author: HaediN, J.:

text:
    DANIEL L. WILDER, Appellant, v. GEORGE B. PEABODY, RESPONDENT.

      A witness camnot testify as to the impression produced, on his mind ~by a conversation — impeaching the general character of a witness for veracity — what questions cannot he put to the witnesses called, to do so.

    Upon tho trial a witness, called by the plaintiff to testify as to a conversation he had had with the defendant, said that he could not say what the defendant had stated in it. Subsequently he was asked what impression that con: versalion made upon his mind. Held, that the question was properly excluded.
    Upon the trial of this action the defense called one George Morse for the purpose of impeaching the plaintiff’s character, he having been sworn as a witness. Morse having testified that the plaintiff’s general character for truth and veracity was bad, was asked, and allowed, against the plaintiff’s objection and exception, to answer in the affirmative the following question: “Did Mr. Wilder (the plaintiff) state to you in a certain conversation that he regarded it as no wrong to swear falsely against such a man as Albert Morse ?”

      Held, that it was error to allow the question to be put and answered, as it called for a specific declaration upon a collateral matter to which the attention of the plaintiff had not been called on his cross-examination.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee appointed in the County Court of Oneida county.
    The action was originally brought in a justice’s court, to recover for services alleged to have been performed by the plaintiff as an attorney for the defendant, in a suit brought by the latter, against the New York, Oswego & Midland Railroad Company. The services and retainer were denied by the defendant, and it was averred by him that whatever services the plaintiff had performed in that suit were performed for and at the instance of William Sanders, the attorney for the defendant in this action, who was the plaintiff in that suit, and were to be paid .forby Sanders and not by the plaintiff there, who is the defendant here. Upon the trial before the justice the plaintiff recovered a judgment from which the defendant appealed to the County Court of Oneida county, where a reference of the issues was ordered.

      James B. Jenkins, for the appellant.

      Shoearaft, Bennett & Tuttle, for the respondent.
   HaediN, J.:

The evidence of the plaintiff as a witness tended to support his averment of a cause of action against the defendant, and if he had been believed as a witness the referee would have reported in his favor. The testimony of the defendant tended to establish a special agreement with Sanders to bring the railroad suit, and perforin the services needful in its prosecution; and that the defendant did not employ the plaintiff, but that Sanders did, acting upon -the special arrangement he had made with the defendant here (plaintiff there). There was 'such a conflict in the evidence, that we cannot say that the report is against the weight of the evidence, and therefore upon the merits we ought not to disturb his conclusions of fact.

Upon the trial the plaintiff called as a witness J. W. Conant to prove a conversation he laid with the defendant. He stated that he could not say what the defendant stated. Subsequent to that the witness was asked what impression that conversation made upon his mind. This was objected to and properly excluded. (Bump v. Sumner, decided Fourth Department, June, 1879.)

In the cross-examination the witness testified that the railroad case was tried before him, as a justice of the peace. He was' then asked this question: “ Did Mr. Beach, on the trial of the cause before you, testify to a conversation which he had with Mr. Peabody?” This was objected to by the plaintiff upon several grounds, and the objections were overruled, and the plaintiff excepted. The witness answered in the affirmative. Then he was asked ; “ What clid witness Beach swear to in reference to the time of the conversation with Mr. Peabody, in reference to the employment of Wilder in the suit ?” This was duly objected to and overruled, and the plaintiff excepted. The witness answered: “ He swore he could not tell whether it was before or after the commencement of the suit; was inclined to think it was after.”

Beach had been called as a witness for the plaintiff, and gave evidence of a conversation held with the defendant in respect to the latter’s admissions and statements that he had employed the plaintiff. ITe stated that the conversation was before the railroad trial. Upon the cross-examination he was asked if he swore to the conversation on the trial before the justice, and he said he did not. It was therefore allowable to contradict Beach by the justice Conant. (Sprague v. Cadwell, 12 Barb., 517.) And it was a matter of discretion whether such contradiction should be allowed in cross-examination of Conant, before the plaintiff rested, or be called later, after the plaintiff had rested. There was no error, therefore, in receiving the evidence of Conant.

The defendant called George Morse, for the purpose of impeaching the plaintiff, as a witness. He gave general evidence to the effect that the plaintiff’s general character for truth and veracity was bad. He was then asked by the defendant this question, viz. : Did Mr. Wilder state to you, in a certain conversation, tbat he regarded it as no wrong to swear falsely against such a man as Albert Morse? This was objected to, and the objection overruled and an exception taken. Witness answered: “He did;” and the witness added that he could not tell “ how long ago it was.” Was it error to receive the answer to the question ? The general rule for the impeachment of a witness is that the inquiry must be confined to his general character. (Douglass v. Tousey, 2 Wend., 352; Commonwealth v. Moore, 3 Pick., 194; Curtis v. Fay, 37 Barb., 69 ; 2 Phil, on Ev., 955, Cow. and H’s Notes.) It has been settled in this State by the Court of Appeals, in People v. Gay (3 Seld., 380), that in general a party will not be permitted to give evidence of his witness’s good character until it has been attacked on the other side, either by the evidence of witnesses called for such purpose or by the evidence of the witness on cross-examination going to impeach his general character.

As we have stated, Wilder was not cross-examined as to the matter involved in the question put to George Morse. Suppose he had been, and admitted the declaration, could witnesses be called to sustain his general character ? Rex v. Rudge (2 Peake N. P. Cases, 232) is an authority for a negative answer. It was said, in Jackson v. Lewis (13 Johns., 505) that “ inquiry as to any particular immoral conduct is not admissible against a witness.” It was held in Rex v. Hemp (5 Carr. & P., 468) that a witness cannot be asked whether he has heard the witness sought to be impeached commit perjury in the trial of a cause. In Harrington v. Lincoln (3 Gray, 133), the court refused to receive evidence that a witness said if he had been on the stand he would have said something-even if it had been untrue, after the witness had denied so stating.

His «onviction of a “ crime” may be proved for the purpose of affecting the weight of his testimony, either by the record or by his cross-examination. (Code Civ. Pro., § 832.) A witness cannot be examined as to a distinct collateral fact for the purpose of impeaching him by a contradiction. (Harris v. Wilson, 7 Wend., 57.) This rule has an exception to it, which allows a contradiction of a witness who denies an attempt to suborn a witness to swear falsely in the cause. In that event a witness may be called to contradict bis statement. (Morgan v. Frees, 15 Barb., 352 ; 7 How. St. Tr., 1400.) And in sueli case tlie attention of the witness sought to be impeached by such contradiction must first be called to the matter in his cross-examination. In this case the question allowed to the witness, George IVIorse, was as to a collateral matter, and the attention of Wilder had not been called to it. It was said by SMITH, J., in Lee v. Chadsey (2 Keyes, 553), that the witness should have an opportunity in the first instance of stating his version of the matter — and that, for the absence of such opportunity, the exclusion of such evidence was proper. The question therefore was improper under the general rule and the exceptions thereto.

It was erroneously allowed, as it called for a specific declaration upon a collateral matter. (Opinion of IluNT, J\, in Lee v. Chadsey, 2 Keyes, 546, and cases there cited.) If it had tended to establish a disbelief in a supreme being it might have been competent to affect his credibility. (2 R. S., 408, § 88 ; Stanbro v. Hopkins, 28 Barb., 270; People v. McGarren, 17 Wend., 460.) When he became a witness he put liis general character in issue, but not his specific declarations or specific acts. lie was presumed to be ready to defend the former, but he could not be expected to be prepared to sustain and meet the latter. (Spencely v. De Willott, 7 East, 109 ; Harris v. Tippett, 2 Camp., 637.) We cannot say that the evidence thus improperly put in th case did not injuriously affect the plaintiff. He had given vital evidence upon the issue involved. He was contradicted and a clo question of fact was presented. Witnesses were called to impeach him, and also to sustain him, so far as his general character for truth and veracity, and as to whether he was worthy of belief under oath. The referee was called upon' to say whether -he would credit his testimony or that of the defendant. Therefore whatever tended to disparage Wilder contributed to render doubtful his evidence, and to produce just the result that was reached, a disbelief of his testimony. This improper evidence may have turned the scale against the plaintiff. We are not at liberty, therefore, to disregard the error, even under the liberal rule prescribed in section 1003 of the Code of Civil Procedure, or adopted by the courts in cases when it is clear that the party was not injured by an erroneons admission of evidence. Possibly the result would have been the same, if this improper evidence had not been received, but the best solution of the question can be had upon a new trial, which we should order.

