author: ADAMS, J.

text:
    David Watters, Resp’t, v. Warring S. Weed et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    Appeal—Evidence. .
    The evidence, in view of all the facts of this case, are held to be hardly sufficient to support a judgment for plaintiff and consequently there should be a new trial of "the action.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    The defendants in this action, at the time of its commencement, were engaged in the business of manufacturing lumber. There "mill was located at Glen Hazel, Pa. On the 19th day of October, 1891, they entered into a contract with the plaintiff, by the terms of which the plaintiff agreed to cut and deliver on board tram cars all the lumber of a certain kind therein described, which was located upon a tract of land in the vicinity of defendants’ mills, at the rate of $8 per 1,000 feet. The day following, the plaintiff took possession of the land upon which this timber was standing, and commenced operations under this contract. Preliminary to the work of cutting and removing this timber the plaintiff constructed slides down the sides of the mountain. He also constructed camps and barns and a house, and built a tram road, ’and he thereupon proceeded to cut the timber, and did actually cufeand load upon the cars about 537,000 feet of logs, for which be was duly paid in accordance with the terms of the contract. While in the process of cutting the timber m question, and about the middle of December, 1891, the sheriff of Elk county, Pa., served upon the plaintiff an order in the nature of an injunction, restraining him from proceeding any further in the work of cutting said timber, In obedience to the mandate of the court, the plaintiff did abstain from any further attempt to cut the timber upon said premises, and before the injunction order was vacated the season for cutting timber had expired. The plaintiff was unable to proceed any further in the fulfillment of his contract. He was prevented from cutting the timber which remained, and which amounted, as he alleges, to about 1,500,000 feet, and he claims to have sustained damages in the sum of §3,000 by reason of profits in not being permitted to cut the same. This action was brought to recover that amount, and was tried upon the theory that thé defendants availed themselves of the injunction in question, which it appears was obtained at the instance of a stranger to the action, to prevent the plaintiff from the performance of his contract; and the principal question submitted to the jury was whether or not the plaintiff’s inability to avail himself of his contract was attributable to improper interference on'the part of the defendants. On this issue 'the jury rendered a verdict in favor of the plaintiff for the sum of $609,
    F. W. & E. F. Kruse, for app’lts; William H. Henderson, for resp’t.
   ADAMS, J.

—We have examined the record in. this case with great care, and as a result of that examination have reached the conclusion that the verdict of the jury was against the weight of evidence. So far as we are able to discover, the plaintiff entered upon the performance of his contract with every indication of a desire on the part of the defendants that it should be fulfilled in accordance with the terms thereof; and he was proceeding to fulfill the same, when he was prevented by the injunction order issued out of a Pennsylvania court at the instance of a party-who, so far as the record discloses, bore no relation whatever to any of the parties to this action. There is not the slightest evidence that the defendants instigated, or were in any manner instrumental in procuring, that order. Ho motive whatever is disclosed for any such action upon their part, but, upon the contrary, the fair inference seems to be that it was quite as anftoying in its effects upon them as upon the plaintiff, and that. upon being informed of its service they undertook at once in good faith to procure its vacation, but were not immediately successful in the attempt. It is true that they instructed the plaintiff not to cut any more timber after the order was served, but this direction appears to have been cautionary merely, and the fact that the order was served upon them several days before it was upon the plaintiff, and that they did not attempt to prevent his cutting timber until it was actually served upon him, furnishes pretty strong evidence that they were not very anxious to avail themselves of it as an excuse for any interference on their part.

Considerable stress seems to be laid upon the fact that when the plaintiff handed the injunction order to- the defendant Mundy the latter stated that it was what he had been wanting, and the inference sought to be drawn from this interview is that Mundy had been anticipating the service of the paper, and intended to express his satisfaction that it had been served. It is doubtful, however, if the evidence will warrant the construction contended for by the plaintiff, and apparently given to it by the jury, for the plaintiff himself testifies that in connection with this remark Mundy directed him to “ right back over there ; ” and said that he would ■furnish a bond, and have the timber released by the following Monday, so that he, the plaintiff, could go on cutting. It is true, as has already been suggested, that the defendants were nbt at first successful in their attempt to have the order vacated, but there is no proof that they did not do .all that lay in their power to accomplish that object. Ultimately, however, the. order was vacated, but it- was then too late in the season to cut any more timber, as was stated to the plaintiff by Mundy, the timber was not of much value when cut with the sap in, and in such statement the plaintiff seems to have fully concurred.

Another fact appears in the case which is uncontroverted, and ■to which the jury does not appear to have attached the importance it deserves. That fact is that before this action was commenced, and possibly before the plaintiff had conceived the idea of charging the defendants with any responsibility, he had testified in another proceeding in the state of Pennsylvania that he was prevented from fulfilling his contract solely by reason of the injunction. Upon the whole case, therefore, we are inclined to think that, if- there was any evidence upon which the plaintiff could fairly rest his contention, such evidence, in view of all the facts of the case, was hardly sufficient to warrant the jury in. reaching the conclusion it did, and that consequently there should be a new trial of the action, with costs to abide the event

All concur.


source: Caselaw Access Project

author: CULLEN, J.

license: Public Domain

text:
    Lillian Cauchois, App’lt, v. William B. Proctor, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Jan’y 21, 1896.)

    1. Judgment—Pleadings.
    Where an answer pleads affirmative matter constituting a defense, which is admitted by the reply, a dismissal on the merits is proper.
    2. Pleading—Amendment. '
    After an action is brought on for trial, it is not error to refuse to allow an amendment to the reply changing the issues. The plaintiff, upon discovering the mistake in his pleading, should apply to postpone the trial and make regular application on notice for leave to serve an amended reply.
    Appeal from a judgment of dismissal entered on the merits.
    R. M. Shearman, for app’lt ; Strong, Harmon & Mathewson, for resp’t.
   CULLEN, J.

—This is an appeal from a jugdment of the special term dismissing the plaintiff’s complaint on the merits. The corn-plaint alleged a copartnership. The answer set up, with other defenses, that the agreement for a partnership was by mutual assent abrogated and annulled. To this and another affirmative defense the plaintiff, by an order of the court, was compelled to reply. By the reply the plaintiff expressly admitted the allegations of the answer above recited. At the opening of the trial the defendant moved for judgment on the pleadings.

It is not disputed that the defense pleaded and admitted was a complete bar to the action. Therefore, as the pleadings stood, a judgment for the defendant was unquestionably correct. But it is claimed that the dismissal should not have been on the merits. We cannot see why. The complaint was dismissed, not because of a failure of proof, or because the complaint failed to state a good cause of action, but because an affirmative defense was conclusively established by the admission of the reply. Had the case been at law before a jury, the proper direction would have been, not a nonsuit, but a verdict for the defendant. Being in equity the complaint might properly either have been dismissed on the merits or.judgment ordered for the defendant.

When the defendant moved for judgment on the pleadings, the plaintiff applied to amend her reply by withdrawing her admission -of the defense, and substituting therefor a denial, claiming that the admission occurred through inadvertence and error. This application was denied. The plaintiff complains of this ruling as erroneous. While the amendment sought may not fall within the strict letter of Code, § 723, as it did not technically change a claim or defense, it did substantially change the issue on which the case was brought on for hearing. The very object of compelling a reply was that defendant might know whether the facts of this defense were admitted or controverted, the amendment should not have been allowed against the objection of the defendant, The plaintiff, upon discovering the mistake in her pleading, should have applied to postpone the trial, and made regular application on notice for leave to serve an amended reply. Nor is the plaintiff now without remedy. She may move for a new trial on the ground of surprise, and also for permission to amend her pleading, which will doubtless be granted, but there has been no error committed on the trial which justifies a reversal of the judgment.

The j udgment appealed from should be affirmed, with costs, unless, within twenty days, the plaintiff withdraws her appeal, and pays the respondent the costs of the appeal

All concur»


author: ADAMS, J.—

text:
    Fredericka Beitz, App'lt, v. Adaline H. Fuller et al., Resp’ts.

      (Supreme Court, General Term,, Fifth Department,

      Filed December 28, 1895)

    3. Judgments—Correction.
    Courts have sufficient control over their own judgments to amend them at any stage of an action in order to correct a mistake or to conform them to the decisions actually made.

