the assignment to Beckwith, the attachment and bail bond passed to him, and he became responsible. (21 Wend. 230; Croker on Sheriffs, § 815 [old ed.].) The precept under 3 R. S. [5th ed.] 850, § 4, is only “an execution in a civil action.” (3 Paige, 38; 4 id. 282, 397; 10 id. 287; 69 id. 536; 5 Lans. 466 ; Redfield on Surrogates, 744 ; People v. Cowles, 4 Keyes, 38 ; 3 Abb. App. Cas. 507; 34 How. 481.) The fact that defendant did not have Beckwith at the trial to testify that he was not off the limits, and also the fact that plaintiff could not serve a subpoena on him, are strong circumstances in plaintiff’s favor. (92 N. Y. 554, 559, 560 ; Abbott’s Trial Ev. 609.)</p> <p>The judgment decreed an accounting, enjoined the transfer of the property and directed that a receiver be appointed. This made it interlocutory and not final. (Code of Civ. Pro., §§ 1200, 1230, 767; Clark v. Brooks, 2 Abb. [N. S.] 385, 404-5 ; Tompkins v. Hyatt, 19 N. Y. 534; Jenkins v. Wilds, 14 Wend. 539 ; Kane v. Whittick, 8 id. 219, 224.) The precept issued under section 4, chapter 8, part 3, title 13 of the Bevised Statutes, then in force, is an interlocutory order. (Matter of Watson, 69 N. Y. 536-543 ; Strowbridge v. Strowbridge, 21 Hun, 288-290; People, ex rel. v. Riley, 25 id. 587.) This precept is limited to cases where by law an execution cannot issue to enforce collection of the sum ordered to be paid. (Code of Civ. Pro., § 14, subd. 3; 2 R. S. [6th ed.] 838; § 3, subd. 1, title 13, chap. 8 ; O’Gara v. Kearney, 77 N. Y. 423-426 ; Baker v. Allen, 21 Hun, 356-360; Strowbridge v. Strowbridge, 21 id. 288-290; People, ex rel. v. Riley, 25 id. 587; Code of Civ. Pro., § 1240, subd. 1; Old Code, § 285 ; Geary v. Geary, 63 N. Y. 252-255; Gray v. Cook, 24 How. Pr. 432; Lansing v. Lansing, 4 Lans. 377 ; Miller v. Miller, 7 Hun, 208.) The precept being void, the arrest under it, and the bond taken for the liberties of the jail and sued in this action, are also void. (Carpenter v. Willitts, 1 Abb. Ct. of App. Dec. 312, 313; Goodwin v. Griffis, 88 N. Y. 629, 640.) The entire absence of the proceedings, which are prescribed by positive enactments to be taken in proceedings to punish for a contempt, deprive the court of jurisdiction. (Pitts v. Davidson, 27 N. Y. 235; Tinker v. Crooks, 22 Hun, 579 ; Clark v. Bininger, 75 id. 344-350.) If void, proceedings for contempt may be attacked collaterally. (People v. Sturtevant, 9 N. Y. 263, 266-7; Wilcox v. Jackson, 13 Peters, 511.) When a party is “ punished ” for a contempt in not obeying a judgment or an order, he is not entitled to the liberties of the jail on arrest. (Code of Civ. Pro., §§ 3, 4, 157, 1241; 3 R. S., chap. , title 13; Park v. Park, 80 N. Y. 156; 18 Hun, 466 ; Gane v. Gane, 46 Sup. Ct. 218; Baker v. Baker, 23 Hun, 356, 359 ; Howe v. Howe, 5 Weekly Dig. 460; Pritchard v. Pritchard, 4 Abb. N. C. 298; Freeman v. Freeman, 8 id. 174; Allen v. Allen, id. 175, 185; Strawbridge v. Strawbridge, 21 Hun, 288; Matter of Clark, 20 id. 251; 81 N. Y. 638; Brinkley v. Brinkley, 47 id. 40-48 ; People v. Campbell, 40 