Judgment therefore reversed, and a new trial ordered in the County Court of Oneida county, with costs to abide the event.

Talcott, P. J., and SMITH, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: IÍARDiN, J.:

license: Public Domain

text:
    In the Matter of the Application of SARAH A. LEACH, FOR an Order for Admeasurement of Dower, etc., Appellant, v. JAMES S. LEACH, Respondent.

      The right of a husband to an estate as tenant by the cu/rtesy still exists — when the widow of one of the heirs of the wife is not entitled to dower during the continuance of the said estate.

    In 1856 one Caroline Leach died, seized of certain real estate, leaving a husband and three children, all of whom have since died intestate and without issue. The petitioner was the widow of one of the said children, her husband having died in 1879, leaving his father his only heir at law. On an application by the petitioner to have dower admeasured to her in the said land :

      Held, that on the death of Caroline Leach, her husband took an estate for life in the said property, as a tenant by the curtesy, and that his possession . thereof could not be disturbed by the heirs of his wife, or by the widow of any of them.
    That- the fact that the father was the sole heir at law of the petitioner’s husband, did not give her the right to have dower admeasured to her, as her right thereto was defeated by the death of her husband before the termination of the life estate of the father, and before any estate or interest in possession had vested in him.
    Appeal by Sarah A. Leach from an order of the Onondaga Special Term, refusing to award dower, and dismissing proceedings instituted by her for its admeasurement.
    In 1852 Caroline "W. Leach, the wife of James S. Leach, purchased a house and lot on South Salina street, in the city of Syracuse, and continued to reside therein with her husband, until in 1856, when she died intestate, leaving her husband and three children her surviving. The three children have since died intestate, and without issue. One of the sons, viz., N. K.. Leach, married the petitioner in August, 18Y8, and died in August, 18Y9. As his widow, she now asks to have dower in the house and lot on Salina street, owned by her husband’s mother at the lime of her death. It appeared that upon the death of N. H. Leach, his father, James S. Leach was his sole heir at law.

      E. A. Kingsley, for the appellants.

      Le Roy Morgan, for the respondent.
   IÍARDiN, J.:

I think we ought to hold that James S. Leach, upon the death' of his wife intestate, was entitled to and took an estate in her lands as a tenant by curtesy, and became entitled to enjoy the use of such land during his life free from' any disturbance of his possession by her heirs or the widow of either of them. The right to the tenancy by curtesy was not taken away by the Laws of 1848 and 1849, as to property of married women, or the amendments thereof. There lias been considerable conflict in the decisions upon this question, but we think the weight of authority is now clearly in favor of the views just expressed. (Hatfield v. Sneden, 54 N. Y., 280 ; Matter of Winne, 2 Lans., 21; Burke v. Valentine, 52 Barb., 412 ; affirmed by the Court of Appeals in 1872, 6 Alb. L. J., 167; Barnes v. Underwood, 47 N. Y., 351.) Undoubtedly a married woman may convey or devise her real estate, as though she was a feme sole. (Cashman v. Henry, 75 N. Y., 103 ; Meeker v. Wright, 76 Id., 262.)

Nor does the fact that James S. Leach was the sole heir at law of the husband of the petitioner, give her the right to have,dower admeasured in the premises. The death of her husband before the termination of the life estate, before an estate or interest vested in possession, defeats her right to claim dower in the premises of which his mother died seized. (Durando v. Durando, 23 N. Y., 331; Safford v. Safford, 7 Paige, 259 ; Green v. Putnam, 1 Barb. 506.) Her husband was not “seized of an estate of inheritance at any time during tbe marriage.” (1 R. S., p. 740, tit. 3, 5th ed., p. 31, § 1.) •r$ W CO rH <zco

The order of the Special Term must be affirmed.

Talcott, P. J., and SMITH, J., concurred.

Order affirmed.


text:
    CARLOS A. RUGG, and others, Appellants, v. JONATHAN C. RUGG, and others, Respondents.

      Will — the witnesses thereto should sign after the testator — one named therein as executor is a competent witness in behalf of the proponents — the validity of its execution may he established against the evidence of the witnesses thereto.

    The subscribing witnesses to a will should sign the same after it has been subscribed by the testator.
    One named as an executor in a will is a competent witness in behalf of the proponents thereof, to establish the validity of its execution.
    The due execution of a will may be established by other evidence, than or in opposition to the testimony of the subscribing witnesses.
    Appeal from a decree of the surrogate of Cattaraugus county, admitting to probate the last will and testament of Jonathan G. Bugg, deceased.
    The only question brought up by the appellants related to the due execution of the will. The return of the surrogate contained “ all the evidence taken in said matter in reference to the execution and publication of said will.” The will bears date March 27,1877. There was an attestation clause in tbe usual form. H. W. Hooker and W. B. Smallwood were the two subscribing witnesses. The executors named therein were Jonathan G. Bugg, Jr., and Lemuel S. Jenks.

      W: Woodbitry, for the appellants.

      Allen c& Thrasher, for the respondent.
    If the subscribing witnesses are unable to recollect the attestation, then the execution may be proved by other witnesses and from surrounding circumstances, including the written attestation. (4 Wend., 277; Janmcey v. Thorny 2 Barb. Oh., 41; Nelson v. MeGiffert, 3 Id., 158 ;
      Trustees of Aubwrn Semvna/ry v. Calhoum, 25 N. Y., 422, 425 ; Willard, on Executors, 109 ; Thompson v. Leastedt, 3 Hun, 395 ; Cornwell v. Wooley, 43 How. Pr., 475 ; Morris v. Porter, 52 Id., 1; Thompson v. Stevens, 62 N. Y., 634; Orser v. Orser, 24 Id., 51; Matter of will of John Kellam, 52 Id., 517.) All the acts of the testator going to make up the execution of the will were done at the same time, and it is immaterial which act preceded the others if no material act or thing were omitted. (Poe v. Roe, 2 Barb., 200; Seguvne y. Seguine, 2 Id., 285 ; TLeeney v. Whit-mo/rsh, 16 Id., 141; 54 Id., 275 ; JaeJcson y. Jackson, 39 N. Y., 153.)
   HaediN, J.:

Jackson v. Jackson (39 N. Y., 153), is an authority for holding that the witnesses who are to attest the subscription and publication of a will by a .testator should sign the same after the subscription by the testator. The declaration of the testator may be that it is his last will, on the same occasion of the signing and witnessing, and it is not essential that it immediately precede the subscription.

We are called upon to review the evidence and from it determine whether there was a due execution of the will shown by it. Both of the subscribing witnesses were called, and gave evidence touching the circumstances of the éxecution of the will; and Jenks, who was named as one of the executors, was also called as a witness in behalf of the proponents, and gave evidence of the facts and circumstances attending the execution of the will. His testimony was objected to by the contestants. But the authorities require us to hold that he was a competent witness, and that his testimony was properly received by the surrogate. (McDonough v. Loughlin, 20 Barb., 239 ; Children's Aid Society v. Loveridge, 70 N. Y., 387; Pruyn v. Brinkerhoff, 7 Abb. Pr., N. S., 401.) We must, in considering the question raised in respect to the due execution of the will, give effect and force to the evidence given by Jenks. He was a man about sixty years of age, had been accustomed to draw wills, and supervise their execution, and the evidence given by him is to the effect that the essentials to a due execution were all observed, and he is emphatic in his statements that the testator subscribed his name before the subscribing witnesses. It is settled, beyond doubt or discussion, that the due execution of a will may be established by other evidence than such as may be derived from the subscribing witnesses. Indeed, in opposition to the evidence of subscribing witnesses, wills have- been -established and admitted to probate. (Trustees of Auburn Seminary v. Calhoun, 25 N. Y., 425; and op. of Denio, J., in Tarrant v. Ware, quoted in' a note to the last case; Jauncey v. Thorn, 2 Barb. Ch., 40.)