      3. Same.
    Such, power is limited to corrections which do not involve matters of substance, and its exercise is not permitted to meet some legal, or even equitable, exigency to which the court’s attention may becallecl at the sub- ¡ sequent stage of the action nor where it will limit the legal effect of a judg- , ment. So held, where, by inadvertence, a trial court failed to incorporate in its judgment the conclusion of law that defendant was not entitled to '• recover damages in that action, and remitting the parties to their appro- : priate actions on the contract, and where, on plaintiff’s motion, judgment was amended by inserting such conclusion of law, and on its own motion ' the court further amended both decision and judgment by remitting the parties to their appropriate actions for damages,or to enforce the contract.
    Appeal from an order amending a decision, of the trial court and the judgment entered thereon.
    This action was brought to rescind a contract for the sale of land upon the ground of fraud. The defendant Fuller, in her answer to the amended complaint, set forth certain facts constituting her defense, and demanded a specific performance of the contract. Afterwards, and by leave of the court, she served an amended answer, which, instead of praying for specific performance, set forth other facts, and demanded judgment for damages for a breach of the contract. The issues thus joined came on for trial before the court, at a special term thereof, and the trial justice, in his decision, found as a conclusion of law that the plaintiff had-failed to maintain her action, and that the defendant Fuller was not entitled to recover any damages in this action, and remitted the parties to their appropriate actions to enfore the contracts and agreements between them. The judgment subsequently entered failed to adjudge that the defendant Fuller was not entitled to recover any damages in this action, and that no relief was granted to any of.the parties, as the court thereupon, "upon the plaintiff’s motion, amended the judgment so as to conform to the decision by adding this provision, and then, upon its own motion apparently, further amended both the decision and judgment in such manner as that they now provide' that the parties are remitted to their appropriate actions for damages, if any, or to enforce the contracts and agreements between them, instead of being left to their appropriate actions for enforcement of contracts merely. From so much of the order as contains this additional amendment the plaintiff appeals to this court.
    George C. Miller, for app’lt; Root, Orton & Baldwin, for resp’ts.
   ADAMS, J.—

It is a well-settled rule of practice that courts have sufficient control over their own judgments to amend them at any stage of an action in order to correct a mistake or conform them to the decisions actually made. Code Civ. Proc. § 723 ; Bank v. Morton, 67 N. Y. 199; National City Bank v. New York Gold Exch. Bank, 97 N. Y. 645. But such power is limited to corrections which do not involve matters of substance, and its exercise is not permitted to meet some legal, or even equitable, exigency to which the court’s attention may be called at a subsequent stage of the action, nor where it will limit the legal effect of a judgment. Stannard v. Hubbell, 123 N. Y. 520; 34 St Bep. 413. The correctness of the- plaintiff’s contention depends, therefore» upon which of these two classes of amendments the one he complains of belongs to. This case affords a very apt illustration of an amendment which is clearly permissible. The trial court, in its second conclusion of law determined “that the defendant Ada-line Fuller is not entitled to recover any damages in this action,” and that no relief should be granted to any of the parties thereto; but by inadvertence this conclusion was not incorporated into the judgment, and all the parties concede that this mistake is one which the court was called upon to correct upon motion. This being so, in what sense is the additional amendment obnoxious to the rule which confines the power to amend within certain limitations? The objection apparently relied upon by the plaintiff is that the judgment, prior to its amendment, was an adjudication, in effect, that the defendant Fuller, having by her first answer elected to affirm her contract and pray for its enforcement, could not thereafter ask for its rescission, and demand damages. It will be observed, however, that this question is not specifically determined by either the decision or the judgment; and whether either is to be regarded as equivalent to an adjudication is at most a matter of inference or construction to be hereafter decided. Without any design to forestall the disposition to be made of the question, should it ever arise, it may be suggested, in connection with its present consideration, that the learned trial justice found as a fact that the defendant Fuller’s damages, if any were sustained, accrued subsequent to the commencement of the action; and, as he denied her right to recover any damages in this action, it may be that, although sitting as a court of equity, he reached this conclusion because of the fact above stated. The amendment which he subsequently allowed would seem to indicate that he did entertain that opinion; and, if so, then it was a proper one to make, for it simply conformed his conclusion of law to the finding of fact. But, in any event, it is difficult to see how the correction of either the decision or the judgment can be regarded as very material, for if they even adjudicated the question of an election of remedies, the change made does not limit or modify their effect in that particular, but leaves the case practically where it stood before.

The order appealed from should therefore be affirmed, with $10 costs and disbursements.

All concur.


author: MERWIN, J.

text:
    Minnie M. Albrecht, by Guardian, etc, Resp’t, v. Robert H. Canfield, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Courts—Order by judge.
    Where a petition for the appointment of a guardian ad litem is addressed to the county judge, and not to the county court, and the order of appointment is signed by the county judge, it will he assumed that the county " judge acted in the capacity that he was called on to act and in which he had a right to act, though the caption of the order recites that it was in the county court.

      3. Same.
    The fact that the attorney entered the order and called it an order of tha county court, does not estop his client from asserting its true character.
    3. Same.
    • Nor does the' allegation in the complaint that the guardian was appointed by an order of the county court conclude the plaintiff upon the motion, made to dismiss the proceedings from claiming that’ the order was made : by the judge.
    ■Appeal from an order, denying a motion to dismiss the action, and- complaint and all proceedings on the ground that the order; purporting to appoint the guardian ad litem of plaintiff, was the order of the Oneida county court and made without jurisdiction, or that plaintiff be required to procure a proper appointment.
    Henry F. & James Coupe, for app’lt; M. V. B. McGraw, for resp’t.
   MERWIN, J.

—The heading or caption of the order in question is, “At a Term of the Oneida County Court held at the Chambers of the Oneida County Judge in the City of Utica, N. Y., on the 29th day of April, 1895. Present: Hon. W. T. Dunmore, Oneida County Judge.” In the body óf the order the petition for the appointment is referred to as being annexed. At the close of the order it is dated April 29,1895, and is signed by the county judge. There is no direction for its entry. Upon referring to the petition, which is handed up as a part of the papers, it appears to be addressed to the county judge, andnot to the county court, but there was an application to the county judge.' It must, I think, be assumed that the county judge acted in the capacity that he was called upon to act, and in which he had a right to act. That being so, the caption of the order may be disregarded, and the order remain properly signed as a valid order-. Phinney v. Broschell, 19 Hun, 116 ; affirmed, 80 N. Y. 544 ; Ex parte Knickerbocker Bank, 19 Barb. 602. See, also, Dresser v. Van Pelt, 15 How. Prac. 19 ; People v. Kelly, 35 Barb. 447. The fact that the attorney entered the order and called it an order of the county court does not estop the plaintiff from asserting its true character. Its validity did not depend upon the form of the entry. As a rule, an ex parte order of a judge need not be entered (1 Rum. Prac. 213), though the papers should be filed (Sup. Ct. Rule 2). Nor did the allegation in the complaint that the guardian was appointed by an order of the Oneida county court conclude the plaintiff upon the motion made to dismiss the proceedings. The, papers were all before the court, and the question on the motion was, not whether the ‘complaint was demurrable .(Grantman v. Thrall, 44 Barb. 173 ; Bartholomew v. Lyon, 67 Barb. 86), but whether there was in fact a valid appointment of a guardian. The motion was, we think, properly denied, and the order of the special term should be affirmed.

Order affirmed, with $10 costs and disbursements.

All concur.


author: LEWIS, J.

text:
    Winifred Collins, as Executrix, etc., App’lt, v. New York, Chicago and St. Louis Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Nbghgfnce—Contributory.
    It is contributory negligence on the part of a decedent to go upon the railroad track without looking to see if a train is approaching, where he is entirely familiar with the crossing and knows that a train is liable at any' moment to pass along the track.
    S. Same—Speed—City ordinances.
    The rule that a person has a right to assume that a train will not be running at a greater rate of speed than that fixed by the city ordinance, does not go to the extent of absolving him, when approaching a railroad crossing, on which a train is liable to be running, from making use of his senses to avoid the engine.
    Appeal from a judgment in favor of defendant, entered on .a nonsuit.
    Frank Brundage, for app’lt; John Gr„ Milburn, for resp’t,
   LEWIS, J.