id. 133, 138 ;. Fero v. Van Evra, 9 How. 148 ; Brier v. Hanson, 16 Abb. Pr. 399; Gray v. Cook, 24 How. 432, note; Morris v. Walsh, 14 Abb. Pr. 387; 4 Wait’s Pr. 175-194; Matter of Clark, 20 Hun, 551, 553; Allen v. Allen, 8 Abb. N. C. 175, 185-6; Baker v. Baker, 23 Hun, 356, 359; People, ex rel. v. Cowles, 3 Abb. Ct. App. Dec. 507, 510-511; S. C., 33 How. Pr. 337; 34 How. 481; Matter of Watson, 3 Lans. 408-413, 44; 5 id. 476, 472-474.) If Beckwith was not entitled to the liberties of the jail, then the bond sued on is one taken in a case not provided for by law, and is void, as being taken in .color of office. (3 R. S. 448, § 46 [6th ed.] ; Winter v. King, 1 N. Y. 365, 367-8; Love v. Palmer, 7 Johns. 159, note; Cook v. Freudenchatt, 80 N. Y. 202-209.) The new judgment having been obtained on application of the sheriff, and being made for his relief and protection, he became a party to it, by the payment of the claim of plaintiffs for a voluntary escape, and such payment had the effect to satisfy and discharge the judgment, as it provided that on such payment the precept should be returned satisfied, which would cancel the judgment of record. These provisions he could not evade by any subsequent agreement with the plaintiffs, unassented to by the defendant and his bail. (Flower v. Lance, 59 N. Y. 603-610; Fleetwood v. City of N. Y., 2 Sandf. 475, 482; Forrest v. Mayor, etc., 13 Abb. Pr. 330, 345.) The voluntary escape had the effect of discharging the judgment, precept and arrest. (Crocker on Sheriffs, § 595; Smith on Sheriffs, 550; Thompson v. Lockwood, 2 Johns. Cas. 3 13, 15-16; Littlefield v. Brown, 1 Wend. 398, 401-405; Clark v. Cleveland, 6 Hill, 344, 349; Ransom v. Turner, 4 Johns. 469, 473; McElroy v. Mancius, 13 id. 121, 122; Cook v. Freudenchat, 80 N. Y. 202, 209 ; Kœnig v. Stickle, 58 id. 475 ; Ex parte Lawrence, 4 Cow. 417; Jackson v. Brown, 7 id. 13; Kassan v. Pease, 44 Barb. 347, 353; Lathrop v. Briggs, 8 Cow. 171, 173-4; Powers v. Wilson, 7 id. 274; Chapman v. Halt, 11 Wend. 41; 3 Wait’s Actions and Defenses, 229; id., § 3, p. 227; Code of Civil Procedure, §§ 150, 155, 158, 159, 160, 161,163, 171.) The payment -of the money absolutely and without reservation to the plaintiffs in the judgment and precept, by the sheriff, was at law a payment and satisfaction of both. (Sherman v. Boyce, 15 Johns. 443, 446; Reed v. Prime, 7 id. 426-429; Carpenter v. Stilwell, 11 N. Y. 61, 69-71.) The sheriff upon demand having voluntarily paid a claim for an alleged official misconduct growing out of the execution of the precept cannot be subrogated by assignment nor otherwise to the rights of the creditor and be entitled to enforce either the ■ judgment or precept for his own indemnity. (Carpenter v. Stilwell, 11 N. Y. 61; Bigelow v. Provost, 5 Hill, 566; Sherman v. Boyce, 15 Johns. 443; Jackson v. Anderson, 4 Wend. 474; Swan v. Saddlemier, 8 id. 676; Love v. Palmer, 7 Johns. 159; Richardson v. Crandall, 48 N. Y. 347; Code of Civil Procedure, § 160; Littlefield v. Brown, 7 Wend. 453-457; Goodwin v. Griffis, 88 N. Y. 629-640.)</p>