But it is said that one of the subscribing witnesses in the case before us, stated that the testator did not sign until after the witnesses had subscribed their names. During the course of his examination he became somewhat in doubt as to the order of the signing, and he stated, viz.: “ I thought first it was after, and it seems as if it was. I may be mistaken.” The other witnéss in the course of his examination stated, viz.: “ I am not positive who signed first; think Mr. Hooker did. Mr. Hooker first signed it, Mr. Jenks showing him where; he rose, I sat down and asked Mr. Jenks where I should sign.” Then in answer to the question, viz.: “ Do you recollect that Mr. Bugg had signed this before Mr. Jenks told you where to sign?” he said, “I do not recollect.” . . . He is further asked, viz.: Ques. “ Is it not your best recollection, that immediately after you signed, Mr. Jenks picked up the paper, folded it, and you and Mr-. Hooker immediately passed out,” and the witness answered: “ I think it was.” Ques. “ Before that you had seen Mr. Bugg sign ?” Ans. “Yes, sir, after the time it was folded Hooker and I passed out.” He subsequently stated, “I do not remember that Bugg signed after us ; I saw him sign.” Thus we see that the two witnesses are not clear and positive in relating the order in which the events stated by Jenks in his evidence, took place. But we think their evidence, taken with his, gives rise to a very strong presumption, that after the testator had signed his name, the two witnesses became subscribing witnesses, by placing their names below ffhe attestation clause. In Gwilliam v. Gwilliam (3 Swabey & T., 200), it was held that the court is at liberty to judge from the circumstances of the case, whether it was probable that the testator’s name was on the will or not, at the time of the attestation; and being of the opinion that it was, to pronounce for the will and its due execution. That was a case where two old ladies were the subscribing witnesses, and they testified they did not remember the testator’s name being on at the time they became subscribing witnesses. S. C. Cresswell upheld the proofs and admitted the will to .probate.. The same principle is asserted in the Matter of John Kellum's Will. (52 N. Y., 517.) ' Church, Oh. J., says: “ The principle is that a mere failure of memory on the part of the witnesses shall not defeat a will, if the attestation clause and other circumstances are satisfactory to prove its execution.” We have read all the evidence touching the execution of the will before us, and we cannot resist the conclusion that the testator’s name was written by him to the will before the subscribing witnesses signed their names in his presence, and in the presence of each other, and the testator declared the instrument to be his last will and testament. Some questions were quite leading, but as the witnesses were not clear in recalling the events attending the execution of the will, we cannot say that the surrogate abused his discretion in allowing them, and therefore we must decline to interfere with the rulings made upon the hearing.

We do not pass upon the allowance made by the surrogate, as to costs to the contestants, as the executors have not appealed from the decree. (Noyes v. Children's Aid Society, 70 N. Y., 482.)

The surrogate’s decree must be affirmed, with costs to the respondents, payable by the appellants personally.

Talcott, P. J., and Smith, J., concurred.

Decree affirmed, with costs of the appeal to be paid to the respondents by the appellants personally.


author: Smith, J.

text:
    WILLIAM H. ROBSON, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Code of Givil Procedure, § 999 — upon what grounds a motion for a new trial on the minutes of the judge may he made.

    Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at the Cayuga Circuit, and also from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for the wrongful ejection of the plaintiff from one of the defendant’s trains.. The plaintiff purchased tickets for the passage of himself and wife on the defendant’s cars from Newark to Port Byron, which the conductor saw and punched soon after the train left Newark. When the conductor called for the tickets as he was approaching the Port Byron station, the plaintiff, having forgotten where he had placed them, was, for the time, unable to find them. Whereupon the conductor ejected them from the car, without having first demanded payment of the fare.
    The court, at General Term, said:' “It is insisted by the appellant’s counsel that the verdict is contrary to law, because the court charged the jury that the conductor took the risk of the correctness of his determination that plaintiff’s failure to produce his tickets was willful. As no exception was taken to that part of the charge, tlie point cannot be raised, unless it is brought up by the appeal from the order denying a new trial. A motion may be made on the minutes to set aside a verdict because it is £ contrary to law.’ (Code of Civ. Pro., § 999.) That ground of the motion was superadded by the present code to those specified in the former (¡ode. (Code of Pro., § 264.) Under the old code, the court could not entertain a motion on the minutes to set aside a verdict on the ground that it was contrary to the instructions of the court. (.Tmson v. Welch, 51 N. Y., 244.) And there was some doubt as to the power under the code, in a case where the jury had rendered a verdict against the clear and uncontradicted evidence in the case, and contrary to law. (.Algeo v. .Duncan, 39 N. Y., 313.) The provision of the new code, above adverted to, was probably intended to meet those cases, but it is very questionable whether it was intended to authorize a motion to set aside a verdict on the minutes, on the ground of an error in the charge, to which no exception was taken, and which, if the attention of the trial judge had been directed to it by an exception, might have been corrected at the trial. But passing that question, we think the charge referred to was unobjectionable. The decision of the conductor was not conclusive upon the rights of the plaintiff. Its only legitimate effect was to relieve the conductor from the imputation of malice or bad faith in ejecting the plaintiff, notwithstanding he knew that he had tickets for himself and wife. He, nevertheless, exceeded his authority in putting the plaintiff off without demanding fare, and giving him an opportunity to pay it.”

      'Edmard Harris, for the appellant.

      H V. Howland, for the respondent.
   Opinion by

Smith, J.

Taloott, P. J., and' Haudih, J., concurred.

Judgment and order affirmed.


author: Hardin, J.;

text:
    THE FIRST PRESBYTERIAN SOCIETY OF THE TOWN OF CHILI, Plaintiff, v. BENJAMIN F. BOWEN, as Executor, etc., of JOHN BOSWELL, Deceased, and others.

      A bequest to an unincorporated, association or society is void — there can be no valid trust without a certain donee or beneficiary.

    OoNtboversy submitted upon agreed facts, under section 12J9 of the Code of Civil Procedure.
    The plaintiff is a religious corporation, having a house of worship in the town of Chili, Monroe county. The defendant Bowen is the executor of the will of John Boswell, deceased, and the other defendants are residuary legatees under the will of the deceased. The will contained the following clause, viz.: “ I give and‘ bequeath . .
    to the Presbyterian Church in Chili, in which I worship, $2,000, to be used as a permanent fund for the support of the Gospel. I give to the Presbyterian Cemetery $1,000, as a permanent fund, the interest to be used when needed to improve the ground, or fencing, provided always that one-fourth of the amount shall be raised from those having charge of the cemetery.- If one-fourth is not raised when required, I require the interest to be applied to support the church in the administration of the Gospel.” The plaintiff claimed to be entitled to the $1,000 legacy and the custody- thereof; while he residuary legatees claim that the bequest was void and that they were entitled to receive the said sum. The executor asked to be instructed by the court as to the proper disposition to be made by him of such funds.
    The plaintiff is a religious corporation 'duly organized under the laws of the State of New York, and owns the fee of certain lands in the town of Chili, adjoining their house of worship, which lands, with other, have been for mam' years, and now are, occupied for the purposes of a cemetery or burial-place for the dead. The. land has been fenced, improved, and kept in order by the labor and contributions of many citizens of the neighborhood, some of whom were members of the said church and congregation, and others of whom -were not; and citizens who were not members of the said church or congregation, as well as those who were, have been accustomed to bury their dead in the said cemetery grounds, which have for many years been known as The Presbyterian Cemetery. There is not in the said town any corporation known to the law as “ The Presbyterian Cemetery of the town of Chili,” and never was.
    Por many years prior to his death the said John Boswell was one of the trustees of the plaintiffs society, and as such acted in the purchase, laying out, and care of the said grounds. On one occasion, a few years before his death, he told persons who. were, like himself, interested in keeping up the said cemetery, that he intended to leave something by his will for the care and keeping up the cemetery grounds and to make it a condition of the use of that fund, that others should raise money for the same purpose. The competency of proof of this fact was objected to by the defendant.
    The court at General Term said: “ The bequest of $1,000 to the Presbyterian Cemetery must fail, as there was no corporation by that name. As a voluntary unincorporated association it is incapable of taking. (Downing v. Marshall, 23 N. Y., 382 ; Owens v. Missionary Society, 14 Id., 380 ; Sherwood v. American Bible Society, 1 Keyes, 561; McKeon v. Kea/rney, 51 How. Pr., 350; Betts v. Betts, 4 Abb. New Gas., 403 ; Leona/rd v. Bamewport, 58 Plow. Pr., 384; White v. Howard, 46 N. Y., 144.) Nor can the plaintiff take the bequest as a secondary beneficiary. As there was no legal legatee to receive it, and to ascertain whether the condition would be complied with, or to keep the body of the bequest, there was no legatee capable of applying the income to the supposed secondary purposes. The will entirely fails to name a trustee to take the bequest, and it is well settled that there can be ‘no valid trust unless there be a certain donee or beneficiary.’ Looking into the surrounding circumstances to ascertain the intent of the testator, in* using the language found in his will, as in lefevre v. Lefevre (59 N. Y., 440), we find that the testator had just before evinced his testara entary disposition towards the plaintiff, the churcji, by giving it $2,000, and then he called to mind the cemetery association, and undertook to provide for it, as a separate and independent legatee; and though we may assume his intent was clear in respect to it, he failed to carry out tliat intent by a proper designation of a recipient capable in law of receiving, expending and applying tbe fund named. Nor is tbis sncb a charitable bequest as this court can execute. (JBascom v. Albertson, 3é N. Y., 585.)
    “We therefore must order judgment for the defendants, declaring the bequest void.”