—The plaintiff’s testator, Lawrence Collins, while attempting to cross a railroad track of the Lake Shore & Michigan Southern Railroad Company, on Seymour street, in the city of Buffalo, was struck and killed by one of the defendant’s trains of cars passing across Seymour street upon the track of the Lake Shore Company. The plaintiff, as .executrix, brought this action to recover the damages sustained by the next of kin, by the death of the testator. The death was concededly caused by the negligence of the defendant, which consisted in its train of cars being run at from twenty-five to thirty miles an hour, in violation of a city ordinance, which limited the running of trains in the city to a rate of speed not exceeding six miles an hour. At the close of the plaintiff’s evidence, a nonsuit was ordered, upon the ground that the plaintiff had failed to show that the deceased was free from contributory negligence.

The accident occurred about 7 o’clock in the morning of the 11th day of November, 1894, at a point where the State Line Railrord tracks cross Seymour street. Seymour street runs nearly east and west. The' railroad tracks run north and south, and cross Seymour street at grade about at right angles. All these tracks are near together. The deceased, so far as was disclosed by the evidence, was first seen, just prior to the accident, coming from the west, and walking easterly upon the northerly sidewalk of Seymour street. He came to the intersection of Gfrosvenor and Seymour streets, which is just west of the westerly rail of the New York Central tracks. There- are two tracks of the New York Central, crossing Seymour street. Just east of, and parallel to, the Central tracks are two tracks of the Lake Shore Railroad. Jacob Hierl and Pauline Schrobe, two of plaintiff’s witnesses, were standing at the junction of the streets mentioned, waiting for a freight train, which was running southerly upon the easterly Lake Shore track, to pass across Seymour street. Collins stood there with them for minute, and then all three continued along on the northerly side of Seymour street across the tracks of the Central Railroad, and when they came to the westerly Lake Shore track, the freight train had not yet passed over the crossing, and they halted for a moment, and then they all stepped in between the rails of the westerly Lake Shore track, the deceased being a little in advance of the others. The deceased and Hierl then looked to the north and south along the track on which he was standing, to.see if a train was approaching. They discovered a train, composed of a locomotive apd four cars, approaching on the track on which they were, from the south, close to them, Heirl and Miss Schrobe stepped or jumped back from between the rails. The deceased stepped or jumped forward, over the easterly rail, into the space between the two Lake Shore stracks. The engine passed without hitting him, but the corner of the first car behind the engine struck him. It was forty-five feet between the junction of the streets mentioned, along the northerly side of Seymour street to the first rail of the Lake Shore track. The Lake Shore tracks southerly from Seymour street were straight for a distance of about 5Ó0 feet, then they bent to the east slightly.

The deceased had been employed for a number of years as a flagman at a street crossing in the immediate vicinity of Seymour street, and musthave been entirely familiar with the railroad tracks across Seymour street, and with the running of trains. There was nothing to prevent his seeing the approaching train, had he" looked in that direction, at any time while he was walking the forty-five feet between the junction of the streets mentioned and the Lake Shore track. It was daylight at the time. The evidence and circumstances show, beyond any questisn, that he would have seen the train, had he looked in the direction from which it was coming. He walked the distance mentioned, in plain sight of the train, paying no heed to it until he was upon the track on which the train was coming, when he for the first timelooked, but it was then too late to avoid the accident. If what occurred after the deceased arrived upon the westerly Labe Shore track, and first saw the approaching train, was the only thing to be considered upon the question of his contributory negligence, a case would have been 'presented which should have been submitted to the jury. The contributory negligence on the part of the deceased, consisted in his going upon the track without having looked to see if a train was approaching. He was entirely familiar with the crossing. He knew that a train was liable at any moment to pass along the track. He knew that - the track just east of him was occupied at the time by a passing freight train, which was an obstacle to his escape in that direction. And yet, notwithstanding all this, he went upon the track without having made use of his senses to avoid danger, which he must have known was to be apprehended.

It is urged by the appellant’s counsel that the deceased had a right to assume that a train would not be running at a greater rate of speed than that fixed by the city ordinances. The rule referred to does not go to the extent of. absolving a person, when approaching a railroad crossing on which a train is liable to be running, from making use of his senses to avoid danger. Wilcox v. Railroad Co., 39 N. Y. 358; Cullen v. D. & H. Canal Co., 113 N. Y. 667 ; 23 St. Rep. 719; Grath v. Railroad Co., 59 N. Y. 468.

The judgment should be affirmed.

All concur»


text:
    William Wilcox et al., Resp’ts, v. James H. Williams et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Partnership—Specific performance,
    In the case of a partnership at will and dissolvable at the pleasure of any of the parties, equity will not interfere to enforce specific performance of the agreement of partnership.

      %. Same—Proof.
    The finding of the referee of the formation of a partnership which involves the entire ownership by the firm of the patents in question was held, in this case, to be against the weight of the evidence.
    Appeal from a judgment entered in favor of plaintiffs,
    William N. Dykman, for applt’s Williams and Redfield ; Francis Forbes and Charles T. Haviland, for applt’s Bufford and Kitson. George B. Davis and A. P. Smith, for resp’ts,
   MERWIN, J.

—On and prior to January 1, 1891, the defendants Bufford and Kitson were the owners of three letters patent, duly issued to them, one on the 15th of July, 1890, and the others on December 9, 1890, upon certain improvements in pipe tongs or chain wrenches invented by Bufford. These letters were for the term of seventeen years. In the complaint it is alleged that on or about January 1, 1891, the plaintiffs and Bufford and Kit-son entered into a copartnership under the name of the Ithaca Drop-Forge Company, for the purpose of manufacturing pipe tongs or chain wrenches that should embody the improvements covered by the said patents ; that, by the terms of the agreement of partnership, the plaintiffs were to furnish the necessary capital stock for the purpose of erecting a plant, purchasing machinery and tools, together with the necessary stock and appliances for the purpose of manufacturing the wrenches, and also furnish the necessary funds to defend any suit for infringement; that Bufford and Kitson agreed to assign to the company their letters patent, so that the partnership would be the entire owners of. the same; that Bufford and Kitson were to receive one-fifth of the profits, and the plaintiffs four-fifths; that the plaintiffs performed on their part, but Bufford and Kitson did not assign the patents, and, on the contrary, on the 19th of December, 1893, assigned the same to the defendants Williams and Redfield, who had knowledge of plaintiffs’ rights. Judgment was asked that the rights of the parties in the patents be determined; that the assignment to Wil-Siarns and Redfield be set aside, and a conveyance be made by Bufford and Kitson to the firm. This action was commenced on February 6, 1894.

The referee finds that a partnership was formed on or about January 1, 1891, and by the terms of the agreement the.plaintiffs “ were to furnish the necessary capital stock for establishing a plant, purchasing machinery and appurtenances for said purpose of manufacturing said chain wrenches, and introducing the same to the market, and also to advance to said company the funds necessary to defend any suit that might be brought for infringement of any letters patent of the United States by reason of the manufacture, use, or sale of such chain wrenches, and to prosecute infringers of said three letters patent, Nos. 432,195, 442,306, and 442,569; that, in consideration thereof, the said defendants George W. Bufford and John E. Kitson agreed to transfer and assign to said company their said three letters patent, set forth as aforesaid; and that the said copartnership was to have all right, title to, and interest in and to. the said three letters patent, and the exclusive right to manufacture and sell the said Champion chain wrench under the protection of said three letters patent; and that said Bufford and Kitson were to receive one-fifth of the said plant, machinery, patents, etc., and of the profits of said business; and that the plaintiffs were to receive the other four-fifths of the property, patents, and of said profits; that the name adopted by said copartnership was the Ithaca Drop-Forge Company, and the said copartnership since that time has been, and still is, carrying on business under that name, making and selling said chain wrenches ” ; that the plaintiffs have performed on their part, advancing large sums of money in establishing a plant, and in purchasing stock and materials, and in defending a suit for infringement ; that on the 19th of December, 1893, the defendants Bufford and Kitson, without the knowledge or consent of plaintiffs, assigned the patents to the defendants Williams and Redfield, who were not purchasers in good faith. As matter of law, it was decided that the assignment to Williams and Redfield was void; that Bufford and Kitson should execute to the firm a conveyance of the patents; and that the firm, composed of the plaintiffs and Bufford and Kitson should be adjudged to have the right and title to the patents since January 1, 1891.

