author: Barnard, P. J.:

text:
    CATHARINE L. PHIPPS, Appellant, v. THOMAS D. CARMAN, Respondent.

      Mffht to terminate reference — referee—must fih his report with cleric or actually deliver it to a party, within sixty days — Gode of Oivil Procedure, § 1019.
    Under section 1019 of the-Code of Civil Procedure either party may terminate the reference, unless the referee has, within sixty days from the time when the-cause was finally submitted to him, made his report and filed the same with the cleric, or delivered it to the attorney for one of the parties; it is no longer sufficient for him to have made his report and notified the party in whose favor it was made that it was ready for delivery.

      Waters v. Shepherd, 14 Hun, 223, — overruled.
    Appeal from an order made at Special Term, directing the report of a referee herein to be taken from the files, -and vacating a-judgment entered thereon.
    The motion was made upon the ground that the said reference had been terminated by the service óf a notice on plaintiff’s attorney.
    This cause was submitted about June 1,1879, and on the 28th of same month the referee completed his report, and the same day give a written notice to George P. Avery, the attorney for the plaintiff, and Joseph L. Sackett, the attorney for the defendant, that Ms report was completed and ready for delivery upon the payment of Ms fees. On October 17, after said notice had been given, the defendant’s attorney gave to plaintiff’s attorney notice that he elected to end the said reference.
    The referee’s report was filed May 28, 1880, and a judgment entered thereon on June 11, 1880.

      Geo. P. Avery, for the appellant.

      P. P. Barnard, for the respondent.
   Barnard, P. J.:

The binding force of Waters v. Shepherd (14 Hun, 223) is destroyed by the Code, as altered since that decision was made.. As the Code stood when that ease was decided, it was necessary for the referee to make and deliver a report within sixty days after the' case was submitted, or the reference could be vacated.

The referee made his report, and notified the party in whose favor it was made, that it was ready for delivery. It was thought that the referee had delivered his report so far as to be entitled to recover his fees, when he offered the report to the attorney of the 'party in whose favor it was made. •

■ By section 1019 of the Code of Civil Procedure, as changed, the report may be delivered to ■ the attorney for one of the parties, or filed with the clerk within sixty days. The referee will not now have done his duty under this section, unless ho delivers his report to the clerk to be filed, in case' it is . not taken up by one. of the attorneys within the sixty days.

The order must be affirmed, with costs and disbursements.

Dykman, J., concurred; Gilbert, J., not sitting.

Ordered affirmed, with costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    JOSEPH B. PHILSON, as Executor, &c., of CATHARINE MOORE, Deceased, Respondent, v. JAMES MOORE and others, Appellants.

      Will — effect of a sale by the testator of real estate specifically devised — a bequest to a charitable association is good, if it be incorporated before the money is payable.

    Where a testatrix, after making a will, devising certain specific parcels of real estate, then owned by her, to her executors, upon certain trusts therein declared, and for the payment of certain legacies, sells a portion of the said real estate, and converts the proceeds thereof into personal property, such acts amount to a partial ademption of the devise, and the court has no power to substitute the personal property for the real estate devised for the payment of the legacies.
    Where a devise is made to a charitable incorporation, authorized to take it, in ■ trust for an association, then unincorporated, it is sufficient if the latter be incorporated before the money becomes payable, although it was an unincorporated voluntary association only, at the time of the testator’s death.
    Appeal from a judgment entered upon tbe trial of this action by the court at Special Term.
    .The action was brought to obtain a judicial construction of the will of one Catharine Moore, who died on January 11, 1879. Her will, which was dated July 7, 1869, provided, among other things :
    “ I give and devise to my executors hereinafter nominated' and appointed all those certain lots, pieces or parcels of land, situated and described as follows, to wit: [then follows tbe description of three parcels of real estate.]
    “ And also any and all other real estate, wherever tbe same may be situated, of which I may be the owner at the time of my death, together with all and singular the tenements, hereditaments, and appurtenances -thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. To have and to hold the same in trust, and for the trusts, uses, and purposes hereinafter particularly mentioned, hereby giving and granting full power and authority to my said executors, or tlieir survivors or survivor, to sell the said real estate, or any part or parts thereof, at public auction or private sale, and at such time and place, or times and places, and upon such terms as they shall deem expedient. And I direct that, in case of the sale of said real estate, or any-part thereof, during the lifetime of my. husband James Moore, they, my said executors, shall invest the proceeds of such sale or sales' upon good and sufficient securities, and use and apply the income thereof as hereinafter provided. And' the trusts, uses, and purposes for and upon which I give and •devise the'said'real'estate to my said executors are as follows: [To apply the rents and profits thereof to the use of her husband during his life.] . .■ . Second. Upon the death of my said husband, my said executors shall sell and dispose of the said real estate, or so much thereof as shall not have been already sold, and shall convert the' same, and any and all other property or securities which they may hold, into money, and use and apply and pay the same as follows: [To the payment of certain specific legacies.] . . . 11th. The rest, residue, and remainder thereof, and the rest, residue, and remainder of any and all property which may remain in the hands of my said executors after the payments and investments as herein-before directed, they, my said exectitors, shall pay to the said American Tract Society, to be applied to the charitable uses and purposes of said society.”
    December 18, 1878, she executed a codicil by which she revoked some of the bequests contained in her will, and made others ; and directed that “ Ni/nih. The rest, residue and remainder thereof, and the rest,- residue and remainder of any and all property which may remain in the hands of my said executors after the payments and investments as hereinbefore directed, they, my said executors,-shall, pay to the Board of Foreign Missions of the Presbyterian Church in the United States of America, to be held by them in trust for the Home and Foreign Missionary Society of the ■ Presbyterian Church in the city of Brooklyn, and to be used in promoting the cause of Foreign Missions.”
    The Board of Foreign Missions was duly incorporated before the testatrix’s death. The Home and Foreign Missionary Society was at the time of her death a voluntary association, but thereafter, and before the death of the husband, was incorporated. After the making of the will, the testatrix sold one of the pieces of real estate, specifically devised, and invested the proceeds in personal property. = At tho time of her death, the real estate remaining unsold, was of but little value, and entirely insufficient for the payment of the legacies. Tho court held that none of the legacies were payable until the death of her husband, and then only out of the proceeds of the said real estate.
    ■ WilKamson, Reynolds cíe. Heinrichs, for James Moore, appellant.

      Samuel St. J.. HeGutchen, for the appellants, the infant defendants, Peebles.

      C. E. Tracy, for the American Bible Society, appellant.

      G. B. Alexander, for the Trustees of Princeton Seminary, and-the Presbyterian Board of Belief.
    - Jos. A. Burr, Jr., for the respondent.
   Barnard, P. J.:

By tho terms of the will it is plain that only the land was devised in trust, which testatrix then owned. The words are exclusive in their nature. The devise is of “ all those certain three lots, pieces or parcels of land, situate and described as follows, to wit.”

The accurate description is given by metes and bounds in the will,- of the subject of-the devise. The provision for the sale of the lands by tho executors during the life of testatrix’s husband, James Moore, who had the life estate in the trust fund, and the investment of the proceeds, explains the uso of language as to the estate after the husband’s death. -The “any and all other property or securities which • they may hold ” could include no other property than the real estate unsold, and the proceeds of such real estate as had been sold by tho executors, and which they were directed to invest.

Tho codicil makes no change in the will. By it tho testatrix revoked certain legacies given by the will, and inserted others. After making all the changes the codicil proceeds to bequeath: .“ The rest, residue and remainder of any and all property which may remain in the hands of my said executor.” . .

■ These words do not import that any other property shall be the 'subject of the bequest than the land devised by the will, and the proceeds of the land sold as therein provided. By the.. word “thereof” is meant the land or such part as is unsold, and the following words refer to the'proceeds of the lands so •sold.

The design of the testatrix is clear under the proven facts.

At the time the will was made the testatrix only owned the lands devised in the will. She, before her death, sold a large portion of the lands, and the proceeds became personal estate.

The law is well settled th^t if a testatrix devise real estate, and sell the same before the will takes effect, the proceeds of the will become personal estate, and no court can substitute the money received by testatrix for the land devised. (Beck v. McGillis, 9 Barb., 35 ; Vandemark v. Vandemark, 26 Id., 416; McNaughton v. McNaughton, 34 N. Y., 201.) If this be the correct view of the meaning of the will and codicil, none of .the legacies are payable until after James Moore’s death.

I think the bequest to the Board of Foreign Missions, in trust for the Home and Foreign Mission’ Society of Brooklyn, good. The life estate was good in all the lands in the testatrix’s, husband for his life. When the remainder became payable there was a good and valid corporation to take the-bequest of the remainder. It is like a bequest to an unborn child. Such child will take, if in being at the time for the distribution.

Judgment affirmed, with costs to respondent out of trust estate,

Dykman, J., concurred; Gilbert, J., not sitting,

Judgment affirmed, with costs to the respondent, the executor, out of the estate.


text:
    EUGENE ZELLENKOFF, Respondent, v. JOHN COLLINS and others, Appellants.

      Injunction — when a party will he restrained from, talcing a letter from, the post-office — when additional papers .may he used to- sustain the order.
    The complaint alleged that in pursuance of a conspiracy between the defendants, two of them had, by fraudulent representations, procured from the plaintiff, in Belgium, $17,000, and transmitted the same by the mail in registered letters, addressed to the other defendants in Brooklyn and New- ' York; that these letters, with their contents, were at the-post-office in. Brooklyn and New York, and that the defendants, who,were irresponsible,, had made demands upon the post-masters therefor.