      8. D. Bentley, for the plaintiff.

      J. A. Stull, for the defendant.
   Opinion by

Hardin, J.;

Talcott, P. J., and Smith, J., concurred.

Judgment ordered for defendants, and fund ordered to be paid to the residuary legatees, with costs to the defendants, to be paid out of the fund.


author: HabpiN, J.;

text:
    RICHARD B. GREENWOOD, as survivor of HOWELL HOPPOCK and RICHARD B. GREENWOOD, Respondent, v. WILLIAM H. H. SIAS, Appellant, Impleaded, etc.

      Action to charge, with a firm debt, one who has held himself out to be a member thereof — when the declarations of the •person to whom the goods were sold cere admissible as against the person sought to be charged.

    Appeal by the defendant Sias from judgment in favor of the plaintiff, entered on the report of a referee. The action was brought to recover for a bill of goods sold for the plaintiff’s firm by one Prindle, as their agent, to the defendant Ensworth, who conducted the negotiations therefor, and received the goods at a store in Sacketts Harbor. The question litigated was as to whether the defendant Sias was a partner, or had held himself out as such, so as to become liable for the purchase made by Ensworth. The referee found that Sias was not in fact a partner of Ensworth, but that he liad said sufficient to the defendant, Ensworth, “ to lead him to infer that the said Sias was his copartner' in business, and the defendant having so stated and represented to plaintiff, and the plaintiff having sold and delivered the goods in question upon the faith of such statements and representations, tbe defendant Sias is estopped from defending against plaintiff, upon the ground that he is not in fact a copartner of the defendant Ensworth.” The referee reported against both of the defendants for $196.32 and interest thereof, from July 11,1878. The defendant Ensworth did not answer or defend.
    The court, at General Term, said : “ It was not error to receive the evidence of Prindle, the agent of plaintiffs firm, who solicited the order for the goods in question in June, 1878. First. It was competent to prove the sale of the goods, and that the negotiations therefor were made by the defendant Ensworth, and that the order for the goods thus taken was transmitted by Prindle, the agent, to New York to the plaintiff’s firm, and that the same were sold to the avowed firm of ‘ IT. B. Ensworth & Co.’ Second. Nor was it error to show that in that conversation and negotiation for the goods Ensworth represented that Sias was his copartner. The declarations of Ensworth were not admissible to establish that Sias was a partner, but for the purpose of establishing that the plaintiff’a firm sold the goods in the faith that he was such a copartner, and in reliance upon the acts and conduct of the defendant, tending to carry the idea that he was a copartner. It was one of the elements entering into the question of estoppel. (Poillon v. Secor, 61 N. Y., 456.) Of course, we are not unmindful of the general rule that the declarations of one of several partners cannot be given in evidence to prove a partnership between them, until the liability of the party making the declaration has been established. (McPherson v. Rathhone, 7 Wend., 217: Whitney v. Ferris, 10 Johns., 66.)”

      Porter dé Watts, for the appellant.

      La/nsi/ng da Rogers, for the respondent.
   Opinion by

HabpiN, J.;

Talcott, P. J., and Smith, J., concttrred.

Judgment affirmed.


text:
    JAMES R. HOWELL, Appellant, v. CHARLES E. H. EARP, SHERMAN S. JEWETT, as President, etc., and others, Respondents.

      Judgment creditor's action — ■property transferred by the debtor to one from whom he had embezzled money cannot be reached by it — right of a. joint stock association to hold real estate conveyed to it, can only be questioned by the people — an owner of property who has allowed another to sell it and recovers a judgment against him for its value, cannot set aside the transfer.

    Appeal from a judgment in favor of tbe defendant, entered upon tbe report of a referee.
    Tbis action was in the nature of a creditor’s bill to reach property which the defendant Earp and. his wife had conveyed and transferred to the other defendants, to liquidate a liability of Earp to them for an embezzlement of. about $30,000.
    One Howell, the plaintiff, in December, 1875, recovered, in the Superior Court of the city of Buffalo, a judgment against Charles E. H. Earp, for $60.39 and interest, in an action against him and his wife for debts due a copartnership consisting of the said Howell and Earp’s wife. One-half of the judgment belongs to Howell, and one-half to Mrs. Earp, after payment of the costs, and any debts of the firm. Earp had received the property under a general assignment, executed to him by the firm, under which he was to pay the firm’s debts and return any surplus to the assignees. He had sold the firm assets but neglected to pay over the proceeds. Hpon that judgment an execution was issued, and returned wholly unsatisfied. Thereupon the plaintiff Howell brought this action in the nature of a creditor’s bill against Charles E. H. Earp, Jeannette Earp, his wife, Sherman'S. Jewett as president of Jewett & Keating, a joint stock association, and Sherman S. Jewett. The object of tbis bill was to reach certain real estate and personal property conveyed and transferred to Jewett & Keating, and to Jewett, for the benefit of the said association, in July, 1875, by the said Charles E. H. Earp, and Jeannette Earp, his wife. The evidence showed that the defendant, Charles E. H. Earp, from 1867 to July, 1875, while a clerk of Jewett & Keating, embezzled and appropriated to Iris use over $20,000. That Jewett & Keating learned of it in July, 1875, and caused his arrest. That while he was under arrest, and before a formal charge had been preferred, he confessed Ms embezzlement and sought an opportunity to turn over to Jewett & Keating, and foi their benefit, the property, real and personal, so transferred by him and Ms wife. Most o: the property so turned over was purchased by Earp with the funds so taken from Jewett & Keating. The plaintiff sought to establish and gave evidence tending to show that the transfers were obtained by duress. The defendants gave evidence that no undue influence or duress was practiced upon Earp, or his wife, when they made the conveyances and transfers. The plaintiffs also claimed that neither the joint stock association noi Keating, in its behalf, could acquire title to and hold the real estate, as it was not needed for its uses.
    The court at General Term said : “ The referee has found there was no duress, and we cannot, upon a careful consideration of the evidence before him, disturb his finding as against the fair weight of the evidence- First. The evidence was abundant to show that the amount embezzled exceeded the value of the property conveyed and transferred. Second. That it was taken in good faith to reimburse the losses sustained and not to defraud the creditors of Earp, nor for any fraudulent or collusive purpose. Earp was afterwards, and on July 27, 1875, charged with embezzlement of $184 by Jewett ite Keating, and pleaded guilty to the charge before a magistrate, and was committed to prison. "Without their knowledge he subsequently gave bail, and subsequently fled the country. They subsequently caused him to be indicted but he has not been found to be tried. Jewett tfc Keating did not agree to compound the felony. Transfers thus made have been and equitably ought to be upheld, (Ola/rk v. Fisher, 1 Paige, 176 ; Ingersoll v. Roe, 65 Barb., 356.) Yice-Chancellor Runyon, of New Jersey, in 8millie v. Titus, just decided to uphold • a mortgage taken under somewhat similar circumstances, and allowed a foreclosure thereof as a valid mortgage. (21 Alb. L. J., 136.) The transfers and conveyances passed the legal and equitable title to the real and personal property from Earp and wife. Such was their legal effect.