It is not alleged or found that the partnership, as claimed by the plaintiffs, was for any definite period. If so, it was a partnership at will, and dissolvable at the pleasure of any of the parties. Story, Partn. § 269. McElvey v. Lewis, 76 N. Y. 373. In such a case the general rule is that 'equity will not interfere to enforce specific performance of the agreement of partnership. Pom. Spec. Perf. § 290. Equity will interfere “ only when the partnership is for a definite period, or such decree is necessary to invest one of the parties with legal rights which he could not otherwise possess.” Pars. Partn. (4th Ed.) § 205. There was undoubtedly some arrangement between the plaintiffs, either individually or as officers of a corporation hereafter referred to, and Bufford and Kitson, that resulted in the manufacture of the Champion chain wrench, embodying the improvements covered by the patents in question. It appears that a contract to furnish, a large quantity of them had been made with assent of Bufford and Kitson, and this contract to a large extent had not been filed when Bufford and Kitson transferred the patents. It may be that to enable the plaintiffs or the corporation they may have represented, or the firm, if there was one, to carry out this contract, a court of equity would give relief. It therefore becomes important to consider the question of‘what the relation was in fact between the parties.

By the judgment in this case, it is determined that there was between these parties a partnership from January 1, 1891, one of the terms of which was that the partnership should be the entire owner of the patents from that date, and have a transfer thereof from Bufford and Kitson. It is, in effect, claimed by the appellants that the finding of the existence of a partnership is against the weight of the evidence; and that, even if there was a partnership for some purposes, it was not one of its- terms that the firm should become the entire owner of the patents, or that they should be transferred to the firm. Prior to 1891 there had been formed at Ithaca a corporation under the name of the Hague Expansion Horseshoe Company, with a fixed capital of $25,000. Its members were the plaintiffs and one Hague. Machinery had been purchased, and a plant established for the .manufacture of the Hague expansion horseshoe, and it had been to some extent manufactured. The plaintiffs had furnished the money necessary to purchase the machinery and plant in the expectation "apparently of receiving therefor stock of the corporation. Ho stock seems to have been issued, and the plaintiffs claim that they never turned the property over to the corporation, and this the referee in effect finds. It is not clear from the evidence that the corporation had no interest in the property, or that the plaintiffs had any right to turn it over to a new concern, as they claim to have done. The, corporation is still in existence» Bufford and Kitson were skilled mechanics, and had been in the employ of the plaintiffs or the corporation. About January, 1891, some arrangement was made under which the manufacture of the Champion chain wrench was entered unon. The arrangement, whatever it was, was not in writing. The machinery and plant used in the manufacture of the horseshoes were used in the manufacture of,the wrenches and also other machinery purchased by the plaintiffs or made at the factory. Bufford and Kitson continued at work at the factory, and were engaged, among other things, in making dies for use in making wrenches. The wages of each were reduced from $21 a week to $12 a week, one of the plaintiffs testifying that this was to continue until they got the wrench so that it was a paying business. There was talk about a change of the name of the Hague Expansion Horseshoe Company to that of the Hague Drop-Forge Company, and quite a number of the wrenches first made were stamped as made by the Hague Drop-F.orge Company. In the spring of 1891, the name the Ithaca Drop-Forge Company was agreed on, and about that time Hague withdrew. The manufacture continued under the name of the Ithaca Drop-Forge Company, and wrenches were placed upon the market. In September, 1891, a suit for infringement was brought in the United States court by the defendants Williams and Red field against parties who were selling the wrenches, the plaintiffs and Bufford and Kitson being also defendants therein. Evidence was taken in that suit in July, 1892, and in April, 1893. That suit was pending until after the transfer to Williams and Redfield, and it was then discontinued. In the summer of 1893, Kitson left the employ of the concern. Bufford, about the same time, left for a time, but returned, and continued at work there until December, 1898, a short time before the transfer. Other work besides making wrenches was to a considerable extent being done at the factory. The wages of Bufford and Kitson seem to have been continued as they were fixed at the beginning of the enterprise. No demand seems to have been made by plaintiffs for a transfer until the latter part of 1893, when it was apparent that Bufford and Kitson were dissatisfied, and were trying to sell their patents to other parties. Shortly before this, the letter heads used in the business had been changed so as to state that the Ithaca Drop-Forge Company not only manufactured1 the wrenches, but owned the patents. This claim Bufford immediately disputed, and, after conferring with Kitson, offered to sell, the patents to others. The change in the letter head, evidently ¡ made as an afterthought, and in view of the controversy does not: aid the theory of the plaintiffs. The plaintiffs, before they started1 upon the enterprise, took advice in regard to the patents and it is1 to be presumed that they knew of the necessity of a transfer in order to perfect ownership in themselves. The failure to have a transfer before they incurred expenses reflects on the character of . the arrangement in fact made. As the title of the patents remained in Bufford and Kitson, they were presumably the owners. Chamberlain v. Chamberlain, 44 N. Y. Supr. Ct. 116.

Up to the time- Bufford left, about 7,000 wrenches had been made and put on the market, and there was an oustanding order for several thousand more. The price of the wrench was from .$2.50 to $18. It does not appear what amount of profits had¡ been made. The situation of the accounts does not appear, and no dividends were made. In January, 1891, the value of the patents in question was uncertain. They might turn out to be-valuable, or they might be worthless. The project for the manufacture of the wrenches was clearly an experiment. It is not probable that at that time the plaintiffs would be or were willing that Bufford and Kitson should have, as found by the referee, ai fifth interest in their valuable property in return for what might' be not only of no value, but a source of considerable expense. The theory as claimed by the defendants is more plausible,—that the manufacture was undertaken upon the understanding that, if it proved a success, the plaintiffs would give for the patents a certain amount of the stock of the corporation. The view is considerably corroborated by the testimony of one of the plaintiffs, given, as I infer, in 1892, in another action, to the effect that, if the wrench proved a.success, the patentees were to be given for their patents a certain amount of the stock of the company.

The true test of partnership is the intention of the parties. Pars. Partn. (4th ed.) § 54 ; Bank v. Walker, 66 N. Y. 428. Here the question is, what did the parties intend in January, 1891, when they entered upon this transaction ? If a partnership, as found by the referee, then Bufford and Kitson had the same control over the property as the other parties, and had like power to bind the members. Can it be said in this case that it was the intention •of the parties that Bufford and* Kitson should have the same powers and rights over the plant and the business that the plaintiffs had? It seems to me not.

Reference has thus far been made to some of the main features •of the case. A careful examination of the evidence leads us to the conclusion that the finding of the rpferee of the formation of a partnership which involved the entire ownership by the partnership of the patents in question as against the weight of evidence, A reversal of the judgment must follow.

Itmay.be that the plaintiffs have still some basis for relief, to give them the protection of the patents as to the wrenches contracted to be furnished with the knowledge and consent of the patentees. But this subject need not be considered here.

Judgment reversed, and new trial ordered; costs to abide the •event.

All concur»


text:
    William Connors, App’lt, v. Elmira, Cortland and Northern Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Master and servant—NEQi.ieENCE--OoNTRiBUTORT.
    A railroad company is not liable for injury to a brakeman who was in- < jural between one of its cars and a wagon, where it does not appear that such wagon had ever been left so near the track before, except once, about two weeks before the accident, but the company had no actual notice thereof, and its proximity to the track at the time or the injury could have been seen by the brakeman as he passed along the track to couple the cars, had he looked.
    S. Same—Proximate cause.
    Where the fireman might have warned the brakeman of the wagon’s proximity, the fact that there was less than the usual number of employes on the train at the time of the injury, is not the proximate cause of such injury.
    Appeal from a judgment of nonsuit, and from an order deny-a motion on the minutes for a new trial.
    T. E. Courtney, for app’lt; Kellogg & Van Hoesen; for resp’t.
   MERWIN, J.