<p>It is not essential to the due publication of a will that the testator shall declare in express terms in the presence of the subscribing witnesses that the instrument is his last will; it is sufficient if he in some way makes known to them by acts or conduct, if not by words, that it is intended and understood by him to be his will.</p> <p>Where therefore a testator subscribed the will in the presence of the witnesses, and by his conduct made known to them its nature, and requested their attestation, held that there was a substantial compliance with the statutes, sufficient to entitle the will to probate,</p> <p>Mitchell v. Mitchell (16 Hun, 97, affirmed 77 N. Y. 596), distinguished.</p> <p>Probate was contested by the heirs-at-law. It appeared that through partial paralysis of the vocal organs, the testator at the time he executed his will was unable to utter words, but he made sounds intelligible to those familiar with him, and signs, which to some extent any one could interpret. His wife went with him to the house of the scrivener who drew the will. She was executrix and legatee. Held, that she was incompetent under the Code of Civil Procedure (£ 829), to testify to any thing said by her to the testator, or to what he communicated to her or others, in reply.</p>

This action was brought to recover back money alleged to have been given defendant by Ira Riggs, plaintiff’s intestate, he being at the time of unsound mind. The case, upon a former appeal, is reported in 84 if. Y. 330. It appeared that defendant, on receipt of the moneys, gave back an agreement to pay Riggs the interest on the sums received during his life, and after his death to his sister and widow during their lives.

(Reported below, 29 Hun, 534.) The nature of the action and the material facts alleged in the complaint are set forth in the opinion. The terms of the mortgage are sufficiently strong to render the mortgagor liable for the deficiency. (1 R. S. 689.) Any words showing the intent of the parties to a contract to do or not to do a certain thing raises an express covenant.

Smith, deceased. The proponent, William Lawton, was the chief beneficiary under the will of September 13, 1880, propounded for probate. He was a lawyer, he drew the will, and had been the legal adviser of the decedent, for whom he had drawn several wills prior to the one in question. The will was drawn and executed on the day of its date, during the last sickness of the testatrix, who died five days thereafter.

These are cross appeals from different portions of a judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 17, 1883, which modified, and affirmed as modified, a decree of the chief judge of the Court of Common Pleas in and for the city and county of New York, acting as surrogate of said county, because of incapacity of the surrogate to act in the case, which decree was made upon the accounting of Samuel M. Meeker…

<p>Witness.—Defendant Swoen in his own behalf.—Disparaging Questions.—Assault.—Nature of Weapon.— Question foe Juey.—Evidence.</p> <p>When upon cross-examination, for the purpose of discrediting him, disparaging questions are put to a defendant who has been sworn on his own behalf, the prosecution is bound by his denials, and said defendant cannot be held prejudiced by the allowance of questions so answered by him in the negative.</p> <p>Where such a defendant is asked on cross-examination if he did not “ gouge out” a certain person’s eye, and he denies that he did so, voluntarily adding that he struck him, and explaining the circumstances of said act in such way as to show that he acted entirely on the defensive, he will not be deemed prejudiced by the allowance of the question.</p> <p>Upon the trial of an indictment for assault with a dangerous weapon, where the defendant had been sworn on his own behalf, the court may, in its discretion, permit him to be asked on cross-examination for the purpose of discrediting him as a witness, whether or not he had committed a prior assault, e. g., upon a fellow-member of the legislature. Proof of such an act unjustified or unexplained, tends to impeach the moral character and affect the credit of the witness.</p> <p>Such a line of questions must be confined to specific acts which tend to discredit the witness or impair his moral character, and not extended to mere accusations made against him, e. g., an indictment.</p> <p>Upon the trial of such an indictment, whether the pistol with which the assault was committed by striking complainant therewith, was an instrument or thing likely to produce bodily harm, is a question for the jury, though the weapon was not produced or otherwise do-' scribed than by its common name, the character of the wounds inflicted being severe and fully described.</p>

The nature of the action and the material facts are stated in the opinion. A railroad company owes to its employes the duty of providing and maintaining safe and suitable structures, machinery and appliances, so as to protect them against danger.