      Held, that an injunction, restraining the defendants from 'demanding or receiving any of the said registered letters, was properly granted.
    The complaint and the affidavit upon which the order was made were verified ' by the Belgian consul in New York, and. all of the allegations thereof were -upon information and belief. Upon the hearing of a motion to vacate .the injunction, which was made upon the original papers only, the plaint- . iff was allowed to read depositions taken in Belgium, they being the sources from which the consul had derived his information and formed his belief ■ as to the facts set forth in the complaint and affidavit.Held, no error.
    Appeal from an order, made at Special Term, continuing a preliminary injunction granted herein.
    . The complaint, which was made upon information and belief,, alleged that the defendants had conspired and combined together to defraud the plaintiff out of large sums of money, and that in pursuance of such conspiracy two of them- had fraudulently obtained from him some $17,000 in Belgium, which they had mailed in several registered letters addressed to the other defendants ; that the letters had not yet been delivered, but were still in the custody of the post-office authorities in -New York and Brooklyn ; that the letters had been demanded -by defendants and must soon be delivered to them, unless prevented, in which case the conspiracy will have been consummated; and, as defendants are irresponsible, the plaintiff finally prevented from recovering his property. Upon this coinplaint, together with an affidavit made upon information and belief, rehearsing the stoiy of the fraud, the court below granted plaintiff’s .prayer for an order enjoining defendants from.demanding or receiving any of said registered letters.
    A motion was mádo tó vacate,the injunction upon the papers on which it was granted. On this motion the plaintiff read certain depositions, taken in Belgium, which were the sources'of the. information .upon which the. verification of the complaint and the affidavit was made.

      Roger A. Pryor, for the appellants.
    All the allegations of the complaint being on information and belief, and the facts stated being necessarily hearsay, thfe complaint is insufficient to support the injunction'. (Crocker v. Baker, 3 Abb. Pr., 182 ; Ramsey v. Railroad Co., 7 Abb. Pr., N. S., 156, 186; Bank v. Skinner, 9 Paige, 305 ; Bostwick: v. Eton, 25 IIow. Pr., 362; Waddell v. B-ruen, 4 Edw. Ch., 698 ; Barnard v. Kobbe, 54 N. Y., 516, 520, 521; Ratean v. Bernard, 12 IIow. Pr., 464; Pomeroy v. Ilinclmarch,-5 Id., 437 ; Pidgeon v. Oatman, 3 Bobt., 706 ; Jewett v. Kllen, 3 IIow.. Pr:, 129 ; Yates v. North, 44 N. Y., 274 ; People y. Comm,on Council, 77 Id., 511.) It was error in the court • to permit plaintiff to introduce additional evidence in support of the injunction. (Code Civ. Pro., § 627; Yates v. North, 44 N. Y., '274 ; - Childs v. Fox, 18 Abb. Pr., 112'; Powell v. Clark, 5 Id., 70; Blackford v. Railroad Co., 7’ Id., 322.) It is entirely obvious on the face of" the complaint, that the plaintiff has an adequate remedy by an action at law for 'damages; and when that-is the case an injunction never issues. (Balcom v. Judien, 22 Hun, 349 ; Savage v. Aden, 54 N. Y., 458 ; Gallatin v. Bank, 16 How. Pr., 252, 255 ; Agate v. Lowenbein, 4 Daly, 62 ; Murray v. Knapp, 62 Barb., 566 ; Thompson v. Matthews, 2 Edw. Oh., 273 ;‘ Mallelt v. Bank, 1 Barb., 217, and cases supra; Hilliard on Injunctions, p. 39, § 74; p. 281, § 3 ; Jeremy Equity, b. 3, ch. 2, § 1; Adams Equity, ch. 6, m. p. 207; 2 Story Eq., § 928, et seq.; Blake v. Brooklyn, 26 Barb., 301; West 'Point v. Reymert, 45 N. Y., 705, and cases supra.) An allegation of the insolvency of the defendants is in-" sufficient to authorize injunctive relief. (.Murray v. Knapp, 62 Barb., 566 ; Burch v. Kavanagh, 12 Abb. Pr., N. S., 411; Neple v. Reese, 19 Id., 240 ; Pomeroy v. White, 5. IIow. Pr., 437.) The post-office is a. branch of the executive department of the Federal Government. (1 Kent Comm., m. p. 271, note 1; U. S. Const., art. 1 § 8; 3 Story Const., ch. 18, p. 22, et seq.; Ex parte- Jackson, 6 Otto, 732 ; Teal v. Felton, 1 N. Y., 53712 IIow. U. S., 288; U. S. Stat. at L., §§ 3890, 3891, 3892, 3936, 3938.) The post-office being a department of the Federal executive, and its operations regulated exclusively by Federal authority, it results that the State judiciary is incompetent either to intercept the receipt of a letter from the United States mail by the person to whom it is directed, or to compel its delivery to another. (McCullough v. Maryland, 4 Wheat., 316; Weston v. Charleston, 2 Pet., 449 ; Dobbins v. Commissioners, 16 Id., 435 ; Collector v. Day, 11 Wall., 113; Sturgis v. Crowinnsheild, 4 Wheat., 193; llailroad Co. v. liasen, 5 Otto, 465, 471; Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat., 190; Nat. Bank v. Com., 9 Wall., 353, 362; Marshall, Ch. J., 4 Wheat., 332 ; 2 Pet., 466; Chase, Ch. J., in State v. Johnson, 4 Wall., 500; Rawle on Const., 103 ; Brown v. Maryland, 12 Wheat., 419 ; Weltonsr. State, 1 Otto, 275; Henderson v. Mayor, 2 Id., 259 ; llailroad Co. v. liasen, 5 Id., 465 ; Chy Lwng v. Freeman, 2 Id., 275; Case of State Freight Tax, 15 Wall., 232; Ward v. Maryland, 12 Id., 418; Fry v. State, 3.0 Am. R., 238, 247.)

      Paul Fuller, for the respondent.
   Barnard, P. J.:

The injunction order does not enjoin the officers of the government. It operates only upon the party enjoined. The postmaster is left free to deliver letters, but a party who has been deprived of property may reclaim it, and if it be in a letter addressed to one who cannot, as against the sender, rightly take it, he may be enjoined from receiving it until it can be determined which is entitled to the property in the letter. In the case presented the defendants have acquired by fraud large sums of money from the plaintiff. These sums are inclosed in letters registered and addressed to defendants, or some of them, and sent through the post-office and not yet delivered. The defendants are of no pecuniary responsibility. There is a clear case for equitable interference by injunction ; without it the plaintiff will be cheated out of property not yet delivered. > ' •

It was competent for the judge to permit the reading of the deposition of E. Zellenkoff and others, taken in Belgium, upon the motion to vacate the injunction. The complaint was wholly upon information and belief, and verified by the Belgian consul. ■'.There is no denial made by the defendants or either of them. The ; motion to vacate was made upon the papers only upon which the injunction was granted. In furtherance of justice it was proper to read the sources of information upon which the counsel formed his belief, that the complaint ivas trae.

Order affirmed, with costs and disbursements.

Gilbert and Dykman, JJ., concurred.

Order continuing injunction affirmed, with costs and disbursements.


text:
    LEOPOLD KNUPFLE, as Administrator, &c. of JACOB KNUPFLE, Deceased, Respondent, v. THE KNICKERBOCKER ICE COMPANY, Appellant.

      Negligence — when the question as to the contributory negligence of a child is to be passed upon by the jury — admissibility in evidence of a city ordinance rendering an act complained of.\ illegal.

    On the morning of November 10, 1879, one of the defendant’s employees drove an ice wagon belonging to it in front of a house in Atlantic avenue, Brooklyn, delivered some ice there, and then went into an adjoining store to see about buying a bird for himself, leaving the horses untied and unattended. YVhile he was in the store, the intestate, a boy about five years old, was drawn along the sidewalk, in a little wagon, by a boy of about his own age, who, when lie came opposite to the cart, let go of the tongue of the wagon, whereby the deceased was thrown behind the feet of the mules, who started off, drawing the hind wheels of the cart over his body, occasioning injuries from which he died.
    In an action to recover damages for his negligent killing, — Held, that the evidence was sufficient to sustain a verdict in favor of the plaintiff.
    Upon the trial the plaintiff was allowed, against the defendant’s objection and exception, to introduce in evidence an ordinance of the city of Brooklyn, making it unlawful for a team to stand in Iho street without a person in charge or without being secured to a tying post.

      Held, no error.
    Appeal- from a judgment in favor of the plaintiff, entered xipon the verdict of a jury, and 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 resulting from the death of Jacob Knupfie, the plaintiff’s intestate, through the alleged negligence of the defendants. Edward McDonald was in the employment of the defendants, as driver of an ice wagon, in the city of Brooklyn. Ilis duties were to get up his team in the morning, go to the defendant’s depot, get a load of ice, take it to his route, serve it, and then go' back and wait for further orders. On the morning of November 10,1879, he left the defendant’s depot, at Fulton Ferry, with a wagon partially loaded with ice, drawn by a span of mules, and wont over his route serving this ice until he reached a point on Atlantic avenue, near Nevins street, where he had a customer, lie finished what he had to do at this place, and then drove to No. 412 Atlantic avenue, where he had another customer. As ho drove up in front of No. 412, he stopped 1ns mules, drew them back so that the traces were slack, tied the reins fast to a post on the wagon back of the seat, in such a manner that the mules could not go ahead, except they drew the wagon and load by the bits. lie then went into No. 412, ascertained what ice was wanted there, served it, and then went back to and put his tongs upon the wagon. He then left his mules and wagon in the same position, and went next door (No. 410) to see about a bird for- himself, without the knowledge or authority of the defendants. lie stood about a foot and a half within this store, where he could see his mules, and distant from them the width of the sidewalk, lie had been standing in that position three or four minutes when George Wcidig, a boy five years of age, came running down the sidewalk in the same direction that the mules were headed, drawing a toy wagon, in which the deceased, who was also five years of age, was seated. As the boy Weidig got opposite the ice wagon, he let the tongue of the little wagon drop on the . sidewalk, and its momentum carried it off the sidewalk,-between the front wheels of the ice wagon and the mules,' and up against their heels. This made the mules restive. They started ahead, añd'the hind wheel of the wagon passed over the deceased and injured him so that he died shortly afterwards.

      Maday & Mudge, for the appellant.