—On the 26th April, 1892, the plaintiff was the head brakeman on a local freight train of the defendant running from Cortland to Canasfcota. He had been in the employe of the defendant for several years as brakeman or extra conductor on this train. The train, consisting of eighteen or twenty cars, arrived at Perryville about noon. About a mile northerly of Perryville there was a side track on the easterly side of the main track, about 500 feet long, called “Britt’s Siding,” made for the accommodation of a limekiln and stone quary at that place. As the train left Perryville, it was cut in two, and the plaintiff, with two or three cars and the engine, having on it the engineer and fireman, went ahead for the purpose of leaving a car at the siding. The balance of the train came on behind, it being down grade, and stopped before reaching the side track. The plaintiff, as he passed along, left one of his cars on the main track, and then proceeded to the northerly end of the side track, and' backed in onto it for the purpose of coupling onto and taking out two cars that were on the side crack. He made the coupling to one and then he walked along its side, between it and the main track, to the end of the car, and then walked on the side track about twenty-five feet to the second car; then signalled the engineer or fireman to back up, which was done, and the plaintiff made the coupling. As he stepped out from between the cars he was caught between the corner of one-of the cars and the front wheel of a wagon that stood beside the last car coupled, and received an injury which is the subject of this action. The car last coupled was a gondola coal car. During the forenoon of the day in question, Mr. Raymond, an employe of Mr. Worlock, one of the operators of the limekiln, had been engaged with team and wagon in unloading, in the usual way, the coal from the car, and drawing it to the limekiln. At noon, and about half an hour before the accident, Raymond, unhitched the teám, and left the wagon by the side of the car, between the side track and the main track, and went to dinner, inténding to come back after dinner and go on with the work.

According to the testimony of the plaintiff, the wagon was so near the car that there was not enough room for him to' stand between it and the car as he stepped out after making the coupling. He claims that the defendant i^ chargeable with negligence in allowing the wagon to be left so near. The team or wagon did not belong to defendant, and was not used by it. There is no evidence that it had ever been left so near before, except on one occasion, about two weeks before, when it was substantially in the same Situation for a period of about two hours, and no actual notice of this to the defendant is claimed. The wagon and team had been used about there before in the process of unloading cars, hut in no way dangerous to the defendant’s employes. It is difficult to see how defendant can be charged with negligence with reference to the wagon. Breil v. City of Buffalo, 144 N. Y. 163 ; 62 St. Rep. 863.

The plaintiff had for several years passed over this road twice daily, except on Sundays. He testifies :

“ 1 had worked upon this switch before. I had placed cars in there, and I had taken cars out of there; so that I knew the situation, and the locality, and the condition- that it was in, except the wagon. I knew as to what there was on the west side of the switch and on the east side of the switch."

As he came along that noon, and passed on the main track to the north end of the side track, he was on top of the cars, and passed by the coal car and by the wagon. They were about , thirty feet distant, and in plain sight. The plaintiff, as, after «coupling the first car, he passed along its side and along the side track to t'he second car, could have seen the wagon, had he looked; and so he could as he stepped out from between the two cars after he made the coupling. It is not clear that the plaintiff was himself free from negligence. See Thompson v. Railroad Co., 153 Mass. 391.

The plaintiff claims that the defendant was also negligent in that, upon the train that forenoon, there were only two brake men, whereas usually there were three, and if there had been three he might have been warned of the wagon. The plaintiff testifies, “ Left one car on the main track, so that we had one car and the «engine when we went onto the switch.” He could signal readily to the fireman, who was about sixty feet off when the last coupling was made. The side track was,on a curve, and the fireman’s side of the engine was on the inside of the curve, as was also the wagon. If the plaintiff’s signals were readily seen by the fireman, the wagon could also have been readily seen, as it was in the direct line of vision, and the fireman could have warned the plaintiff if he so chose. Very clearly, the lack of help was not the proximate cause of the collision. Williams v. Railroad Co., 39 Hun, 434.

We are of the opinion that the court did not err in holding that the evidence was not sufficient to show that the plaintiff had been injured by reason of any negligence of defendant, without any negligence on his part that contributed to the injury»

Judgment and order affirmed, with costs,

All concur»


author: MERWIN, J.—

text:
    Lysander T. Millis, as Receiver, etc., Pl’ff, v. William J. Pentelow, Deft; W. H. Gardenier, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Ittobney and client—Lien.
    An attorney who has performed some service in attempting to obtain some papers from a county clerk for a receiver, has no such interest in a cause of action in favor of the receiver and against the clerk for damages for withholding the papers, as will give him standing to ask a court to order the receiver to sue thereon.
    Appeal from an order, denying a motion for an order directing the receiver to bring action, or to permit the attorney to bring such action for his own benefit, in the name of the receiver.
    W. H. Gardenier, in pro. per ; Merrick Stowell, for resp’t.
   MERWIN, J.—

Mr. Millis was receiver in proceedings supplementary to execution. Mr. Gardenier acted as his" attorney in some litigation over property that he claimed as receiver; and in the course of that litigation the county clerk, as Mr.'Gardenier claims, was guilty of official misconduct, in failing to furnish copies of papers which were or had been on file in his office, by reason of which Millis, in his official capacity, as Mr. Gardenier alleges, was greatly damaged. On the motion upon- which the order appealed from was made, Mr. Gardenier sought to have the court to order the receiver to bring suit for this damage, or allow Mr. Gardenier to bring it in the name of the receiver, to the extent of permitting him (Gardenier) to recover, if he could, sufficient to pay him the amount of his charges in his unsuccessful efforts to compel the county clerk to furnish the required papers. The receiver was not willing that the suit should be brought, and any steps towards bringing it were not authorized by him. He opposed the motion made by the attorney, and insisted that there was no cause of action against the co'unty clerk. The judgment creditor in the supplementary proceedings was also unwilling that the suit be brought. If the application of the attorney be deemed a motion for leave to bring tl^e action, it would be a fatal objection to the application that rule 79 of the supreme court was not complied with. The cause of action is alleged to be due to Millis as receiver. The appellant claims he should have the right to enforce the claim against the county clerk, in order to enable him get pay for his services. Still, there is evidence in the papers before the special term from which that court had a right to say that the attorney had no just claim against the receiver for services. The attorney had no lien under section 66, Code Oiv. Proe., as no action had been commenced. We are referred to no authority which, under the circumstances here presented, would justify the court in directing the receiver to bring suit, and we fail to find any good reason for disturbing the order.

Order affirmed, with $10 costs and disbursements.

All concur.


text:
    David P. Lester, Resp’t, v. Delaware, Lackawanna and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Carriers—Delivery—Wrong person.
    Wliere a carrier delivers goods to the wrong person, the fact that the owner receives payment for a portion of the goods, does not, if he does not intend a waiver, constitute such waiver of such claim against the carrier for the balance.
    2. Same—Laches. ' "
    Where a carrier delivers goods to the consignee four days after notice by the real owner to the carrier’s agent, wliere the goods were, not to do so except on his written order, and the agent, in reply to such notice, and three days afterwards, advises the owner that he cannot hold the goods if demanded on a bill of lading, and to send orders through the shipping office, and the owner, on the next day, writes such agent that he wants the goods reshipped to him and he will advance freight, the owner is guilty of no laches that will prevent him from recovering from the carrier for the conversion of the goods, inasmuch as there appears to be no delay by such owner which affects the ground on which the carrier acted.

      3. Same—Demand.
    In such case, no further demand is necessary to entitle the owner to main* tain an action against the carrier for such conversion.
    4. Same—When maintained.
    In such case, it is no defense, after termination of the agency and notice by the owner not to do so, that the consignee had a lien on the goods for freight paid, where it appears that he at the time owed the owner a larger sum.
    Appeal from a judgment entered on a decision of the court rendered after trial before the court without a jury in favor of .plaintiff.
    W. & N. E. Kernan, for app’lt; D. P. Lester, for resp’t.
   MERWIN, J.

— In this case, upon a former appeal (73 Hun, 398 ; 55 St. Rep. 923) a judgment in favor of the plaintiff was reversed mainly on the ground that the plaintiff had not shown the termination of the contract between himself and his agent, O'Donnell, and therefore had not shown himself entitled to the possession of the goods which were delivered by the defendant to O’Donnell, and for the conversion of which this action was brought on the theory of a wrongful delivery by the defendant to O’Donnell. Upon the trial now under review there is evidence tending to show that, prior to the claim by plaintiff to defendant that he owned the goods, and was entitled to the possession thereof, the contract between the plaintiff and O’Donnell was terminated; and the trial court so found. The evidence upon this subject was not given upon the first trial, and the appellant claims that it is not sufficient to sustain the finding. An explanation was given by the plaintiff for its absence upon the first trial. Whether the explanation was satisfactory, and whether the evidence as given was reliable, were matters for the trial court to consider. We are of the opinion that its conclusion upon the subject should not be disturbed. It is suggested that at the time the plaintiff claimed to to terminate the contract O’Donnell had a lien on the goods for freight previously paid. It, 'however, appears that O’Donnell at that time owed the plaintiff a much larger amount for prior sales, and no tender on the part of plaintiff was necessary.