■ The provisions of the Revised Statutes for the separate assessment and taxation of real and personal estate are applicable to corporations as well as individuals. (1 R. S. [3d ed.], chap. 13, title 1; id., chap. 13, title 2, art. 1, § 6; id., chap. 13, title 4; id. 442, § 3 ; 443, §§ 6, 8; 444, § 9; 469, § 2; People v. Bd. Assrs., 39 N. Y. 84; Laws 1853, chap. 654, § 10.) The real estate of the corporation was to he assessed and taxed as other real estate.

This action was brought to recover damages for alleged negligence on the part of the defendant causing the death of Daniel H. Seybolt, plaintiff’s intestate. The deceased was, at the time of the accident causing his death, a mail agent or postal cleric in the employ of the United States Government, and was in the discharge of his duties riding in a postal car on defendant’s road. The car was thrown from the track and he was killed.

Appeal frqin judgment of the General Terra of the Court of Common ‘Pleas in and for the city and county of Mew York, entered upon an order made March 15, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. This action was upon a promissory note for $5,000 given by Thomas McKenzie,defendant’s intestate to plaintiff. The defense was want of consideration.

This action was brought by plaintiff, as assignee of the firm of Lockwood, to recover the amount of a draft alleged to be the proceeds of a claim belonging to the firm, which was transferred to plaintiff as such assignee, and which was received and collected by defendants.

The nature of the action and the material facts are stated in the opinion. Equitable conversion may take place by implication as well as by express words. The positive direction to convert, which is essential, may be implied.

This was an action of ejectment. The material facts are stated in the opinion. A mortgagee or his assignee in possession of the mortgaged premises is protected in his possession by the mortgage.

Appeal by defendant Louis D’Argencour from a judgment of March 7, 1884, of the General Term of the Supreme Court in the First Department affirming a judgment of the Court of General Sessions of the city and county of New York, April 11, 1883, Hon. Henry A. Gildersleeve presiding, convicting defendant of forgery in the second degree. The offense was committed on September 28, 1882, before the Penal Code went into effect, and the indictment was found March 22, 1883.

The nature of the action and the material facts are stated in the opinion. The evidence did not establish that the plaintiff had suffered or sustained any legal damages by reason of any of the acts or conduct of his father. (March v. Mabbitt, 3 Weekly Dig. 126; Houghkirk v. D. & H. C. Co., 92 N. Y. 219.) Unless plaintiff had actually suffered damages, he had no cause of action against the defendants.

<p>A provision in the statute under which a corporation is organized, or in its by-laws, requiring transfers of its stock to be made upon its books, is for its benefit; and where the owner of stock has assigned and transferred, for a valuable consideration, the certificate issued to him, and the corporation, when requested to make the transfer, without a valid reason refuses so to do, this amounts to a waiver of the requirements; the transfer is complete and the corporation is bound to recognize the title of the assignee, precisely the same as if it had done its duty and made the proper entries upon its books.</p> <p>S. being the owner of sixty-one shares of defendant’s stock, which stood in his name upon its books, for a valid consideration sold the stock and assigned the certificates to H., who presented them, with the assignment, to defendant, and demanded a transfer to himself upon its books ; this was refused. H. thereafter sold and assigned the certificates to plaintiff. In an action to recover dividends declared upon the stock, it appeared that, after notice of the transfer to H., defendant caused the stock to be seized and sold under an attachment issued in an action brought by it against S. Held, that assuming the purchaser could be deemed a bona fide purchaser, as to which qumre, it did not affect the rights of plaintiff as against defendant; that it could not set up its own wrongful act to defeat his title; and that he was entitled to recover.</p> <p>Also McZ.thafc a demand of payment, or of a transfer of the stock to plaintiff before suit brought, was not necessary; that having refused to transfer to H., denied his ownership and caused the stock to be sold as the property of S., no further request or demand was necessary on his part, or that of his transferee who succeeded to his rights.</p> <p>Also held, that plaintiff’s right to maintain the action was not affected by the fact that he could bring an equitable action to compel a transfer or ah action at law to recover damages' for the wrongful acts of defendant.</p>

<p>This case presented the same questions and was decided on authority of O'Brien v. Yo-ung {ante, p. 428).</p>