      'William G. Ooohe, for the respondent.
   Barnard, P. J.:

' The evidence of negligence upon the part-of defendant’s dri ver 'is sufficient to sustain the verdict. A team of mules attached to a 'heavy ice wagon, was left untied and unattended in the street of the city of Brooklyn. The driver was engaged in the delivery of ice for defendant, but had for the moment entered a house to see About a bird for himself. This deviation did not release the company from the act of leaving the mules untied and unattended. :They were so left while the driver was engaged in his proper business. No contributory negligence was as matter of law Attributable to the deceased child. It was a question for the jury, under proper instructions.from the court. The evidence tended to show that while the mules were standing in the street, the deceased, a' hoy of four or five years of age, was in a small wagon being drawn by a boy of about his own age, on the sidewalk. The wagon -with deceased ran under the wagon of defendant, between the - mules and the forward wheels of the ice wagon. The mules started and run over the boy in the small wagon and killed him. The jury were told by the judge that the children had no'right to play in the middle of the street, or -thrust themselves under the feet ’ of horsés. Therefore, if this accident was caused in your judgment by this child being thrust against the heels of the mules, then, although he was not guilty of any negligence, it will relieve the defendants from the imputation of having caused the accident by their negligence.” This was quite as favorable to the defendants as they were legally entitled to have charged.

It is very certain that, if a person had been present, or if the mules had been tied no accident would have happened. The mules did not run away. The children had the right to be in the street. They have not the capacity to protect themselves like persons of mature judgment, and the defendant was bound to furnish proper care and prudence for their protection.

There is no force in the exception to the admission of the city ordinance, requiring all teams to be securely tied or to have a person in charge. Such evidence is always admissible on the question of negligence.

The court charged the jury that “ the ordinance adds very little to what would' have been the rule without it; namely, that it is-negligence to leave a horse untied or not in charge of some one, in the public street. Whether there is an ordinance or not, the question, as I have said, is, whether these mules were left in such a way.”

Judgment should be affirmed, with costs.

Dykman, J., concurred; Gilbert, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


text:
    JAMES McWILLIAMS, as Executor, &c., of VALENTINE S. SMITH, Deceased, Respondent, v. JOHN S. MORRELL, Appellant.

      Judgment — effect of — when it bars a second action.

    Tlie plaintiff’s testator sold to the defendant a bond and mortgage given to secure $1,000, for $900, received $500 in cash, the balance being retained by the defendant to secure the payment of unpaid taxes upon the mortgaged premises. Thereafter, in an action brought by the defendant to foreclose the mortgage the plaintiff’s testator answered, claiming to have a prior lien upon the proceeds of the sale, to the extent of the $400; the judgment therein directed that the sum of $600, and interest, should be first paid out of the proceeds to the defendant, and then the sum of $400 to the plaintiff’s testator. Upon the sale the premises did not bring enough to pay the amount due to the defendant.
    In this action, brought by the plaintiff to recover the balance alleged to be clue upon the sale of the bond and mortgage, Held, that the judgment in the foreclosure suit finally settled the rights of all the parties thereto, and that this action could not be maintained.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom ■ the action was tried.
    Ths action was brought to recover $400, with interest, from December 11, 1877. The complaint alleged that the plaintiff’s testator, on December 11, 1875, sold' and assigned to the defendant a bond and mortgage made by one Leiclc; that defendant agreed to pay $900 therefor; that he had paid $500, leaving $400 due. The defendant by his answer denied this, and alleged that a loan was made of $500 on on the said bond and mortgage as security, and as a further defense set up a judgment of foreclosure in the County Court, as an estoppel.
    On the trial it was proved that the bond and mortgage were sold and assigned, and that the defendant- agreed to pay $900 therefor ; that he paid $500 on account, and held -back $400 to meet taxes. The defendant subsequently, paid for taxes $171.72; this, deducted from $400, left $238.28, which, with the interest agreed upon, made $295.55, and for this amount a verdict was directed.

      F. F. Doma, for the appellant.

      Domiel T. Walden, for the respondent.
   Barnard, P. J.:

" The facts proven do not entitle the plaintiff to recover the judgment ordered by the court. The facts are simple and uncontra-dieted. Plaintiff’s testator owned a mortgage for $1,000 ; he transferred it to defendant for an agreecl price of $900, and received $500. - The remainder was retained to secure payment of unpaid taxes upon the property. The taxes were not paid. Morrell, the defendant, foreclosed, claiming to recover the entire mortgage debt. The plaintiff’s intestate answered, averring that the $400 part Of the purchase-price of the mortgage was unpaid, and claimed a prior lien to that extent upon the proceeds of the sale. The court found that there was only due to Morrell, the plaintiff in the foreclosure action, the amount of $600, and that there was due to plaintiff’s testator the sum of $400 upon the same mortgage, and that Morrell was to be first paid the amount due him. Provision was made in the decree for a judgment for deficiency, both to plaintiff in the foreclosure suit (the present defendant) as well as for plaintiff’s testator against the mortgagor. There was no appeal from this judgment, and the property was sold. It did not bring enough to pay plaintiff’s testator, Smith, anything. The judgment finally settled the rights of the parties. The failure to pay the taxes by Smith entitled the defendant to retain the $400 and to hold the mortgage as security for the money advanced. It was equitable and just, under the circumstances, to provide for his payment for that sum first out of the proceeds. The taxes were still unpaid and on the property, and the assignee, Smith, preferred a sale under a decree which, should limit the defendant’s claim to the amount of the mortgage, less the $400, and which also entitled him, Smith, to the $400 out of the sale-money. It is,now too late to change these relations. Morrell bought the property, because his interest in it was limited, and he protected that. The plaintiff cannot now claim that his interest was greater than that established by the judgment to which his testator was a party.

Judgment reversed and new trial granted, costs to abide event.

Gilbert and Dykman, JJ., concurred.

Judgment and order denying new trial revere ed, and new trial granted, with costs to abide event.


author: Barnard, P. J.: Gilbert, J.:

text:
    PATRICK NICHOLS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Hvidence — when the general character of the deceased, for violence, may he proved on the trial of one charged with his miwrder.

    Nichols, the plaintiff in error, and one O’Connell, having had an altercation in a beer saloon, the latter struck Nichols and shoved him out of the saloon, and subsequently followed him some two hundred and fifty feet to the corner of a street, and again struck him. Nichols then ran home, calling for his knife, and stating that he would kill or fix O’Connell. Having procured a carving knife, he returned to the corner, where he and O’Connell instantly came together, and the latter was cut through the heart with the knife.
    Upon the trial of Nichols, the plaintiff in error, for murder, he testified that upon his return he was attacked by O’Connell, and used the knife in self-defense. He then, offered to show specific acts of violence committed by the deceased upon other occasions upon other people, and also to show the character of the deceased to be bad,'from general reputation for violence.

      Held, that the court properly excluded the evidence tending to prove specific acts of violence upon other occasions, but erred in excluding that which tended to show that the general character of the deceased for violence was bad.
    Writ of Error to the Court of Oyer and Terminer, of the county of RocHand, to review the conviction of the plaintiff in error, of murder.

      G. P. Hoffmcm, for the plaintiff in error.

      Alonso Wheeler, district-attorney, and G. H. Wmfield, for the defendants in, error.
   Barnard, P. J.:

There is no sufficient defect in the record to warrant a reversal of the judgment. In the recital which precedes the indictment, the judges of the Court of Oyer and Terminer state that the indictment was found at a Court of General Sessions held in Rock-land County. The recital states that the court was held before the county judge and two justices of sessions, and that, “ during the same term of the said Court of Sessions,” the indictment was sent for trial to the Court of Oyer and Terminer. It appears that the Statute Court, with its legal judges, was held when the indictment was found, and it is correctly designated in all the material parts of the return.

The bill of exceptions states that the indictment was found at the Court of Sessions. The use of the word General, in the recital, is merely a mistake, and does no injury. The order transferring the indictment to the Oyer does not appear in the record. It is stated to have been duly made and entered. No objection was made to it previous to, or upon the trial, and the court will not infer upon appeal that the trial was sent to the Oyer otherwise than by a legal order. The remaining questions arise upon exception to the rejection of evidence, offered by the prisoner upon the trial.

The indictment was for murder in the first degree. The prisoner was accused of causing the death of one Thomas O’Connell, by stabbing him with a knife. The evidence tended to show that the prisoner and O’Connell had a trifling difficulty in a beer saloon in Nyack, called the “ Alcove.”

That O’Connell then struck the prisoner and probably shoved him out of ■ the saloon. The prisoner went out and passed along the street some two hundred and fifty feet to the corner of Bond street. That very soon after, if not immediately, O’Connell came to the same corner, and then again struck the prisoner. The prisoner then ran home calling for his knife, and stating that' he would kill or fix the deceased. He got a carving knife and went back to the corner of Bond street, or near it, where the last blow was struck by O’Connell, and the two instantly came together, and O’Connell was cut through the heart with the knife, and died in two or three minutes. The prisoner testified that upon his return with the knife, he was immediately attacked by deceased and that he used the knife in self-defense. The prisoner offered to show specific acts of violence by deceased, upon other occasions to other people.

This was excluded. The prisoner also offered to prove the character of deceased to be bad from general reputation for violence. The evidence was excluded, and exceptions were taken to each ruling. As to the proof of specific acts on other occasions, that was properly rejected. The point was expressly adjudicated in Eggler v. People (56 N. Y., 642). The question of the admissibility of the evidence of the general character of the deceased, is one of great doubt. The question has never been directly passed upon by the Court of Appeals. The question first came up before that -court in People v. Lamb (2 Keyes, 371).

The prisoner in that case had been convicted of the murder of his wife. The defense seems to have been that the murder was committed in self-defense. The particular violence alleged against the deceased was that she threw a cover of an iron pot at her husband. The General Term reversed the conviction. Evidence of the general character of accused was in that case rejected, and the General Term probably gave such refusal as a reason for the reversal of the conviction. In the Court of Appeals, Judge Davies, in an elaborate opinion, held the rejection of the evidence right, but the judgment of reversal was affirmed by a majority of the court on different grounds.