      “ The act of 1867, chapter 289, as to joint stock companies, maybe construed as a restraint upon the right of a joint stock associartion to purchase and hold the real estate not needed for their immediate use. Such seems to have been the construction given to it in Rumtey v. Lcmig (58 Barb., 489). That question is not before us. If the statute is violated, it is the province of the State to see to its enforcement. The plaintiff is not entitled to break in and have conveyances declared void in this collateral mode. (Rmvycm v. Coster, 14 Pet., 128; Humberts. Trinity Chwreh, 24 "Wend., 630; Matter of Ref. Presb. Church, 7 Plow. Pr., 476; Boga/rdus v. Trimty Churoh, 4 Sandl. Oh., 758; Could v." Conyuga National Bcmh, MS., 4th Department;
      National Bcmk v. Matthews, 8 Otto, 621; 8. O., 19 Alb. L. J., 132.)
    C£ It was entirely competent for Earp to transfer his property, and that which he had purchased with the embezzled funds or otherwise, to Jewett & Keating; and to cause his wife to transfer hers, or that which he had caused, by use of such oi other funds, to be taken in her name, in liquidation, to pay, or towards the payment of, his indebtedness to Jewett. & Keating. Even an assignment of his property for such purpose, with preference to Jewett & Keating, to the exclusion of the plaintiff, as a preferred creditor, would have been valid, if free from actual fraudulent intent. (BLausett v. Yilma/r, 76 N. Y., 630.) As the conveyances and' transfers were in good faith, and without any ‘intent to defraud the creditors of Earp,’ they might be upheld upon the facts found, without resorting to the principle which allows a party to trace his property, or the proceeds thereof, into other hands, and reclaim the same, except from bona fide pux-chasers, as stated in Newton v. Porter (69 N. Y., 133), and Ferris v. Yam, Yechten (73 N. Y., 113).
    “ In the action in the Superior Court, the referee found that on March 15, 1873, by a certain instrument, ‘ the said Howell and the said Jeanxxette did assign and transfer to said Charles E. IT. Earp the stock in trade'and business’ of said firm of Howell & Co.; that Earp was to take possession thex'eof and sell off the stock, and pay the debts of said concern in full, and to account to said Jeannette and said plaintiff for the surplus after payment of such debts; that he did sell the stock and fixtures, and received payment therefor, but that he had not accounted and paid over the moneys so received. The referee also required an account to be made up and stated. It was made up, and shows that all the property and stock were charged to Earp, and a balance struck of $6,039.62; and as a conclusion of law, it was found that Earp ‘owes the said copartnership the sum of $6,039.62, and that the balance belongs to said Earp and Jeannette in equal portions.’ It also appeared that Earp sold some of the property thus acquired to one Douglass, in part payment for the Fort Erie property. This seems to have been with the knowledge and assent of Howell. The title, therefore, passed from Earp. And as this is a creditor’s bill to reach the property of Earp, it is sufficient to answer that Earp was authorized to sell the property, and sold it with the assent of the former owners, and has been charged in the account stated in the plaintiff’s action, with the value thereof, as an indebtedness. The case thus presented is not one where the plaintiff and Jeannette Earp, or either of them, have the right to reclaim the specific property’ transferred by them to Earp, and after they authorized him to sell and receive pay therefor.”

      Tracy O. Becker, for the appellant.

      FrtmkVm D. Locke, for the respondent.

       Reported, Ante, p. 298.

   Opinion by

Hardin, J.;

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed, with costs.


author: Talcott, P. J.

text:
    JOSEPH COSTELLO, by Guardian, Appellant, v. JUNIUS JUDSON, Respondent.

      Liability of a master to a servant in.gu.red by dangerous machinery — duty of the master where the servant is a minor — master is not bound to give instructions to warn the servant agadnst an evident and obvious danger — when instructions gimen by the master to the person in charge of the machinery may be proved.

      Appeal from a judgment in favor of the defendant, entered on • the verdict of a jury.
    The action was brought by a minor, by his - guardian, to recover ■ damages for injuries received by the minor, while in the employment of the defendant in a machine shop, and while ascending an elevator therein. The complaint alleged that the defendant negligently, carelessly and improperly exposed the plaintiff to danger from dangerous machinery, and negligently omitted to guard dangerous machinery, and negligently and carelessly employed unskillful, incompetent and improper persons to attend such machinery, and negligently and carelessly omitted to give the plaintiff notice of the danger, or instructions to protect himself from injury. It appeared that the plaintiff, a boy of fourteen years of age, who was employed to carry- water in the building for the use of the defendant’s employees, while ascending in an elevator, attached thereto, projected his foot beyond the elevator floor, so that it was caught under the arch of one of the doors opening into the said elevator, and so injured that amputation at the ancle was necessary. - The elevator in question was for the purpose of raising and lowering freight to the various stories of the manufactory, and ran in a square brick tower which inclosed it on three sides. The fourth side ran immediately in front of a series of doors, opening into the elevator well, one in each story; over each door was an arch, and over each arch was a sill flush with the building. When the plaintiff was employed the defendant’s overseer told him: “Your business is to carry water. You can carry it up the stairs or on the elevator, but if you go on the elevator you must be careful and not fool on it.” The answer in the case contained a general denial, and an allegation of contributory negligence on the part of the plaintiff. The plaintiff had been in this employment some four days before the accident, and during that time had apparently been in the habit of using the elevator in conveying the water in pails up to the place where it was used. On the occasion of the ascension when the accident occurred, he was not carrying water, and it did not clearly appear why he ascended the elevator at that time.
    The court, at General Term, said : “ The first exception presented for consideration is on a refusal to charge as.requested. The defendant’s counsel requested the court to charge ‘ that if the elevator was dangerous for a boy of the age of the plaintiff, it was the duty of the defendant to point out the particular dangers.’ The court declined to vary the charge as given. The charge as given was in these words. The trial judge, after calling the attention of the jury to the facts and explaining the principles of law applicable to the case, had said, amongst other things: ‘ All these several elements necessary to a recovery must be considered in the light of the fact that the plaintiff was a boy of fourteen years of age. I have said that it is necessary that you should fjnd that he was injured while exercising all due care for his own safety. Due care depends on the circumstances. The most important of these circumstances is the circumstance of his own age and degree of expedience, so that the question will be, in the first place, if you find that the elevator was safe for a man of mature age, of sound judgment and competent experience, what was required, if anything, to make it safe for a youth of the age of fourteen? You will see that the elevator might have been perfectly safe for a man of judgment and experience, and yet unsafe for the use of a boy of a certain age and degree of inexperience, . . . and was there negligence on the part of the defendant, acting through those who were charged with the duty in that respect, to do that which was necessary to render the elevator safe for the use of this lad ? if so, then so far the plaintiff would be entitled to a verdict.’. This part of the charge was in effect leaving it to the jury to say whether the instructions given by the defendant’s overseer to the plaintiff were sufficient to caution him in regard to the care to be used while ascending or descending in the elevator. And this, we think, was a proper disposition of that question, or one at least of which the plaintiff cannot complain. The danger of injury which would obviously result from allowing one of his feet to project beyond the platform of the elevator in its ascension would, we think, be obvious to a youth of the age of fourteen, of ordinary capacity, which it appears the plaintiff was proved to be of. And it cannot be that it is the duty of the master to give his employee any express and particular instruction to guard against such dangers as are evidently obvious, or in the language of the request, ‘ to point out the particular dangers.’ At all events the jury were competent to judge whether the instructions given to the plaintiff were sufficient to caution him against such exposure of any of his limbs. (Hay or oft v. Lake Shore B. B. Go., 2 Hun., 489 ; affirmed 64 N. Y., 636 ; Thxtrber v. Harlem, dee. B. B. Go., 60 N. Y., 326 ; Sulli/vcm v. India Marmf. Go., 113 Mass., 396 ; Shearman & E. on Negligence, §§ 49, 50.)
    “The next exception to which attention is called is that the defendant was allowed to prove the instructions given to the boy who ran the elevator, it not having been proved that tbe plaintiff was cognizant of such instructions. The competency of the boy who ran the elevator was one of the issues in the case, and upon that ground the instructions relating to the manner in which the duty was to be discharged, given him by the defendant, or his overseer, were competent on the question of the defendant’s liability for negligence. The objection was general, no attention being called to any view of the case which made the'evidence incompetent.”

      J. O. Goehrcme, for the appellant.

      Satberlee c& Yeoman, for the respondents.
   Opinion by

Talcott, P. J.

Present, Talcott, P. J., Smith and Hardin, JJ.

Judgment affirmed.


text:
    HENRY STAPE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      When a party is not obliged to jroduce a peeper in his possession. — when an irrelevant statement of a witness cannot be contradicted to discredit his testimony— a jury may convict on theuncorroborated testimony of an accomplice — what ques- ■ turns may be put to a witness to impeach him.