The plaintiff, after the commencement of this suit against the defendant, received from O’Donnell payment for a portion of the goods claimed to have been converted by defendant; the plaintiff, as he testifies, stating at the time that a suit was pending against the defendant, and he would take the money, and apply it on his claim. The appellant claims that in taking this payment the plaintiff recognized the right of O’Donnell to receive the goods from the defendant, and so waived his claim against the defendant for the balance. Clearly, according to the plaintiff’s evidence, there was no intent to waive his claim for the balance against the defendant. It should not be said as matter of law that there was -any waiver, or any ratification of O’Donnell’s authority to receive the goods. The defendant, by the reduction of the amount of the damages, gets all the benefit it is entitled to from the payment. We are referred to the case of Green v. Clark, 5 Denio, 497, 503, but the views of Chief Justice Beardsley, as there stated, did not meet with the approval of a majority of the court.

It is further claimed that the plaintiff was guilty of laches, and that no proper demands was made. The plaintiff, on the 6th January, 1890, sent a telegram to the freight agent of the defendant at Horwich, where the goods were, stating that the goods belonged to him, and forbidding delivery only on his written order. In reply to this the agent at Horwich sent a telegram to the freight agent of the defendant at Oswego, telling him to advise the plaintiff “that we cannot hold freight for Williams & O’Donnell if demanded on B. L. Tell him to send his orders thro’ shipping ‘ office.” This message was delivered to the plaintiff, as he testifies, on the evening of January 10th. On the 11th the plaintiff wrote a letter to the Horwich agent, saying that: “I desire the goods reshipped to Oswego at once, and, if desired, I will advance the freight. Please advise me if the request will be complied with. Should you entertain any doubt as to my right to the possession of the goods, I will furnish you with evidence showing same.” This was received by the agent on the 11th, but was not answered. On the 10th he delivered the goods to Williams & O’Donnell, they presenting the bill of lading and paying the freight. At or before the delivery the agent told Williams & O’Donnell that he had received a telegram from Mr. Lester to hold the goods, and they replied that “they had had some difficulty with him, and that accounted for that; but they would pay for the goods, or the mat-, ter would be all straightened out; ‘pay for the goods,’ they said.” The agent at Horwich seems to have acted on the theory that the bill of lading was conclusive as to the right of Williams & O’Donnell to receive the goods, although he then had notice of the claim' of plaintiff. It is not now claimed by the defendant that this position is tenable. Hor is it apparent that there was any delay or laches on the part of the plaintiff that could affect the ground or reason on which defendant acted. It is conceded that plaintiff was the owner of the goods, and he was entitled to the possession if the contract between him and O’Donnell was terminated. ' The plaintiff in that case had the right to treat the delivery as wrongful, and, if so, it amounted to a conversion (McEntee v. Steamboat Co., 45 N. Y. 37, 39), and no further demand was necessary (Delameter v. Miller, 1 Cow. 75 ; Boyce v. Brockway, 31 N. Y. 493; Campbell v. Parker, 9 Bosw. 326). As the case now stands, we find no good ground for reversing the judgment

Judgment affirmed, with costs.

All concur.


author: HARDIN, P. J.

text:
    Olney L. Stiles, as Administrator, etc., Resp’t, v. John Benjamin, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Damages—Assignment.
    Where a mortgagee receives money on an agreement to assign a mortgage on payment o£ the full amount thereof and then assigns it to another person, the measure of damages is the amount so paid him.

      Appeal from a judgment in favor of plaintiff,
    More & Scott, for app’lt; W. & G. W. Youmans, for resp’t.
   HARDIN, P. J.

—July 21, 1886, Frances E. Ufford executed and delivered to the defendant her bond, and mortgage as collateral thereto, to secure the sum of $1,700, upon property described in the mortgage, situated in the village of Deposit. On the 17th of August, 1887, plaintiff’s testatrix, then bearing the name of Mary L. Chase, entered into a negotiation with the defendant in respect to the said mortgage, and on that day she advanced to him the sum of $1,500, and took from him a written instrument containing the following language;

“Received from Mary L. Olíase one thousand five hundred dollars as a payment on bond and mortgage from Mrs. F, E. Ufford to me of four thousand seven hundred dollars, to be received and applied by me thereon, as between me and said Mrs. Chase, In ■order to protect Mrs. Mary L. Chase for any payments she now makes or may hereafter make, I agree when the money received by me shall amount to the full amount payable by said bond and mortgage, principal and interest, at the request of said Mary L. Chase, and payment by her of all expenses, to transfer and assign to her the said bond and mortgage, unsatisfied as to all payments made by her, to enable her to hold the same as a security for the money so advanced by her,—the intent and understanding being that, as between us, the payment, shall be absolute; Mrs. Chase having no rights, except the right above provided, of assignment on payment to and receipt by me of the whole amount.

“Dated, August 17, 1887.” John Benjamin.

Subsequently payments were made,—on July 2,1888, $500; July 25,1889, $500; May 26, 1890, $100; October 27,1891, $200; and September 4, 1893, $10. Mary Stiles, nee Chase, died, leaving a last will and testament,which was admitted to probate, and the executor therein named having died, the plaintiff was appointed and qualified as administrator with the will annexed in February, 1894. It is alleged in the complaint that in March, 1894, the plaintiff tendered to the defendant the amount remaining unadvanced upon said mortgage, and demanded that the defendant execute to him an assignment of the bond and mortgage “in pursuance of the agreement.” And it is alleged the defendant neglected and refused to execute the said assignment. And it is alleged in the complaint that thereafter the defendant sold, assigned, transferred, and delivered to one Cook the bond and mortgage, who became the owner and holder thereof, and who commenced an action to foreclose the. same. Defendant, in hia answer, admits the execution of the agreement, substantially as set out in the complaint, and he also admits that he, “ before the commencement of this action, sold, assigned, transferred, and delivered to David B. Cook said bond and mortgage by an instrument in writing conveying his interest therein; and he shows upon information and belief, that the interest of said Gumming and Taylor in said bond and mortgage was also assigned to said Cook.” It appears by the evidence that the bond and mortgage had their origin at the time of concluding a litigation theretofore existing affecting the real estate described in the mortgage, and that the conveyance made by the defendant to Ufford was apparently in consideration of $3,700, and a mortgage was taken back to cover that sum, together with “$1,000 added to the purchase price of the property” to satisfy the claims of Taylor and Gumming, who had acted as counsel in the litigation, and in that agreement settling the lawsuit it was expressly agreed that the defendant should have $3,700 in a bond and mortgage, and that “the same shall be paid from the first payments made thereon.” Taylor assigned his interest in the mortgage to Cook on the 4th of January, 1894, and Gumming assigned his interest in the the mortgage to Cook by an instrument bearing date July 28,1886. When the defendant received the payment of July 24, 1888, he executed another instrument, containing similar language to that found in the instrument of August 17, 1887, and when he received the payment of $500 in July, 1889, he executed another instrument, containing similar language, mutatis mutandis. Upon the trial it was conceded that the total amount of advances made by the testatrix amounted to $2,800. According to the evidence given on the trial the plaintiff had an interview with the defendant on the 27th of January, 1894, as to paying the balance of money and taking an assignment of the mortgage. The plaintiff states that interview in the following words:

“The morning of the 27th of January, 1894, Mr. Benjamin said ‘I have got to assign that mortgage to Cook.’ And I said, ‘What is the reason we can’t raise the money? And I said, ‘We can raise the money in 24 hours, the whole $4,700.’ He said, ‘I can’t sell it to you,’ and went out. He went off and said he couldn’t sell it to us. One time before that he agreed to sell it to me. * * * He afterwards declined to transfer the mortgage to me and said he had got to assign it to Cook and did assign it to Cook.”

The defendant, as a witness, disputes the tender, and states there was some conversation looking to his foreclosing the mortgage and bidding the property in to protect the interest of the estate represented by the plaintiff. The court has resolved the conflict in the evidence in that regard in favor of the plaintiff, and we see no occasion upon looking into all the circum&tances'disclosed in the evidence, to question the propriety of the findings made favorable to the plaintiff after applying the rule which has so frequently been applied where the evidence in conflicting. See Smith v. Mc-Cluskey, 45 Barb. 610. On the 3d of February, 1894, the defendant assigned, by a written instrument bearing that date, the bond and mortgage, “for a good and valuable consideration to him in hand paid, * * * bearing date the 21st day of July, 1886, made by Frances E. Ufford to me, said John Benjamin, to secure' tho payment of the sum of $4,700.” That assignment was acknowledged, and under it Cook acquired possession, and claimed to own the mortgage, and commenced an action to foreclose the same.