In Eggler v. People (56 N. Y., 642), there was also a conviction for murder. In this case, at the trial, proof of the general character for violence of the deceased was received. The prisoner offered to show specific acts of violence in addition, which offer was rejected, and- the Court of Appeals held the rejection right. In Blake v. People (73 N. Y., 586), also a case of murder, the prisoner, by the cross-examination of one of the witnesses for the people, sought to prove that the deceased was a quarrelsome and dangerous man. The court refused to receive the testimony at that time. It was held by the Court of Appeals that the court committed no error in rejecting the evidence in that way; it being the introduction of a new subject as matter of defense, it was simply a question as to the order of proof, which was in the discretion of the coxn-t.” "While thus, it will be seen, there is no direct - decision upon the question, the weight of the authorities seems to call for the admission of the testimony in this case. In People v. Lamb Judge Davies recognizes an exception to the general rule that the character of the deceased is not a question to be raised upon trials for murder. There is no right given to kill any man because of his character. "When, however, the character of the deceased is a material fact to be considered in determining the guilt of the accused, it is to be received like other facts; and if such evidence is rejected improperly, then it furnishes, a case where all the evidence was not before the jury, and an improper rejection of evidence is ground for reversal. (People, v. Stokes, 53 N. Y., 164.) The prisoner has the right to have all competent evidence in his favor considered, and its rejection cannot be overlooked. In Lamb v. People Judge Davies classes among* the exceptions to the general rule that the character of deceased is not a subject of inquiry, cases where the assault was first commenced by deceased, and the claim of the prisoner is that the killing was in. self-defense. The evidence of the prisoner in this case is directly to this effect. It is no answer to the rejection of the evidence to say that the proof is very strong against the claim of the prisoner. The evidence, when received, would have been for the jury.

In Eggler v. People and in Blake v. People such proof was received upon the trial. In Lamb v. People it was refused, and the conviction was reversed by the General Term. It thus appears in cases like this that it has been customary to. receive the evidence, and the Court of Appeals have expressed no disapproval of the legality of the evidence.

Upon the whole case, therefore, the conviction should be reversed, and a new trial ordered in the Oyer and Terminer.

Dykman, J., concurred.

Gilbert, J.:

I can find no evidence which would have justified a verdict of justifiable or excusable homicide, and therefore think that the evidence offered of the violent character of the deceased was inadmissible. In other respects I concnr.

Judgment reversed, and new trial granted in the Oyer and Terminer in Rockland county.


text:
    CHRISTOPHER C. WATSON, Respondent, v. SAMUEL F. COWDREY and FRANK H. COWDREY, Appellants.

      Former judgment — when it does not bar a second action — measure of damages for-the conversion of abstracts of title.

    In an action brought by the Cowdreys against one Watson, to recover the-value of legal services rendered by the former, Watson set up as a counterclaim that the Cowdreys had retained possession of and ■ refused to surrender up certain abstracts of title, and searches belonging to him. Upon-the trial, upon Cowdrey’s objecting to the counter-claim, on the ground that it was founded upon a tort, and did not grow out of the same transaction upon which their claim was founded, the court, with the consent, o'f Watson, struck out the counter-claim, and thereafter a judgment was; rendered in that action in favor of Watson.
    This action was brought by Watson against the Cowdreys, to recover damages. for the conversion of the said abstracts.

      Held, that the former judgment was not a bar to the maintenance of this action, and that he was properly allowed to recover as damages the cost of procuring other searches, similar to those so detained.
    Appeal from a judgment of tbe County Court of Kings county, affirming a judgment of tbe justice’s court of the city of Brooklyn, in favor of tbe plaintiff. Tbe action was brought to recover damages for tbe conversion of certain searches and- abstracts of title-belonging to tbe plaintiff. Tbe defense was that tbe claim bad already been adjudicated upon in another action between tbe same-parties.
    It appeared that the defendants, claiming that tbe plaintiff was-indebted to them for legal services rendered in tbe examination of tbe title to a piece of real estate owned by tbe plaintiff, and on which it was alleged he desired to procure a loan, had brought an action to recover for such services. The plaintiff defended that, action, denying bis liability, and also setting up, as a counter-claim, the fact that the plaintiffs (now defendants) had retained possession of and refused to surrender his searches and abstract, and had, in fact, converted them to their own use. To this counter-claim a. reply was made, but on tbe trial the present defendants (plaintiffs-in that action) objected to any evidence being given to sustain theeounter-claim, on the ground that the matter alleged in the counterclaim was on a tort, and could not be tried along with a cause of action based on a contract. The court sustained that view of the case, ordered the counter-claim to be stricken out.
    This plaintiff, then the defendant, succeeded in that action.
    He then brought this suit for the conversion of his searches and abstract, and on the trial it was claimed that the proceedings had in the Supreme Court in the suit in which the present plaintiff was defendant, had barred this second suit.

      S. F. Cowdrey, for the appellant.

      Jesse Johnson, for the respondent.
   Barnard, P. J.:

The defense of former adjudication is not made out. The defendants brought an action for legal services against the present plaintiff in the. Supreme Court. The answer set up as a counterclaim that the present defendants had refused to deliver up to plaintiff searches belonging to him on demand.

On the trial in the Supreme Court proof of the conversion of these searches was excluded under objection by the defendants, the then plaintiffs: 1st, because it was a counter-claim for a tort; and, 3d, because it did not grow out of the same transaction from which the then plaintiff’s claim arose. The counsel for the present defendants consented to the withdrawal of the counter-claim, and the judge thereupon struck it out. The present claim was not litigated. It was not even pleaded, as the pleadings are those portions only which remained after the withdrawal of the counter-claim by consent and by the ruling of the court. The retention of the searches claimed in this action had no relevancy on the former action. If Watson owed the Cowdreys they could retain the papers until paid. The action for services determined, therefore, the question of conversion. The retention of the searches did not defeat the action for services.

The measure of damages was a proper one. The court allowed the exact costs of procuring another search similar to the one detained. The defendant’s wrongful act occasioned this loss to plaintiff, and the judgment only made reparation.

The judgment should be affirmed, with costs.

Gilbert and Dykman, JJ., concurred.

Judgment affirmed, with costs.


text:
    PATRICK O’KEEFE, Respondent, v. JACOB R. SHIPHERD, Appellant.

      Oosts — cannot be increased by the agreement of the attorneys.

    •Costs, in excess of the amounts allowed by law, cannot be taxed by the agreement of the attorneys for the parties to the action.
    Appeal from an order of the Queens County Court, upon an appeal from the decision of the county cleric on the taxation of the costs herein.
    This action originated in a justice’s court, where judgment was entered for plaintiff. On appeal to the County Court the follow-lowing stipulation was entered into :
    “ The amount at stake in this action being insignificant, and the •appeal having been taken only to secure a ruling upon an important question of law, and the case and issues having been settled by stipulation this day, it is hereby further stipulated that upon the entry of judgment disposing of said appeal, the prevailing party' shall have the right to include among taxable costs ten dollars costs •of motion for judgment.
    “JACOB R. SHIPHERD,

      Deft's Attn/.

      ■ “CHAS. SPIRO,

      Plff's Aity."

    Upon the appeal the judgment below was reversed, with costs and on September 18 the prevailing party filed with the clerk a bill of costs amounting to $38.01, inclusive of the $10 motion costs mentioned in the foregoing stipulation, and to this bill of costs was-annexed the following stipulation :
    “ It is hereby stipulated that the clerk may tax appellant’s costs’ against respondent at thirty-eight dollars and four cents, as total costs and disbursements, and may insert this amount in the final judgment.”
    Upon these stipulations the defendant moved for judgment for $38.04, but the clerk refused to insert this amount in the postea, rejecting the $10 motion costs and one other item of $3.50. From the clerk’s adjustment, in disregard of their stipulation, the parties-jointly appealed to the court. This joint appeal was disposed of by the filing of the following decision:

      “ Taxation of clerk affirmed except as to the item of $3.50. This, I think, is allowed the appellant by section 371 of the Code,, in relation to appeals from justices’ courts. Appellant is not entitled to $10 motion fee. Statute does not allow it. No motion is-necessary to be made, and I am not willing to sanction agreement where the object is solely to increase the costs at the expense of the client.”
    From this decision, refusing to the prevailing party the $10 motion costs, the defendant appealed.

      Jacob JR. Sliiphe^d, appellant, in person.

      CJJia/rles Spiro, for the respondent.
   Barnard, P. J.:

The only question presented by this appeal is, whether a greater amount of cost than is allowed by law can be taxed by the agreement of the attorneys? We think it cannot be done. The general rule is that costs, when allowed, shall be according to a fixed and definite rule.

The agreement in question was not an agreement touching the subject-matter of the litigation, but had reference to a matter collateral thereto, which is regulated by statute. (First National Bank v. Tamajo, 77 N. Y., 476.)

The county judge was entirely right in deciding that it was improper for a court to increase the cost of the litigation beyond the legal rate, under an. agreement made by the attorneys. The order ^should be affirmed, with costs and disbursements.

Gilbert and Dykman, JJ., concurred.

Order affirmed, with costs and disbursements.


author: Dykman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, ex rel. HENRY P. CLAUSEN, Respondent, v. THE NEWBURGH & SHAWANGUNK PLANK ROAD COMPANY, JAMES G. GRAHAM and others, Appellants.