    Writ of Error to the Court of Sessions of Ontario county, with a bill of exceptions containing all the evidence, to review the trial and conviction of the plaintiff in error of grand larceny.
    The plaintiff was indicted in February, 1879, for grand larceny, committed October 2, 1878, in the town of Gorham, by taking a horse and buggy from one Murray "Witter’s barn burglariously in the night-time, in company with Frederick Lauer. The latter was discharged upon the trial. The jury having convicted the plaintiff in error, he was sentenced to four years’ imprisonment. James L. Bush and his wife Adelaide were the principal witnesses called to establish the crime. Bush, having been charged with the crime, was arrested, and, having pleaded guilty, was committed to await trial. Before this trial came on a justice of the peace, by the name of Doolittle, called upon Bush, and took down a statement of the details of the crime, and took his affidavit thereto and lodged it with the district attorney, who had possession of it when Bush was upon the stand as a witness. The justice was called and testified that he delivered the statement to the district attorney shortly after he took it from Bush. Thereupon the prisoner’s counsel asked the district attorney to produce it and the district attorney refused, stating it was made at his request and for his use. At an earlier stage of the trial, Bush was asked in the course of his cross-examination about making the affidavit, and he stated it was made the Sunday after he was lodged in jail, and stated that he could not say what was done with the paper. Thereupon the prisoner’s counsel called for the paper, and the district attorney refused to give it up.
    At a later stage of the trial, the case states that the prisoner’s counsel “again called upon the district attorney for the affidavit made by Bush, which was refused for reasons stated before.” The prisoner’s counsel claims that it was important that the affidavit should be produced “ to impeach the evidence of Bush; and the district attorney had no right to smuggle this paper away to prevent a legitimate use of it.”
    The court, at General Term said : “We do not find that the district attorney in any manner ‘ smuggled the paper away.’ It was made preparatory for his use, as we must assume from the statements already quoted, and kept by the district attorney after it was placed in his hands by Justice Doolittle. He had apparently the legal and proper custody of the statement and affidavit. Nor do we find any evidence in the case, which would justify us in concluding that the affidavit was ‘ evidence ’ which could be properly used upon the issue involved. There was nothing given to show that the witness Bush had ■ made any different statement of the transactions in the affidavit from his evidence before the court. Until that fact was made to appear we fail to see how the affidavit could have been used, had it been handed over to the prisoner’s counsel. We are not to presume that it would contradict the witness, nor that the district attorney had any improper motive in keeping possession of it. Nor do we think he was under any duty to part with its possession upon the demand of the prisoner’s counsel ; we do not think we have before us an attempt £ to stifle or suppress evidence.’ (1 Graham & Waterman on New Trials, 55; People v. Yermilyea, 1 Cow., 369.) It is not necessary for us to pass upon the question whether the prisoner’s counsel might not have obtained an inspection of the affidavit by proper diligence, in advance of the trial, or by calling the district attorney as a witness with a subpoena duees teeum. Such diligence was not used. (People v. Yermilpa, supra.) \ . .
    “ Nor can we say that the refusal of the court to allow Gates and H. Hannon to testify to statements made by Bush when in jail, as to his stopping at Harmon’s barn to steal his horse, and found him so thin he would not and did not take him. The prisoner, it is true, had asked Bush if he made such a statement, and he said he did not. The fact was not material to any fact involved in the issue; nor was it relevant or material to the evidence given in chief by Bush. Its exclusion is, therefore, justified by the rule we have laid down in People v. Gox
       (10 Weekly Digest, 29, op. of Smith, J.); 1 Wharton Ev., 559 ; Ga/rpenter v. Ward (30 N. Y., 243); Marx v. People (63 Barb., 618); Ross v. Achermcm (46 N. Y., 210). . . .
    “The witness, Walters, was asked — did you desert from the army? This was objected to by the prisoner’s counsel, and the objection was overruled and an exception taken. The witness stated, viz.: £ I don’t know whether I did or not.’ He. did not claim his privilege. If he had been convicted of the crime of desertion. he would have been a competent witness, though his'conviction might have been, shown to affect his credibility, and it might have been proven by the record, or by his own oath. (Code of Civ. Pro., § 832.) The party examining him might not have been concluded by his answer. (§ 832.) But the question put to the witness, was as to his guilt or innocence of the crime of desertion. In the absence of a claim of his privilege, we think the question was proper. (Great Western Tel. Go. v. Loomis, 32 N. Y., 127; Shepard v. Parker, 36 Id,, 517.) This is distinguishable from the case of People v. Grapo (15 Hun, 269 ; affirmed, 76 N. Y., 288), as in that case the inquiry was simply as to whether he had been charged with bigamy.
    “ There was no error committed in the charge to which an exception was taken. {Brotherton v. People, 75 N. Y., 162.) It was not error for the court to refuse to charge the jury that they could not convict on the uncorroborated evidence of the accomplice. They were cautioned to scan, criticise, scrutinize and weigh cautiously the whole evidence, and if they came to the conclusion that the prisoner, beyond a reasonable doubt, was guilty, they should convict. The charge accorded with the settled rule in this State,. that a jury have the right to accept the evidence of an accomplice, and though it be contradicted by the prisoner, find the prisoner guilty. (.Raskins v. People, 16 N. Y., 344; Frazer v. People, 54 Barb., 306; People v. Haynes, 55 Id., 450 ; People v. Pyle, 21 N. Y., 578 ; People v. La/wton, 56 Barb., 126 ; Li/ndsary v. People, 63 N. Y., 143.)”

      F. W. Gardner, for the plaintiff in error.

      Fra/nk Rice, District Attorney, for the people.

       Reported, Ante, p. 47.

   Opinion by

Hardin, J.;

Talcott, P. J., and Smith, J., concurred.

Judgment and conviction affirmed, and proceedings remitted to the Court of Sessions of Ontario county, with directions to enforce the same.


author: Smith, J.;

text:
    HENRY PICKARD, Respondent, v. JOSIAH YENCER, Appellant.

      When, a settlement and discontinuance of an action will he set aside as a fraud upon the attorney's lien for costs.

    Appeal from an order made at the Livingston Circuit and Special Term, setting aside a settlement, stipulation and an order of discontinuance entered in this action, on the ground that they were made in fraud of the lien of the plaintiff’s attorneys for his costs, and authorizing the said attorneys to enter a jxidgment against the defendant for their costs and disbursements in the action, and also from a judgment entered in pursuance of such order.
    The action was commenced in November, 1878, for an assault and battery. The defendant answered, setting up a general denial and a justification. On May 7, 1879, the plaintiff’s attorneys notified the defendant that they had a lien upon the cause of action for costs and. disbursements, and .that they would disregard any settlement of the suit made without their consent. On September 29, 1879, the plaintiff and defendant settled, the defendant paying $30 and taking from the plaintiff a written acknowledgment of the receipt of that sum in full of his claim, and an agreement that the defendant might enter an order of discontinuance, without costs to either party as against the other, oh filing the receipt and stipulation. An order of discontinuance was entered thereon, November 6. The plaintiff’s attorneys were not advised of these proceedings until after the commencement of the November Circuit in Livingston county, for which court they had noticed the cause and placed it on the calendar for trial. Upon an order to show cause, granted by the j udgé holding the Circuit, on affidavits showing the foregoing facts, and also the fact that the plaintiff was insolvent, the plaintiff’s attorneys moved for and obtained the order from which this appeal is taken.
    The court, at General Term, said: “ The settlement was properly held to have been in fraud of' the plaintiff’s attorneys, .it having been shown, without dispute, that the plaintiff was insolvent, and that the defendant had notice of the lien of the attorneys. (Frcmcis v. Wébb, 7 C. B., 781; Ten Broeck v. DeWitt, 10 Wend., 617 ; McDowell v. Second Avenue R. R. Co., 4 Bosw., 670.) Although the settlement was before judgment, yet as it was plainly in fraud of the attorneys, they were entitled to have it set aside to enable them to continue the action and recover their costs. (Rasqwm v. Knickerbocker Stage Co., 12 Abh. Pr., 324.) Such was the well established rule prior to the amendment in 1879 of section 66 of the Code of Civil Procedure, and it is therefore unnecessary to consider the position of the appellant’s counsel, based upon that statute, inasmuch as the amendment referred to was adopted since the action was commenced, and is inapplicable to the case. So much of the order appealed from as sets aside the settlement, stipulation and order of discontinuance, so far as they affect the lien of the attorneys, is therefore proper, and should be affirmed.
    “ But the plaintiff’s attorneys seem to have supposed that the order appealed from authorized them to enter judgment for- their costs without bringing the cause to trial, and that is what they have, in fact, done. In this, their practice has been irregular. Their remedy, on setting aside the settlement, so far as it affected their rights, was to prosecute the action, in the name of their client, to trial and final judgment. (Talcott v. Bronson, 4 Paige, 501.) The defendant is not liable for costs except upon a recovery, by the plaintiff, of an amount sufficient to carry costs under the statute. It is by no means clear that the order was intended to authorize the attorneys to enter judgment without bringing the cause to trial, but as they have given it that construction, they cannot complain if it is so construed on this appeal. The judgment is irregular, and should be set aside, and so much' of the order as authorizes it should be modified so as to permit the plaintiff’s attorneys to proceed with the suit, in the name of their client, notwithstanding the settlement and stipulation.”