We think "the agreements made by the defendant with Mrs. Chase were to the effect that the defendant would sell to her the bond and mortgage. The agreement made by him was broken. The excuse the defendant gave for breaking the contract was “that there was a contract made” to the effect that he would assign the mortgage to Cook. We think the excuse is entirely insufficient. The defendant, when he undertook with the testatrix to give to her an assignment of the bond and mortgage, and received her money in pursuance of the arrangement that he should transfer and sell the mortgage to her, became liable to carry out his contract, and it was his fault that he did not put a condition or qualification in the agreement if one was needed, that in the event he was not required to assign it to Cook, he would assign it to her. He made an undertaking that for the money he would assign to her the bond and mortgage. He failed to do so. She has suffered damages by reason of his failure to the extent of the amount of moneys which she has paid upon the contract, which he now fails to fulfill, and whether the action be regarded as one for breach of contract, and damages in consequence thereof to the extent of the money which she has paid, or whether it be regarded as an action for money had and received, because of the failure of the party to perform his agreement,—the rule of damages adopted by the trial judge is right Smith v. McCluskey, 45 Barb. 615. In that case Bodies, J., said:

“There is no doubt but that the defendants had a right of action for the money paid by them on the contract. The contract had not been fulfilled. The party with whom they contracted had not performed his part of the agreement, and they liad a right of action to recover their damages by reason of such omission. Their damages, too, were the sums of money they had paid on the contract. * * * Such money could be recovered back in an action for breach of the agreement.” Thompkins v. Dudlev, 25 N. Y. 272; Ward v. Hudson River Building Co., 125 N. Y. 236; 34 St. Rep. 934; Stewart v. Stone, 127 N. Y. 507; 40 St. Rep. 314.

.Undoubtedly the action for money had and received is totee disposed of upon equitable grounds. Otis v. Crouch, 89 Hun, 551; 69 St. Rep. 646. Applying the rule that is applicable to such an action, we are of the opinion that in equity and good conscience the defendant “ ought not to retain the money” which, ex equo et bono, belongs to the plain till. Nor do we think the circumstances that the plaintiff’s testatrix may have had some information that the defendant was under some stringent obligation to assign the bond and mortgage to Taylor and Gumming, or some interest therein, was sufficient to defeat this action. The defendant deliberately put it out of his power to comply with his agreement made with the testatrix, and, having done so, he ought to return the money which he received from the testatrix, advanced in the faith that she was to have an, assignment therefor of the bond and mortgage in question. We are satisfied with the views given by the trial judge in determine the case at the circuit, and we are of the opinion that his conclusion is just and equitable.' Judgment affirmed, with costs.

All concur. .


author: MARSHALL,

text:
    William R. Stewart et al., Pl’ffs, v. Thomas F. Keating et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April, 1895.)

    1. Wills—Powers—Execution.
    Where a power is executed in disregard oí the limitations imposed by the instrument creating the power of appointment, the attempted .execution is ineffectual.
    2. Same—Remedy.
    Resort cannot be had to equity to supply defects in the execution of a power.
    3. Same—Construction.
    The intent to execute a power of appointment must be apparent and clear, so that the transaction is not susceptible of any other interpretation ; but¡ if it is doubtful, .under all the circumstances, such doubt will prevent it from being an execution of the power.
    Action by Wm. R. Stewart and others against Thomas F. Keating and others, for partition; the plaintiffs claiming under the will of William G. Rhinelander, as heirs at law of Julia Rhine-lander, and the defendants claiming through the will of Julia Rhinelander. Hearing before referee.
    Bowers & Sands (John M. Bowers, of counsel), for pl’ffs; Robert C. Cornell, guardian ad litem ; Francis C. Huntington, for def’ts.
   MARSHALL,

Referee. —The rights of the parties to this litigation depend upon the determination of the question as to whether or not it was the intention of Julia Rhinelander to execute the power of appointment conferred upon her by the will of her father, William 0. Rhinelander, and, if so, whether the attempted execution was valid and operative. Her father died on July 9, 1978, and by his will, after making various specific bequests, including a legacy to each of his surving children-of $30,-000, he devised and bequeathed all the residue and remainder of' his estate, real and personal, of every, name, nature, and description, to his executors and trustees and their survivors, upon the special trust and confidence to take possession of and get in his. residuary personal estate, and to enter upon his residuary, real! estate, and" to divide such residuary, personal, and real estate into, as many shares as there were children him surviving. The will1 then provides:

11 In the event that my daughter Julia survive me, I direct my-said executors to apply the income of one of said shares of my estate to her use during her natural life; and from and after her death I devise and bequeath the said share unto such of my lineal descendants as she may by any last will and testament, appoint, and, in default of such appointment, to her heirs at law and next of kin.”

The estate of William 0. Rhinelander consisted of lands exceeding in value $1,000,000, and several hundred thousand dollars’ worth of personal property, consisting of bonds, mortgages, and other securities. The executors and trustees named in his will took possession of the residuary estate, and administered the trust reposed in them with respect to the share as to which a life use was created for the benefit of Julia Rhinelander. She died on October 11,1890, leaving a last will and testament, bearing date May 13, 1890, the fifth clause of which reads as follows . .

“ All the rest, residue, and remainder of my estate, both real and personal, wherever situated, whether devised to me by my uncle P. Rogers, or by my father, William 0. Rhinelander, or acquired by me in some other way, I direct shall be divided into five equal parts by my executors hereinafter named, to be held by my executors in trust to apply the rents, issues, and profits of one of such parts to the use of my nephew William R. Stewart; the rents, issues, and profits of another such part to the use of my nephew Lispenard Stewart; the rents, issues and profits of another such part to the use of my nephew T. J. Oakley Rhinelander; the rents, issues, and profits of another such part to the use of my nephew Philip Rhinelander; and the rents, issues, and profits of the remaining part to the use of my niece, Mary Stewart WiHierbee,—all of them being linéal descendants of my father, William 0. Rhinelander, deceased. And for the purposes of such division, at any time when they shall think best, I authorize the executors named in this my will; the survivors and survivor of them, to enter into any agreement for the partition and division of any property in which I may be interested in common with others, and-to divide the same as may seem to them proper, and to execute such conveyances for the purpose of carrying out and making such partition as they may think expedient. Upon the death of either of my said nephews or of my said niece, leaving issue him or her surviving, the portion or part held to the use of the one so dying shall be divided equally among his or her children, share and share alike; the share of each such child who shall not have attained his or her majority to be held by my executors in trust for such child until he or she shall, respectively, arrive at the age of twenty-one years, and, as each such child arrives at that age, to be paid over accordingly. If either one of my said nephews or my said niece shall die leaving uo children him or her surviving, then the share set apart and held for the one so dying shall be equally divided among the then living children of my other said nephews and of my niece, the share of each such child (children of my said nephews and of my niece) who shall not have obtained majority to be held by my executors in trust for such child until he or she shall respectively, attain the age of twenty-one years, and as each child arrives at that age, to be paid over accordingly. In the event that at the time of the death of either of my nephews, or of my niece, who are named as beneficiaries under this my will, neither my said niece nor either of my said nephews shall have any child or children, nor any one of them upon their death shall have left any child or children then surviving, in such case I give the moneys and property held by my executors and trustees to the use of the nephew or niece so dying to the children of my cousin Frederick W. Rhinelander, to be equally divided between them, the issue of any deceaaed child to take the share the parent would have taken if living.”