      .Plank road companies — provisions for the extension of the term of their corporate existence — chapter 611 o/1875, chaptet' 135 of 1876 — chapter 187 of 1880.
    .In so far as chapter 611 of 1875, providing for the organization of business corporations, and authorizing them to extend their corporate existence, applied to plank road companies, it was repealed by chapter 135 of 1876, and after the passage of the latter act such companies could only extend the term of their corporate existence by taking the proceedings therein provided for.
    'Chapter 187 of 1880, amending chapter 611 of 1875, applied only to existing corporations, and not to such as had then ceased to exist.
    Appeal from an order made at Special Term, granting an order Testraining defendants from maintaining toll-gates, or demanding -and collecting tolls from persons traveling upon the read.
    The above-named “ Plank Road Company ” was duly incorporated under the “ General Act for the incorporation of Plank Road ‘Companies,” passed May 7,1847, for a term of thirty years, expiring April 18, 1880. After such incorporation it duly built a plank -road from Newburgh to the village of Shawangunk, in Ulster county, a distance of about thirteen miles, and established gates and collected the lawful tolls thereon, and continued so to do, and to work :and to care for the said road (except a small portion which had been abandoned some years ago, near Shawangunk, by due legal proceedings), up to April 18, 1880, and up to the commencement of ■this aotion, about May 14,1880. .

      An application made by tbe company to tbe board of supervisors, under chapter 135 of 1876, for leave to renew its corporate existence, was denied.
    In March, 1880, the company commenced and claim to have completed the necessary proceedings for coming under aud availing itself of the provisions of chapter 611 of Laws of 1875, entitled “ An act to provide for the organization and regulation of certain business corporations.”
    The plaintiffs, on their part, claim in effect, that the consent of the board of supervisors is necessary to such extension. An action was brought by plaintiffs for a dissolution of the company and for a receiver. A motion for a preliminary injunction, restraining said company from the collection of tolls, &c., was made before Justice Barnard, upon their complaint, and at Special Term, an order was made by him thereon, May 29, 1880, granting such injunction

      James G. Graham, for the plank road company, appellant.

      JE. A. Brewster, for the other appellants.

      Gassidy <& Brown, for the respondent.
   Dykman, J.:

The defendant was incorporated April 18, 1850, by special act, with thirty years for a term of existence. It claims to exist now by proceedings taken on April 17, 1880, under chapter 611, Laws of 1875. If the act has no application we need not examine the regularity of the proceedings. Whatever they were, and however taken, they cannot effect their object. What force the law of 1875 had, when passed, need not be studied. If it applied to plank road companies, it was so far repealed by chapter 135, Laws of 1876. This law provided a method by which such companies, if about to expire by limitation of corporate existence, can renew their charter, to wit, by permissive resolution of the supervisors of the county; and then proceeds section 5 : “ The corporate existence of such plank road company shall not be extended except in accordance with this act.” Chapter 253 of Laws of 1879, makes the law of 1876 applicable to Orange county.

It is claimed the words “ such plank road company ” in section 5 of the law of 1876, limit the operation of that law to a class of companies of which the defendant is not' one. The law of 1876, by the terms of section 1, applies to any plank road company organized under the general act of 1847. This is the very class to which the defendant does belong. The act of May 6, 1880 (ch. 187), must be examined if it could apply to the defendant. It became a law May 6, 1880.

Section 1 begins : “ Any existing corporation.” To validate proceedings taken April 17, 1880, to extend a corporate existence, which, without them, would expire April 18, 1880, a retroactive effect must be given this statute. There are no express-words of retrospection. Is there a certain unequivocal intent that this law .should so operate? (Dash v. Van Kleeck, 7 Johns., 499, per Kent, J.) It begins : Any existing' corporation.” The defendant expired by limitation, April 18. Its powers were not simply in abeyance; the corporation was extinct.

If it be possible to spell from the words of the statute a retroactive intent, we think this intent is limited by the words “ existing corporations,” to a class of which the defendant is not one. We conclude therefore that the defendant could renew its charter only under the law of 1876. This it did not do, and on April 19 1880, was extinct.

Whatever be the status of its right of- way or of the real estate acquired in fee, its franchise was gone — its franchise to collect tolls. Whether aptly worded or not, the order in effect restrains the exercise of this franchise, and does no more.

The order should be affirmed, with costs and disbursements.

Gilbert, J., concurred; Barnard, P. J., not sitting.'

Order granting injunction affirmed, with costs, and disbursements.


author: Dykman, J.: Barnard, P. J.,

text:
    CHARLES CROOKE, Appellant, v. AUSTIN CORBIN and JOHN CURTIN, Respondents.

      Emcmination of a party before trial — facts showing the testimony to be material and necessary must be alleged — Oode of Oivil Procedure, § 873 — General Rule No. 83.
    To authorize the granting of an order for the examination of a party before trial, the affidavit must specify the facts and circumstances showing the testimony of the party to bo material and necessary. It is not sufficient to allege that the testimony is material and necessary for the party making the application, and the prosecution of the action, and that the applicant cannot safely proceed to trial without examining him. (Barnard, P. J., . dissenting.)
    "What statement of facts is insufficient.
    Appeal from an order, made at Special Term, dismissing an order granted for the examination of the defendant, upon the ground that the affidavit used to obtain the same did not contain a suffi■cient statement of facts.
    The affidavit, after stating the names of the parties and other formal matters, proceeds : “ The complaint herein alleged defendants were residents of Kings county; that at Gravesend, July 8, 1880, they maliciously, with intent to injure plaintiff, by force, took plaintiff from his lawful business and occupation, compelled him to go with them, dragging him through the Manhattan Beach Hotel, through the midst of large-assemblages of people, to a place •of detention used for the safe-keeping of prisoners, called a station-house, in cellar or basement of said hotel; imprisoned and detained, restrained him of his liberty without right or authority, against plaintiff’s will and remonstrance, for a long time, preventing him from attending to his business, plaintiff having violence used towards him. Defendant Corbin ordered, directed, procured defendant Curtin to arrest plaintiff. He was arrestéd, deprived of his liberty by defendant Corbin’s procurement, by which acts plaintiff was prevented from attending to his business. No charge was made against plaintiff by defendants before any magistrate, and suffering by defendants’ acts $990 damages, for which he demanded judgment, besides costs. Defendants, in their answer, upon in-formation and belief, further allege at the times mentioned in compjaint, plaintiff was a breaker of the peace within defendant’s, Cur-tin’s, view, who was an officer .of the law, duly authorized to make arrests, demanding dismissal complaint and costs. That the .defendants’ testimony is material and necessary for the party making this application and the prosecution of this action. The plaintiff cannot safely proceed to trial without examining defendants. The allegations of defendants’ answér are not true, and deponent werily believes each defendant knew such to be the fact.”

      Frank Grooke, for the appellant.

      Alfred G. Oha/jrm, for the respondents.
   Dykman, J.:

The deposition oí a party to an action pending in a court of record, may be taken at his own instance, or at the instance of adverse party, or of a co-plaintiff or co-defendant at any time before the trial. As the foundation for the order, there must be presented to the judge who makes it an affidavit, setting forth, among ■other things in a case like the present, the name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making the application. -(Code Civ. Pro., § 872, subd. 4.) By rule 89 (83 of 1880) of the Supreme Court, where an examination is required as in this case, the affidavit shall specify the facts and circumstances which show, in conformity with subdivision 4 of' section 872, that the examination of the person is material and necessary.

The affidavit upon which the order for examination in this case ■was made, does not reach the standard thus set up. The only allegation of the affidavit respecting the materiality and necessity of the testimony of the parties whose examination is sought, is “ that the defendant’s testimony is material, and necessary for the party making this application and the prosecution of this action. The plaintiff cannot safely proceed to trial, without examining the defendants.”

No fact or circumstance to show the examination material' and necessary is specified, and the affidavit is insufficient in that respect. Tbe purpose of tbe rule of court is to require tbe statement of fact showing the materiality of testimony sought, and that it is required for use, as evidence on the trial. Information desired for the preparation for trial, cannot in this way be obtained.

The order appealed from should be affirmed, with costs and disbursements.

Gilbert, J., concurred.

Barnard, P. J.,

dissenting:

The affidavit of the plaintiff sufficiently shows facts and circumstances to entitle him to the order to examine defendant before tiial. It states the complaint to be for assault and battery and false imprisonment. That Curtis made the arrest, and Corbin directed it. That plaintiff was a resident of Kings county. The affidavit further states that the answer denies every allegation in the complaint, and avers an affirmative defense in this; that plaintiff was at the time of the arrest a breaker of the peace. The affidavit further avers that the allegations in the answer are not true, and that the defendant’s testimony is material and necessary for the prosecution of the action. It will be seen that both defendants are material witnesses to be examined. Corbin knows if he ordered the arrest; Curtis knew if he made it by direction of Corbin, and if plaintiff was engaged in a breach of peace at the time. No particular form of words is necessary. It is only important that a judicial officer can see from the affidavit that facts are stated sufficiently to show materiality, and not merely a bare statement of the materiality of the witness.

The order should be reversed, with costs and disbursements.

Order affirmed, with costs and disbursements.


text:
    In the Matter of the Petition of DANIEL CHAPPELL, an Imprisoned Debtor.

      Petition for the discharge of an imprisoned debtor — what is a sufficient statement of the cause of imprisonment.

    A petition for the discharge of an imprisoned debtor sufficiently sets forth the cause of his imprisonment, if it allege that he is confined in the county jail, by virtue of an execution against his person, issued in a civil action brought by a plaintiff therein named.
    Appeal from an order of the Richmond County Court discharging the petitioner, a judgment debtor, from the custody of the sheriff.

      George P. Avery, for Sarah Mertage, creditor appellant.

      W. J. Powers, for the petitioner.
   Dykman, J.:

This is an appeal from the County Court of Richmond county, from an order discharging Chappell from imprisonment under the statute relating to voluntary assignments by imprisoned debtors.

The regularity of the proceedings is challenged for the cause that the petition of the debtor did not set forth the cause of his imprisonment. The petition of the debtor, on this point, is that he is a prisoner, confined in the common jail ofRichmond county, on execution issued out of Richmond County Court, in a civil cause at the suit of Sarah Mertage, for the sum of $204, as appears by the certificate of the sheriff hereto annexed. The certificate of the sheriff is entitled, in the action of Daniel Chappell at the suit of Sarah Mertage, and states that the defendant is a prisoner confined within the common jail of the county of Richmond, on execution at the suit of the above-named plaintiff, by virtue of an execution against the person, issuing out of the County Court. The statute on this point is, that the petition shall set forth the cause of the imprisonment of the appellant, and this requirement is satisfied by this petition. The cause of the imprisonment is the judgment and execution.