      E. W. Packard, attorney, and James Wood, counsel, for the appellant.

      F. G. Peak, for the respondent.
   Opinion by

Smith, J.;

Talcott, P. J., and Hardin, J., concurred.

Judgment set aside and order modified so as to permit the plaintiff’s attorneys to proceed with the suit in the name of their client, notwithstanding the settlement and stipulation, without costs of this appeal to either party as against the other.


author: Hardin, J.

text:
    THOMAS B. HOWELL, Appellant, v. ORLANDO HOWELL and others, Respondents.
   Decree of surrogate affirmed, with costs of the appeal to be paid by the appellants personally, and not out of the estate.

Opinion by

Hardin, J.


text:
    THE TOWN OF SPRINGPORT, Respondent, v. THE TEUTONIA SAVINGS BANK and JAMES D. FISH, its Receiver, Appellants. THE SAME, Respondent, v. THE GERMAN UPTOWN SAVINGS BANK and HERMAN UHL, its Receiver, Appellants. THE SAME, Respondent, v. THE FRANKLIN SAVINGS BANK, Appellant.
   Judgments modified by striking out the costs awarded, and, as so modified^ affirmed, without costs of this appeal to either party, on the opinion of the referee.

Mem. by

Hardin, J.


text:
    GEORGE W. HICKS and others, Respondents, v. SPENCER CLARK, Appellant.
   Judgment and order affirmed.

Opinion by

Hardin, J.


text:
    JOSIAH C. MILLER, Respondent, v. OGILVIE L. SHELDON, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Hardin, J.


text:
    LIBBIE HECHLER, Appellant, v. THE ALLEMANIA LODGE, etc., Respondent. ELIZA WAGNER, Respondent, v. SAME, Appellant.
   Judgment affirmed, on opinion of Merwin, J., at the Circuit, in the case of Wagner.

The like decision.


author: Hardin, J

text:
    W. HUDSON STEPHENS, as Executor, etc., of ABEL D. BENT, deceased, Respondent, v. RUFUS B. WAITE, Appellant.
   Judgment reversed and new trial ordered before another referee, with costs to abide the event, unless plaintiff stipulates to deduct from the judgment the sum of $6.72, with interest from September 4, 1878, and the sum of $70, with interest from November 30, 1874, in which case the judgment so reduced is affirmed, without costs of this appeal to either party.

Opinion by

Hardin, J


text:
    ALIDA J. DAVIS and MOSES C. DAVIS, Appellants, v. WILLIAM S. CLARK, as Executor, etc., of LAUREN B. GODFREY, deceased, Respondent.
   Decree of the surrogate affirmed, with costs of the appeal to be paid by the appellants.


text:
    JOHN B. HAHN and others, as Survivors, etc., Respondents, v. JOHN MAUDER, Appellant.
   Judgment affirmed.

Mem. by

Smith, J.


text:
    In the Matter of the Application of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY to Acquire Land, etc., v. JOSEPH FELLOWS and others.
   Order appealed from affirmed, with $10 costs of appeal, and disbursements.

Hardin, J., taking no part.


text:
    CATHARINE FORSYTH and others, Appellants, v. LAURA McCALL, Respondent.
   Judgment affirmed on report of Hon. Addison Gardiner, referee.


author: Talcott, P. J.,.

text:
    JOSEPH BARTON, Jr., and others, Appellants, v. THE CITY OF SYRACUSE, Respondent.
   Judgment and order affirmed.

Opinion by

Talcott, P. J.,.

Hardin,, J., not sitting.


text:
    ANSON LAMBERSON, Appellant, v. HARVEY M. BANKS, Respondent.
   Judgment affirmed, on the opinion of the referee.


text:
    AMY A. LAMBERSON, Appellant, v. HARVEY M. BANKS, Respondent.
   The like decision.


text:
    DANIEL W. BROWN, Respondent, v. J. PAUL GRUPP and PETER VIDVARD, Appellants.
   Judgment affirmed.

Opinion by

Talcott, P. J.


text:
    ANSON M. BAKER, Respondent, v. THE HOME LIFE INSURANCE COMPANY, Appellant.
   Judgment and order affirmed.

Opinion by

Hardin, J.


text:
    LYMAN H. GRANGER, Respondent, v. HENRY H. CRAIG and others, Appellants.
   Judgmei >' affirmed, with «costs, on opinion of referee and mem. of

Talcott, P. J.


author: Smith', J.;

text:
    ELIZA M. RIDER, Respondent, v. FREDERICK B. MILLER, Appellant.
   Judgment affirmed, with costs of the appeal.

Opinion by

Smith', J.;

Hardin, J., not sitting.


text:
    NATHAN JOHNSTON, Respondent, v. ABRAM A. BARNES and others, Appellants.
   Judgment reversed, and new trial ordered before another referee, costs to abide event.

Opinion by

Talcott, P. J.


text:
    ABRAM A. BARNES, Appellant, v. NATHAN JOHNSTON and others, Respondents.
   The like decision in all respects.


text:
    ROBERT DUNLOP, Respondent, v. EGBERT I. AVERY, Appellant, Impleaded, etc.
   Case declined to be considered, and sent back for correction, because it does not contain the opinion of the referee, or an affidavit, etc., as required by Eule 41.


text:
    MAURICE LEYDEN, Respondent, v. CHARLES A. DAVIS, Appellant.
   Order affirmed, with $10 costs, and disbursements, on opinion at Special Term. _


text:
    ALVAH KELLOGG, Appellant, v. JOHN S. CLARK and others, Administrators, etc., Respondents.
   Motion to dismiss appeal denied, with $10 costs.


text:
    JACOB GINTHER, Respondent, v. HENRY E. RICHMOND, Appellant.
   Motion for leave to appeal to the Court of Appeals granted, on the ground that a question of law is involved, which ought to be reviewed by that court.


text:
    RUSSELL G. ARNOLD, Administrator, etc., Appellant, v. PETER B. LADD and another, Respondents.
   Motion to dismiss appeal granted, with $10 costs. Held, that as the proper time for the surrogate to adjudge whether a debt exists in a proceeding to sell real estate for payment of debts is after the return of the order' to show cause, the order itself is in the nature of a citation to bring in the proper parties, and is not appealable.


text:
    R. DE WITT MANN, Respondent, v. WILLIAM D. MILNE, Appellant.
   So much of the order appealed from as gives defendant leave to amend his answer affirmed ; and so much as strikes out the second and third counts of the answer, with costs, reversed, with leave to plaintiff to demur to said counts; no costs of this appeal to either party. Held, that the remedy of the plaintiff, the counts being hypothetical, is by demurrer, and not by motion to strike out. (McCormick v. Pickering, 4 Comst., 276 ; Conger v. Johnston, 2 Den., 96 ; Code of Civ. Pro., §§ 494, 783.)


text:
    ADOLPH G. MARSCHULTZ and another, Appellants, v. CORNELIUS McGREERY, Respondent.
   Declined to be heard, because the papers submitted contain no notice of appeal to this court, and no case signed or settled by the referee or ordered to be filed.


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    ANSON WELLS, Respondent, v. WATERTOWN FIRE INSURANCE COMPANY, Appellant.
   This being moved as a preferred cause under subdivision 8 of section 791 of the Code of Civil Procedure, and it appearing that the action was brought upon a policy of insurance against loss by

fire, Held, that it is not entitled to preference.

Hardin, J., not sitting.

Studwell v. Charter Oak Ins. Co. (19 Hun, 127), not concurred in.


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    HORACE B. CLAFLIN and others, Appellants, v. HUGH H. WILLIAMS, Respondent.
   Order of Special Term affirmed, with $10 costs, and disbursements.


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    PENELOPE CHAPPELL, Appellant, v. SUSANNA HUEBENER, Respondent.
   Order appealed from affirmed, with $10 costs, and disbursements.