This is the only point raised by the appeal, and the order appealed from must be affirmed, with costs and disbursements.

Barnard, P. J., and Gilbert, J., concurred.

Order affirmed, with costs and disbursements.


author: Dykman, J. :

text:
    THE BOARD OF SUPERVISORS OF KINGS COUNTY, Respondent, v. THE SEA VIEW RAILWAY COMPANY OF CONEY ISLAND, Appellant.

      Kings county — cannot restrain the construction of an elevated railroad over the Pm'leway to the Goncourse.

    The fee of the Parkway leading to, and the road adjoining the Concourse, constructed by the park commissioners of the city of Brooklyn, under chapter 583 of 1874, as amended by chapter 489 of 1875, was not vested, by the said acts, in the county of Kings, but remained in the former owners, and the county of Kings cannot maintain an action to restrain the construction of an elevated railroad across it, on the ground of its ownership of the fee therein, or on the ground that the railroad will frighten teams and diminish the value of the adjoining lots, which are to be assessed to reimburse the county for the moneys borrowed by it by the issue of bonds, for the purpose of paying the cost of the improvements made under the said acts.
    Appeal from au order sustaining an injunction pendente Ute, to restrain the defendant from entering upon Ocean Parkway and digging up the same, or the court-yards on either side thereof, for the purpose of constructing a railroad on, ovér, or across said Ocean Parkway, and from interfering with the same for any such purpose.
    The defendants, organized under chapter 697 of the Laws of 1866, an act supplementary to the General Railroad Act, threaten to construct and build an elevated railroad across said Ocean Parkway, about seven hundred feet north of the Concourse, by erecting posts or columns and abutments in said Ocean Parkway, upon which said railroad is to bo built, without the consent of the park commissioners, and without complying with the provisions of chapter 609 of the Laws of 1871, which provides for the necessary co-operation of the State engineer and surveyor in certain cases, as a condition precedent to the construction of a road over this and other avenues in Kings county. Ocean Parkway, in connection with Prospect Park at one extremity, and the Concourse at the other, was laid out and constructed by the park commissioners under certain acts of the legislature, and is placed by law under their immediate control.
    The county of Kings issued bonds for its construction, which bonds are now outstanding unpaid. The law authorizes the county to reimburse itself from an assessment laid upon the adjoining property. The complaint alleged that the construction of this railroad as proposed will impair the ability of the county to reimburse itself for this outlay, and destroy the usefulness of this avenue for the purposes intended.

      E. M. Cullen and Jesse Johnson, for the appellant.

      Winchester Britton, for the respondent.
   Dykman, J. :

An obstruction to a public highway is a nuisance and a wrong, to be redressed by an appropriate proceeding instituted by sovereign power. By the common law of England no person or corporation could have an action for a public nuisance. The king only could abate the wrong, as Blackstone has it, in his public capacity of supreme governor and pater familias of the kingdom. (3 Blackstone, 219.) With us the same rule is prevalent, and on it has been engrafted the same exception that, to enable an individual or corporation to maintain such action, they must sustain some special damage beyond the theoretical injury to the whole public. (Pierce v. Dart, 7 Cow., 609 ; Lansing v. Smith, 8 Id., 146.) Ocean Parkway is a public highway, laid out and improved, in pursuance of legislative provision, by the park commissioners of the city of Brooklyn. Part of the expense of opening and improving this thoroughfare is required to be charged and assessed against the county of Kings, and paid by its county treasurer, on the certificate of the park commissioners, and the other part is to be apportioned and assessed upon the property deemed benefited by the improvement. All the money required to be furnished in the first instance is to be raised by the sale of certificates of indebtedness of the county of Kings, payable in ten years from their date. Then the board of .supervisors of the county is to make annual provision by tax for the payment of interest on these certificates; and so much of them as shall be chargeable against the parcels of property assessed is to be levied thereon as part of the general tax for the improvement; and in the year preceding the maturity of the certificates the amount of any assessment remaining unpaid, with the accrued interest, must form a part of and be levied and assessed upon the property chargeable with said assessment, as part of the general tax upon the lands for the general expenses of the county. (Law of 1875, ch. 189, p. 569.) The subsequent maintenance of the avenue, after its construction, is a charge on the city of Brooklyn.

The highway has been constructed and the expense thereof discharged by the sale of the certificates to the extent of about $100,000, and now the board of supervisors has commenced this action in equity to prevent and enjoin the construction of an elevated railroad across this way.

Has the plaintiff standing, within the exception to the general rule of law above noticed. We must see. This Parkway is part of a scheme of improvement provided for by chapter 583 of the Laws of 1871, as amended by chapter 189 of the Laws of 1875 ; another portion of which was the construction of a shore road three thousand feet long and one thousand feet wide, called a Concourse, and also a road one hundred feet wide; and the provision is that the title to the Concourse shall vest in. the county of Kings in fee simple absolute. No provision of the law indicates that the fee of the land appropriated for this Parkway or for the one-hundred-foot road was taken from the owners or was to vest in the county of Kings. Neither is there any inconsistency in the use of this land for the Parkway, and the retention of the fee by the original owners; and while it was entirely competent for the legislature to provide for taking the fee of the land appropriated, and divesting the owners of all proprietary interest therein, yet to accomplish that purpose it was necessary plainly to declare an intention so to do, and an easement only would be taken unless the statute plainly •contemplated and provided for the appropriation of a larger interest.” (Cooley Const. Lim., 559.) Strict construction is required of statutes in derogation of the right of property. So that while the legislature, in the exercise of the right of eminent domain, may adjudge that the extinguishment of the owner’s title is required by the public use, yet such adjudication must be made plainly to appear, not necessarily by express words, but either by language or necessary implication. In this law we have neither.

To show that special damage will come to the county of Kings, from the construction of this bridge, an allegation is inserted in the complaint, that it will greatly impair the value of the land .along the Parkway, which is fo be assessed for the improvement, and render the same insufficient in value to reimburse the •county. In view, however, of the provision for the provision made for ultimate payment of the certificates of indebtedness, issued by the county by á general tax, this anticipated mischief does not bestow any special right nor prove any special injury. ■

The frightening of teams, and the causing of accidents, and the •diminution in the value of lots, and rendering them undesirable for residences and country seats, are theoretical evils, shared by the whole public, and give no peculiar rights to the county of Kings, or its board of supervisors.

Even if all this were otherwise, and the provision was that the ■county of Kings should pay the whole expense of this improvement, no private right would be thereby acquired. Throughout the ■state, the county highways constructed under the general statutes, are paid for by tax imposed upon the towns, and yet the towns do not •own them and have no control over them, and can maintain no action to prevent or remove obstruction in them.

Our conclusion is that this action cannot be maintained by the plaintiff, and we do not therefore pass upon the other question involved.

The order appealed from must be reversed, with costs and disbursements.

Gilbert, J., concurred; Barnard, P. J., not sitting.

Order reverse^, with costs and disbursements.


text:
    LAWSON JONES, Respondent, v. JULIA T. MERRITT, Appellant, Impleaded, &c.

      Married women — when personally liable for any deficiency arising on the sale of mortgaged premises.

    The defendant, J. K. Merritt, owning a piece of land, upon which was a mortgage for $1,500, ancl his wife, owning, as her separate estate, another piece-upon which was a mortgage for $2,200, joined in executing a mortgage upon the two pieces, to secure the payment of their joint bond for $4,000, the amount procured thereby being applied to the payment of the two mortgages.
    In an action brought to foreclose the mortgage, Held, that as part of the-money went for the benefit of her separate estate, a personal judgment for any deficiency that might arise on the sale was properly gendered against her..
    Appeal from a judgment for deficiency against defendant,, entered at Special' Term.
    The action was brought to foreclose a mortgage for $4,000, given by the defendants, Merritt, to the plaintiff. Neither the-bond nor the mortgage contained any covenant or clause expressly charging the separate estate of the defendant, Julia T-Merritt, with the payment of the money loaned.

      Geo. W. Van Siolrn, for the appellant.

      C. A. S. Van Nostrand, for the respondent.
   Dykman, J.:

This action, is for the foreclosure of a mortgage executed by the defendant, Merritt, and his wife, on two parcels of land, one of which belonged to Merritt, and one to his wife, as her separate property. On the husband’s lot there was a mortgage of $1,500, and on the wife’s lot there was a mortgage of $2,200, and the-money procured on the mortgage in foreclosure was used and appropriated to pay and discharge both of those mortgages. A judgment has been given in this action, to foreclose the mortgage, and for deficiency against the wife; to this latter direction the wife-objects, and whether a judgment can be entered against her individually is the question presented by this appeal.

The mortgage was made for the benefit of her separate estate, and she expressly charged its payment thereon by the execution thereof. $2,000 of the money was -applied to the payment of her debt charged on her land, and to .that extent her separate estate was benefited by the transaction. If. all the money procured on. this mortgage had been paid over to the husband, and appropriated by him for his own use and benefit, then her separate property-covered by the mortgage would have been bound, and no more, and there could have been no personal judgment permitted against her for deficiency. (Payne v. Burnham, 62 N. Y., 74.) As part of the money went for the benefit of her separate estate, a personal judgment for deficiency against her is proper.

The judgment must be affirmed, with costs.

Barnard, P. J., concurred ; Gilbert, J., not sitting.

Judgment affirmed, with costs.


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    WILLIAM E. REEVES, Respondent, v. EDWARD PIERSON, Appellant, Repleaded with SPENCER H. BROWN and ELLEN A. BROWN.

      Note — what unauthorised alteration thereof, will disehm'ge an indorser.

    In an action brought upon a joint and several promissory note made by a husband and -wife, and indorsed by the payee and others, one of the indorsers set up as a defense that the note was, after the making and indorsement thereof, materially altered, without his knowledge or consent, by the insertion in the body thereof of the following words, “ and the said Ellen A. Brown makes this note a charge upon her separate estate.”

      Held, that the facts so alleged constituted a good defense to the action, and that it was error to sustain a demurrer interposed thereto by the plaintiff.
    Appeal from an order made at a Special Term, sustaining a demurrer interposed by the plaintiff to the third defense set up by the defendant Pierson.

      George B. Gillespie, for the appellant.

      Hewry Pa/rsons, for the respondent.
    The alteration was not material as to the defendant Pierson, as it in no way could affect his contract of indorsement or vary his attitude to the contract as indorsed by him. (.MoCcmghey v. Smith, 27 N. V., 39 ; Ocvrd v. Miller, 1 Hun, 584; 2 Parsons on Oont., 6 ed., 718; Hunt v. Bermet, 6 Mass., 519 ; Brown v. Pi/nckham, 18 Piet., 172; Chase v. Howard, 17 Hun, 5; Shuler v. Gillette, 12 Id., 278 ; Flmt v. Craig, 59 Barb., 319.)
   Dykman, J.:

This action is on a joint and several promissory note, made by Spencer H. Brown and Ellen A. Brown, his wife, to the order of the defendant Swan. It was indorsed by Pierson, and then indorsed by to the plaintiff. Pierson, for an affirmative defense, alleges in his Swan answer that after the mating and indorsement of the note, and before the commencement of this action, the note was materially altered without his tnowledge or consent, by inserting in its body the words, “ and the said Ellen A. Brown mates this note a charge upon her separate estate.” To this defense a demurrer was interposed, which was sustained by the court below. This decision seems to have been made upon the theory that the contract of tbe indorser is distinct from that of the mater, and that, while the alteration of the note might ¡discharge the mater it cannot be set up in discharge of the indorser, because it is not a change in his contract. This position has no foundation in law. An indorser of a promissory note is a surety, and the contract which the law writes for him is that he will pay the paper indorsed, upon its maturity, on demand of the mater and notice to him, and beyond the strict bounds of this obligation his liability cannot be extended. It is ■quite true that his contract is independent from that of the mater, but he is a surety, nevertheless, and has all the rights of that relation. Among the most prominent of these is the rule that there .shall be no transaction with the principal debtor without his tnowledge. (Calvo v. Davies, 8 Hun, 222, and 73 N. Y., 211.) So strict has the rale become that a surety is not to be held beyond the precise stipulations of his contract, that courts' will not stop to inquire whether changes are injurious or beneficial. If they are material they vitiate. (Paine v. Jones, 14 Hun, 580, and 76 N. Y., 274.) The alteration in this ease was material and sufficient to discharge the makers from all liability on the note, and certainly, if the holder has discharged the makers from their obligation to pay the note without the knowledge or assent of the indorser, the latter is discharged also.

In the case of Woodwoorth v. Bank of America (19 Johns., 391), a promissory note was indorsed in blank and returned to the maker, who, without the knowledge-or consent of the indorser, wrote on the margin the words “ payable at the Bank of America, J. K.,” and in an action by the bank against' the indorser it was held by the old Court of Errors that the memorandum in the margin was a material alteration of the contract, which discharged the indorser from his liability. McGrath v. Clark, (56 N. Y., 34) was an action on a promissory note against the defendant as indorser. When the defendant made his indorsement the note was as follows:

“ $175. Whitehall, N. Y., Nov. 27, 1868.
After date I promise to pay Wm. McGrath, or bearer,
$175, at
“E. D. LANDON.”

After the note was indorsed it was delivered to the maker, who filled in the blank by inserting the time and place of payment, and adding the words “with interest.” The Court of Appeals held that the delivery of the note' to the maker gave him an implied authority to fill the blanks by inserting a time and place of payment, but that it did notauthorizethe addition of the words “with interest f and that this was a material alteration, which invalidated the note as against the indorser in the absence of proof of authority therefor, aside from the delivery. It will be seen in that case the alteration was made by the maker, wlio was, therefore, bound by it, and yet the indorser was held to be discharged thereby.

The decision of the court below was erroneous, and the judgment must be reversed, and judgment given for the defendant on the demurrer, with costs.

Barnard, P. J., concurred; Gilbert, J., not sitting.

Order sustaining demurrer reversed, and judgment for defendant, given upon demurrer, with, costs.


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    JOHN R. RICHARDSON, Appellant, v. JOSHHA DRAPER and JAMES B. HULSE, as Assignees of ELISHA B. WHEELER, Appellants.

      Contract — by the laws of what State it is to be governed. — liability of the estate of a deceased joint debtor — Code of Civil Procedure, § 758, is not applicable to-prior contracts.

    In October, 1872, the Nes Silicon Steel Company, a corporation organized! under the laws of this State, and having its principal place of business in Rome, Oneida county, executed at that place bonds, to the amount of $150,000, payable January 1,1878, at a bank in New York city, secured by a mortgage upon real estate owned by it at Sandusky. Ohio, payment of the bonds being also secured by a joint guaranty thereof, executed in this State by one Wheeler and others. Thereafter, the bonds were, in pursuance of a previous arrangement to that effect, sent to Sandusky, and there sold to citizens of that place. In 1874, Wheeler made ageneral assignment of all his-property for the benefit of his creditors, and thereafter, and in 1876, died.
    TJpon an application to compel a distribution of the funds in the hands of the assignee, the holders of the bonds, payment of which had been so guaranteed by Wheeler, claimed to be entitled to share therein.

      Held, that as the guaranty though executed in this State, was to be delivered and become operative and had its inception in Ohio, its construction and the liability of the parties thereto, were to be governed by the laws of that State.
    That as a statute of that State provided that when one or more persons indebted upon a joint contract shall die, his estate shall bo liable, as though the contract had been joint and several, the estate of Wheeler was liable for the amount of the bonds so guaranteed by him.
    Section 758 of the Code of Civil Procedure, providing that the estate of one jointly liable upon a contract shall not be discharged by his death, is not applicable to contracts made prior to its adoption.
    Appeals by the plaintiff and defendants from an order granted at a Special Term of this court, on December 23, 1879, which overruled that portion of the referee’s report herein, which rejected the claims proved against the assigned estate of Elisha P„ Wheeler by the bondholders of the Nes Silicon Steel Company, and allowed said ckims; and also from the decree or judgment granted herein by Mr. Justice Pratt, allowing said claims against said estate, and directing their payment pro rata with the proven claims of other creditors of said Wheeler.
    On June 3, 1872, the Nes Silicon Steel Company was incorporated in this State. The company, having expended its capital, needed money to develop the property purchased therewith, and in ■ July, 1872, through E. Gulick, its president, opened negotiations with the bond-holders herein, residents of Sandusky, Ohio, for a loan of $150,000, to be expended in erecting a rolling mill at San- ■ dusky. The loan was to be represented by bonds of the company for the amount, secured by a mortgage upon the mill, and by the guaranty of Elisha P. Wheeler and others. The bonds were payable at a bank in the city of New York. The citizens of San-dusky, relying upon the guaranty, subscribed $150,000, and Mr. Iiubbard was appointed trustee for them and the company.
    Thereafter the bonds, mortgage and guaranty were sent to Mr. Hubbard, at Sandusky, and after their receipt, the money subscribed was paid at Sandusky, and the bonds were sold there and .are now held by the claimants herein, who reside there.
    S. W. Fullerton, for the plaintiff, appellant.

      J. C. Perry, for the defendants, appellants.

      James L. Bishop, for certain creditors, respondents.
    The contract of guaranty, as to its construction and legal effect, is governed by the laws of the State of Ohio. The contract of guaranty being •silent as to the place of performance, it is to be governed by the law of the place where it was made. (Brandt on Suretyship, §§ 1, 2; Lee v. Selleck, 38 N. Y., 615; Cook v. Litchfield, 5 Sandf., ■ 330 ; S. C., 9 N. Y., 290 ; Aymar v. Sheldon, 12 Wend., 439,443 ; Six v. Brown, 12 Johns., 142; and Lee v. Selleck, approved in Merchants' Bank v. Griswold, 72 N. Y., 481.) The guaranty was made in legal intendment at Sandusky, Ohio. (Tilden v. Blair, .21 Wall., 241; Hyde v. Goodnow, 3 N. Y., 271; Mullen v. Hicks, ■49 Barb., 250; Artisans' Bank v. Park Bank, 41 Id., 599 ; Wojld/t'on v. Mitchings, 9 Abb. Pr., N. S., 359, 367; MiTMken v. Pratt, Alb. L. J., April. 19, 1879; Bell v. Bruen, 1 How. U. S., 615; Story Conf. Laws, 6 ed., § 284;'1 Daniels Negotiable Instruments, § 868; 2 Pars. Bills and Notes, 327, and cases; Lee v. Selleeh, 33 N. Y., 615 ; Oooh v. Litchfield, 5 Sandf., 330; S'. O., 9 N. Y., 290.) If it could be conceded that the place of payment of the guaranty was at New York, still, inasmuch as the guaranty was sent to Ohio to take effect there, and as the basis of an obligation to be negotiated there, the contract is to be regarded as an Ohm contract, and the place of payment is a mere incident. (Tilden v. Blair, 21 Wall., 246 ; Prov. Co. Bamh v. Frost, 13 N. B. R., per Blatchford, J.; National Bamh v. Morris, 1 Hun, 680 ; Wayne Co. Sa/o. Bamh v. Low, 6 Abb. N. 0., 76 ; Diehimson v. Edwards, 20 Alb. L. J., 347; Chapman v. Bobertson, 6 Paige, 627; First National Bamh v. Shaw, 61N. Y., 283, 292; Bright v. Judson, 47 Barb., 29, 36.)
   Dykman, J.:

There is money in the hands of the defendants in this action, which they hold as assignees of Elisha P. Wheelei’, deceased, under a general assignment, for the benefit of creditors.