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    ANSON WELLS, Respondent, v. WATERTOWN FIRE INSURANCE COMPANY, Appellant.
   Judgment affirmed,

Hardin, J., not sitting.


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    WILLIAM D. MURRAY and another, Respondents, v. BERTHA REDELL, Appellant.
   Judgment and order reversed, and case remitted to the Superior Court of Buffalo for a new trial, costs to abide event. Held, that Redell having adopted the minor child of his wife by a former husband and held him out to the world as his own son, the wife was not liable for the minor’s support: and there being no evidence that the wife expressly charged her separate estate with the payment of the plaintiffs’ claim, and none from which such a charge can be implied, the wife is not liable.


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    FRANKLIN W. CAPWELL, Appellant, v. CHARLES E. FISH, Assignee, etc., Respondent, Impleaded, etc.
   Judgment affirmed, with costs of the appeal on the opinion of the. trial judge. Held, that the judgment dismissing the complaint is not a bar to the plaintiff’s right to enforce his lien on the policy, nor to his right to a reimbursement out of the money received by the assignee under the policy.

Smith, J., not sitting.


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    CAROLINE BENNETT, Respondent, v. LUCINDA A. PALMER and another, Appellants.
   Judgment reversed, and new trial ordered in Monroe County Court, costs to abide event. Held, that the objection to the question at folio 178 of the case was erroneously overruled.


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    JAMES F. MANN, Receiver, etc., Respondent, v. JASON D. BOUTON, Appellant.
   Judgment and order affirmed, on authority of Bissell v Kellogg (60 Barb., 617).

Hardin, J., not sitting.


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    HENRY STEVENS, Appellant, v. THE BUFFALO AND AURORA PLANK ROAD COMPANY, Respondent.
   Judgment reversed, and new trial granted, costs to abide event. Held, that the evidence offered by the plaintiff of the declarations of the defendant’s superintendent respecting the condition of the road, and his directions to repair the same, was improperly excluded.


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    ALONZO C. FULLER, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
   Judgment and order reversed, and new trial ordered, costs to abide event. Held, that the objections taken to the. questions put to the witness Bradford at folios 588 and 589 of the printed case were erroneously overruled, and it cannot be said that the testimony elicited by said questions was not prejudicial to the defendant.

IIardin, J., not sitting.


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    JUGURTHA H. CARPENTER, Respondent, v. HENRY H. PHILLIPS, Trustee, etc., Appellant.
   Judgment reversed, and new trial ordered in the County Court of Oswego county, costs to abide event, unless plaintiff shall stipulate to reduce the judgment to the sum of $44.46, with interest from October 31, 1873, in which case the judgment as so reduced is affirmed, with costs of the appeal.


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    SARAH E. STEELE, Respondent, v. DAVID V. BENHAM, Sheriff, etc., Appellant.
   Judgment and order affirmed. Held, that the assignment and the delivery of the notes transferred the debt as well as the mortgage ; that upon the evidence it was proper to submit to the jury the question of the change of possession and the good faith of the mortgage; that the defendant, having converted the property, was liable to the plaintiff, notwithstanding the previous levy made by the constable; that the motive of the plaintiff in taking an assignment of the mortgage was immaterial, and.that some of the exceptions argued on the part of the appellant were well taken.


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    AZAIRAH WILSON, Respondent, v. THE CITY OF SYRACUSE, Appellant, Impleaded, etc.
   Judgment and order affirmed. Held, that the question of negligence and contributory negligence were properly submitted to the jury; that the stairway being an opening in the sidewalk, the duty of seeing that it was made safe by lighting or otherwise was upon the city (Bacon v. Boston, 3 Cush., 174; Sherman & Redf. on Negligence, §§ 385, 414); and that the offer to show the existence of other similar stairways in other parts of the city was.immaterial, no explanation accompanying the offer, to show the particular purpose for which the evidence was deemed competent.


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    JOSHUA J. GILBERT and another, Respondents, v. WILLIAM T. WHEELER and another, Administrators, etc., Appellants.
   Order affirmed, without costs.

Hardin, J., not sitting.


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    HIRAM CHADDOCK, Respondent, v. JOHN PANSY and others, Appellants.
   Judgment affirmed, with costs of the appeal.


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    JOSEPH H. LAWRENCE, Administrator, etc., Appellant, v. THE ÆTNA INSURANCE COMPANY, Respondent.
   The findings of the jury set aside, a new trial ordered, and the order appealed from vacated, without costs of the appeal to either party, on the ground that there has been a mistrial of the action, the record showing neither a general nor a special verdict. (Code of Civ. Pro., §§ 1186, 1187.)

Smith, J., not sitting.


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    HOBART B. CONE, as Receiver, etc., Respondent, v. HENRY HOFFMAN, Appellant.
   Order appealed from affirmed.


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    THE GROVER AND BAKER SEWING MACHINE COMPANY, Respondent, v. NANCY J. MAXSON, Appellant.
   Judgment affirmed, with costs of appeal.


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    GEORGE A. REYNOLDS, Respondent, v. ASHBEL W. RILEY, Appellant.
   Judgment affirmed.


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    JOSHUA WADLEY and another, Respondents, v. JOSEPH H. DAVIS, as Executor, etc., Appellant.
   Order appealed from affirmed, without costs to either party.

Hardin, J., taking no part.


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    STEPHEN DINGMAN, Respondent, v. WILLIAM S. RUGG, Appellant.
   Judgment and order reversed and new trial ordered, costs to abide event. Held, tlxat the testimony tending to show that the defendant was indemnified was immaterial and inadmissible, and it may have affected the defendant unfavorably.

Hardin, J., not sitting.


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    JOHN E. BARNUM, Appellant, v. FRANCIS W. GILBERT, Respondent.
   Judgment and order of Monroe County Court reversed, and a new trial granted in that court, costs to abide event. Held, that the_case should have been submitted to the jury.'


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    MARGARET VALIQUETTE, Respondent, v. THE CITY OF BUFFALO, Appellant.
   Order denying new trial affirmed.


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    MOSES MURPHY, as Administrator, etc., Respondent, v. DENNIS HAYES, Appellant.
   Judgment and order affirmed.


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    POLLY GRAVES, Respondent, v. WELCOME WHITE and another, Appellants.
   Judgment affirmed.

Opinion by

Talcott, P. J.


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    EARLE S. BATCHELLER, Respondent, v. JOEL A. HALLADAY and others, Appellants.
   Order denying motion to set aside sale, etc., affirmed, with $10 costs, and disbursements.

Hardin, J., not voting.


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    EARLE S. BATCHELLER, Respondent, v. JOEL A. HALLADAY and others, Appellants.
   Order of Lewis County Court denying motion to set aside the judgment for deficiency herein, the execution issued thereon and the proceedings to enforce the same reversed, with $10 costs, and disbursements; and said motion granted, with $10 costs, and the proceedings remitted to said court with directions to grant said motion.


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    NEWTON F. PARKS, Respondent, v. WILLIAM E. HENRY, Appellant.
   Judgment of the county court reversed, and that of the justice affirmed. Held, that the sale of a part of the mortgaged chattels by the mortgagor for commodities other than cash was in violation of the terms of the mortgage, and authorized the mortgagee to take possession of the property.


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    HENRY W. GREEN, Respondent, v. THOMAS EDGAR and others, Respondents.
   Judgment reversed, and new trial ordered before another referee, costs to abide event. Held, that a servant may be discharged by the master from his employment, provided a sufficient cause actually exists, whether the same was known to or assigned by the master at the time of the discharge or not; and that the special findings show that sufficient grounds for the discharge existed at the time of the discharge.


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    HENRY J. FORWARD and another, Appellants, v. THE BANK OF BATAVIA, Respondent.
   Declined to be considered, because of the want of a certificate showing that the papers submitted are copies of the papers used on the motion.


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    EMMA J. RADLEY, Respondent, v. J. FITCH WALKER, Appellant.
   Order appealed from affirmed, with $10 costs, and disbursements. Beach v. Mayor (14 Hun, 79); Chapin v. Thompson (16 Id., 53), followed. The county judge had power to allow costs on vacating the order. (Code of Oiv. Pro., § 315.)


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    THE UNION HOTEL COMPANY, Respondent, v. THOMPSON HERSEE, Appellant.
   Order appealed from affirmed, with $10 costs, and disbursements.

Talcott, P. J., not sitting.

(Laws of 1832, ch. 295, § 1.)