Certain persons desire to share in the distribution of this fund, whose claims have this foundation:

There was, in the days of Elisha P. Wheeler, a domestic corporation, known, as the Nes Silicon Steel Company, with its place of business in the village of Rome, Oneida county, in this State. This corporate body issued its bond for $150,000, dated October 28, 1872, payable to L. S. Hubbard, trustee, or bearer, at the Fourth National Bank, in the city of New York, on January 1, 1878. The payment of the bonds was secured by a mortgage on real property of the company, at the city of Sandusky, in the State of Ohio, and all the bonds were given to the citizens of that city, for a loan by them to the company of that amount.

The payment of this loan was guaranteed by Elisha P. Wheeler and others, by a joint guaranty. The bonds have not been paid, and now the holders claim to be creditors of Wheeler and entitled to share in the distribution of the funds held by the assignee. The guaranty was signed in October, 1872. The assignment to Í the defendants was made in December, 1874. Mr. 'Wheeler died in March, 1876, and the bonds in question came due January 1, 1878; they were, therefore, in immaturity at the time of his death.

Outside of the guaranty, Wheeler was in no way liable for the payment of these bonds. By that contract he became surety only, and that is the limit of his obligation. By settled law with us his death terminated his liability, and discharged his estate both in law and equity, and left the surviving guarantors alone subject to this contract. (Getty v. Binsse, 49 N. Y., 385; Wood v. Fisk, 63 Id., 245 ; Risley v. Brown, 67 Id., 160.)

Since the making of this contract, the legislature has enacted a provision that the estate of a party jointly liable uj>on contract with others shall not be discharged by his death. (Code of Civil Procedure, § 758.) This new rule of liability, however, can be allowed no force in this case under the inhibition of the Federal Constitution forbidding the passage of any State law impairing the obligation of contracts. It would enlarge the liability of the parties and change the intention of their stipulation, and thus impair their contract. (Randall v. Sackett, 77 N. Y., 480.) If, therefore, there was no other point upon which the determination of this case depended, the demand of the Ohio claimants would be disallowed and the judgment below reversed.

By far the most serious question in the case, however, remains yet to be examined. Thus far the examination has proceeded upon the theory that the guaranty was a New York contract, and controlled by the law of this State. The contention of the claimants on the other hand is, that it is an Ohio contract and must be interpreted by the law dominant in that State, and this claim must now be examined. At the time the guaranty in question was made there was a statute of the State of Ohio, providing “ that when two or more persons shall be indebted upon any joint contract, and either of them shall die, his estate shall be liable therefor as if the contract had been joint and several, or as if the judgment had been against himself alive.”

x This guaranty is a new and independent contract, and has in it no place of performance specified. It runs to the trustee Plubbard and the bondholder, and the recital is that it was to be ■deposited with him for the benefit of the holders of bonds. The law is, that the rights of parties to lawful contracts are determined by the law of the place of performance. Where was that place for this contract? It had no inception as such ■until its acceptance by the bond-holder. To that time it rested in proposition merely, and might have been revoked and withdrawn. Until that time the mutuality essential to its validity was wanting. After such acceptance, the guaranty became a con-bract, and not before. That took place in the State of Ohio, and it ;seems to result that the guaranty there first had inception as a binding contract, for it was sent there with intention that it should first be used in that State.

In the ease of Tilden v. Blair (21 Wall., 246), a draft was drawn at Chicago, on Tilden & Co., and accepted by them, payable in New York, and then the draft was returned to Chicago, with the intention that it should be there negotiated, and the court said: “ In legal effect they accepted the draft in Chicago, when, by their .authority, the drawer negotiated it, and thus caused effect to be given to their undertaking. Nor is the law' of the contract changed by the-fact that the acceptance was made payable in New York. The place of payment was doubtless designated for the •convenience of the acceptors or to facilitate the negotiation of the draft. But it is a controlling fact, that before the acceptance had any operation, — before the instrument became a bill, the defendants sent it to Illinois for the purpose of having it negotiated in that State.”

The general rule of law is that a contract takes effect, as such, at the place where it was intended to be delivered, and become operative, and the liability of the pai-ties is determined by the law of that place. (Lee v. Selleck, 33 N. Y., 615; Tilden v. Blair, 21 Wall., 246; Wayne Co. Bank v. Low, Court of Appeals, not yet reported.)

In this case it was clearly the intention of the parties that the guaranty should be forwarded to Sandusky, and there become operative, as a contract with the trustee and the bond-holder. Our conclusion, therefore, is that the contract is controlled by the statute, and that the judgment appealed from must be affirmed, with costs.

The motion to dismiss the appeal must be denied, without deciding the question respecting the right of the assignees to appeal. There is an appeal by the plaintiff, who has sufficient interest to make it.

The motion to dismiss appeal should be denied, with costs and disbursements.

Barnard, P. J., concurred; Gilbert, J., not sitting.

Judgment affirmed, with costs, and motion to dismiss appeal -denied.


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    JAMES H. MAGILL, as Executor, &c., Respondent, v. ELIZABETH McMILLAN, ELLEN SHORT and PATRICK V. MURRAY, Appellants.

      Will — when the interest of the beneficiary is contingent, until the arrival of the time for distribution.

      A testator, by his will, devised all his real and personal property to his executors, in trust, to collect and receive the income and pay over the same to his five children, in equal proportions, until his daughter Ellen, or, in case of her death, his daughter Margaret, should become of age, at which time he directed his executors to sell all his real estate and con vert all his personal properly into money, and to then divide his said estate between his said children equally, share and share alike ; and in case any of his children should die before such distribution, leaving issue surviving, then such issue to take the share to which his, her or their parents would have been entitled if living»

      Meld, that the shares did not vest in the children until the time for the distribution had arrived, and that the share of a daughter who had died previous to that time, intestate and without issue, went to the surviving children and not to her husband.
    Appeal from a judgment entered upon the trial of this action at Special' Term. The action was brought to obtain a judicial construction of the will of one James Short, deceased. He died leaving five children, three of whom died intestate and without issue before tbe defendant, Ellen Short, attained the age of twenty-one years. One of the three so dying married the defendant, Patrick Y. Murray, who claimed to be entitled to her share of the estate.
    The will provided:
    “ Second. I give, devise and bequeath unto my executors hereafter named all my real and personal estate and property of every name and nature and wheresoever situated, to have and to hold the same unto them and the survivor of them. In trust, nevertheless,, and to and for the following uses, intents, and purposes, hereby giving and granting unto them and the survivor of them full power and authority to sell, grant and convey all or any part of my said estate and property, either at public or private sale, and at such time- or times, place or places, and upon such terms and conditions as may be deemed just and most expedient to effectuate the purposes of this my will, to manage my said estate, to invest and keep invested the principal thereof, and to collect and receive the income derived therefrom; and after paying the necessary expenses for conducting my said estate, to apply and pay over the said net income unto my five children, Mary Ann, Elizabeth, Ellen, Margaret and Agnes, in equal proportions, share and share alike, until my said daughter Ellen shall arrive at the full age of twenty-one years, or, in case of her death before that time, then until my said daughter Margaret shall become of said full age of twenty-one years.
    “ Third. Upon the arrival of my said daughter Ellen at the full age of twenty-one years, or, in case of her death before that time, then when my said daughter Margaret shall arrive at said full age of twenty-one years, I direct that my said executors shall sell all my real estate and convert all my personal property into money, and shall then divide my said estate between my said children equally, share and share alike.
    “ Should any of my children die before such distribution, leavdng issue her surviving, such issue shall take the share his or her or their parents would have been entitled to if living, and in same manner; that is, in equal shares.”

      A. J. Rogers, for appellant Murray.

      F. G. McDonald, for appellants McMillan and Short.

      WiUiam D. Veeder, for the respondent
   Dykman, J.:

The surviving executor of the last will and testament of James Short comes into court with this suit, for a judicial construction of the will of this testator.

All the property of the testator is given to the executors, with power of sale and disposition, in trust to manage the estate, invest the principal, collect the income, and apply and pay over the income to the five children, Mary Ann, Elizabeth, Ellen, Margaret and Agnes, in equal proportions, until Ellen arrived at the full age of twenty-one years, or, in case of her death, then until Margaret became twenty-one.

Upon the arrival of Ellen at the age of twenty-one years, or, in case of her death, when Margaret reached that age, the executors were directed to sell all the real property, and convert the present property into money, and then divide the estate equally between, the said children. Then comes this clause : “ Should any of my children die before such distribution, leaving issue her surviving, such issue shall take the share his, her or their parent would have been entitled to if living, and in the same manner; that is, in equal shares.”

At the testator’s death, in May, 18Y0, all the children were minors under the age of twenty-one years. Margaret died unmarried and intestate in December, 18Y6; Agnes died unmarried and intestate in September, 18YY ; and Mary Ann died intestate in May, 18Y8, leaving a husband, who is the defendant, Patrick Y. Murray. She was of full age at the time of her death. Elizabeth and Ellen are both living and of full age. Elizabeth is married, and Ellen is unmarried.

The defendant, Patrick Y. Murray, claims the share his wife would have received on the distribution, had she lived until that time came. This is on the theory that her interest vested at the death of the testator. There was no immediate gift to the children. All was given to the executors, to be divided among the children when Ellen attained the' age of twenty-one years. Until that time the title to all the property was in the executors, and none but living children could share in the distribution. The right to share in the distribution was contingent upon the duration of the life of the beneficiary until Ellen became twenty-one years of age. Euturity is annexed to tlie substance of the gift and not to the time of payment. The gift is contingent, and did not, therefore, vest at the death of the testator. The surviving executor must hand over the property to the surviving daughters, and he may convey the real property to them on their request upon their execution of a full release.

The husband of the deceased daughter, Mary Ann, has no right to share in the distribution of the property.

The judgment must be affirmed, with costs.

Barnard, P. J., concurred; Gilbert, J., not sitting.

Judgment affirmed, with costs.