Unless this provision operates as an appointment under the will of William 0. Rhinelander, there has been a default in making such .appointment, and the absolute ownership of the property which is the subject of the power, upon her death, became vested, in equal shares, in her sisters, Serena Rhinelander and Mary Rhinelander Stewart, and in her brother, William Rhinelander, as her heirs at law and next of kin.x" The first question that naturally arises is whether the testatrix intended by her will to avail' herself of the power conferred upon her by her father. To ascertain such intention, it is important to consider the extent, character, and condition of her property. Under the will of George P. Rogers, a maternal uncle, she was the owner in fée of an undivided one-fourth interest in real estate largely exceeding in value the sum of $500,000. A partition suit involving" this property had been instituted, which, at the time of her"death, had not progressed further than to the appointment of a receiver of the rents and profits of the lands sought to be partitioned. She also had acquired by purchase other real estate, the value of which exceeded! $100,000. She had also inherited lands worth several hundred! thousand dollars from her grandfather. Her personal property at the time- of the execution of her will amounted to more than $100,000, and consisted of bonds and mortgages and government securities. In addition to the legacy of $80,000 received by her under her father’s will, she realized annually from 1878 to 1890,. as her share of the income of the trust estate created by his will,, the sum of $40,000. The language of the fifth clause of her will' •is therefore clearly satisfied without referring to the property to! which the power of appointment related. She was the absolute ! owner of property that was devised to her by her uncle George P. Rogers. She had acquired absolutely, under the will of her father, a legacy of $30,000, and under his will, for twelve successive years, she had collected an annual income of $40,000, derived from his real estate. She had in other ways acquired other property. Of all this she sought to make disposition in the manner, specified. She referred to the property thus dealt with as “ the, rest and residue of my estate.” She spoke of it as property “ devised to me,” or “acquired by me.” The power created by her, father’s will is not restated, nor is there any reférence to it, directly or indirectly. Under'the English authorities, this circumstance would be conclusive against an interpretation attributing to the testatrix an intention to exercise the power of appointment conferred upon her. In Jones v. Curry, 1 Swanst. 66, the will of one having a power to dispose of a fund consisting partly of real estate, and partly of household furniture, linen, and plate, and personal property, and which contained a gift of all of my estate and effects, of whatsoever denomination, and of my household furniture, with linen and plate,” was held not to be an execution of the power, although her individual estate was of nominal value only, and was insufficient to satisfy the bequest contained in her will. In Evans v. Evans, 23 Beav. 1, a married woman, having a limitd testamentary power of appointment of personalty, made her will, whereby, without referring either to her power, or to the property subject to it, she professed to dispose “of the property and income I am now or may become possessed of,” and she then gave “ her property ” to her husband and her children. She died six years thereafter, at which time she had, independently of the property subject to the power, £93 of arrears of income, and a contingent reversionary interest in some trust moneys. The will was nevertheless held not to operate as an execution of the power. In Noel v. Noel, 4 Drew. 624, the testator, Charles Noel, being entitled to certain personal property derived indirectly through the wills of his father, Thomas Noel, and of Lord Wentworth, settled part of it, reserving a power of appointment, on his children, leaving a fractional part in himself. He made his will, whereby he “gave, devised, and bequeathed all the real and personal estate whatsoever and wheresoever situated, which he in any manner derived or because entitled to by or through the will of his father, or the will of Lord Wentworth or either of them, unto his two daughters,” exclusive of his other children. It was held that the fractional part reserved to himself satisfied the language of the gift, and that it was not an execution of his special power. To the same effect is Wildbore v. Gregory, 19 Wkly. Rep. 967; L. R. 12 Eq. 482. The rule laid down in some of these cases has by statute been abrogated, and now, where a general power of appointment is conferred, a general devise of the real estate of the testator operates as an execution of the power, unless a contrary intention appears. But, so far as special powers are concerned, the doctrine illustrated by the cases cited remains in full force. The,subject of the execution of the power is fully discussed in Blagge v. Miles, 2 Story, 426, Fed. Cas. No. 1,479. The rulé there laid down is that if the donee of a power intends to execute it, and the mode be in other respects unexceptionable, the intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and positive; that the intention to execute the power must be apparent and clear, so that the transaction is not susceptible of any other interpretation ; but if it be doubtful, under all the circumstances, then that doubt will prevent it from being an execution of. the power. This case was approved in Lee v. Simpson, 134 U. S. 572, 589. An excellent collection of cases illustrating this rule is contained in 18 Am. & Eng. Enc. Law, tit. “Powers,” pp. 930-936. In this state the question as to whether or not a power of appointment is exercised is made a question of intention, by express ■ statutory enactment. In 1 Rev. St. p. 737, § 124, it is provided:

“ Every instrument executed by the grantee of a power conveying any estate or creating a charge which such grantee would have no right to have or create unless by virtue of his power shall be deemed a valid execution of the power although such power be not recited or referred to therein.”

Section 126 provides:

“Lands embraced in a power to devise shall pass by a will purporting to convey real property of the testator" unless the intention that the will shall not operate as an execution of a power shall appear.expressly or by necessary implication.”

The same rule has been judicially declared to be applicable to personality as reality. Hutton v. Benkard, 92 N. Y. 295.

The case of Mutual Life Insurance Co. v. Shipman, 119 N. Y. 324; 29 St. Rep. 742; presents a clear interpretation of the scope and purpose of these provisions. It was held that the first of these sections was not intended to change the existing rules of law, and that whenever, in addition to a power, the grantee thereof has an independent interest in property, whether legal or equitable, the rule of the statutes does not apply, .and the1 instrument will not be deemed an execution of the power, but only a conveyance of the independent interest. There, a will devised property to a woman so long as she should remain testator’s widow, and, upon her death or marriage, to their children. The widow was made executrix, and the will authorized her to make advances frorp the property, from time to time, in her discretion, to the children, for maintenance and support, and empowered her to mortgage, lease, and dispose of such property for the purpose'of carrying into effect the provisions of the will. The widow remarried, and subsequenty mortgaged the real estate, in her individual name, to secure a loan. The mortgage contained no reference to the character of the mortgagor, as executrix, or to the power to mortgage contained in the will. It was held that the mortgage was to be deemed restricted to the individual interest bf the mortgagor, as dowress, and not as an exercise of the power conferred by the will. In White v. Hicks, 33 N. Y. 383, it was distinctly held that, where a power of appointment was conferred, the intention of the donee of the power to exercise, or not to exercise, the power, was to be gathered from such circumstances as indicated the state of mind of the donee of the power. The case of Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1,479 was cited with approval; and the decision turned upon the intention to be deduced from the state of the testator’s property at the time of the alleged execution of the power, viewed in connection with the language of his will. There is no language in the will of Julia Ehinelander which expressly declares it to be her intent not to execute the power conferred upon her, but such intent is deducible1 therefrom by necessary implication. As was said by Mr. Justice Strong in Blake v. Hawkins, 98 U. S. 326:

“After all, an appointment under a power is intent to appoint, carried out; and, if made by a will, the intent and its execution are to be sought for through the whole instrument.”

The intention of Julia Ehinelander becomes apparrent when we consinder the nature of the estate to .which the power of appointment was attached, and the power conferred by Jalia Rhinelander upon her executors with respect to the property of which she made disposition. (1) By the will of her father, all of his residuary estate was made the subject of a trust which involved the division of such estate into four shares. Each of these related to an undivided one-fourth of such residue, and the income from each fourth was payable to one of his children during life, 'and the power of appointment was given as to each of such fourths, to one of his children. Julia Rhinelander had no power to partition this property during her life. Neither could she confer upon her executors the right to partition the property which was the subject of this trust. Yet, by her will, after directing that her residuary estate should be divided into five equal parts by her executors, she declared that, for the purposes of such division, at any time which they should think best, they might enter into any agreement for the partition and division of any property in which she might be interested in common with others, and to divide the same as might seem to them proper, and to execute such, conveyances for the purpose of carrying out such provision as they might think expedient. This provision of her will was fully satisfied when applied to the property which she derived from the will of her uncle George P. Rogers, and to such other real estate which belonged to her" in her own right, however acquired. 'But it certainly could not have had reference to the share of trust estate created by her father’s will over which she had the power of appointment. (2) By her will she further empowered her executors to make investments of any of her estate, real and perso lal, in first-class bonds and mortgages on improved real estate, or in certain government bonds, or in railroad bonds of a specified description. While she had the right to permit her own property .to be converted into money, and to be invested in such manner as she saw fit, she had no right whatsoever to direct the conversion of any of the real estate which was the subject of th& power into personality, or to invest such proceeds, or any part of the personality constituting the share of her . father’s estate of which she enjoyed the income, in such speculative securities as " railroad bonds. (3) She further conferred upon her executors the power to lease any part of her real estate for not exceeding two terms of twenty-one years each, and if they deemed expedient, for the purpose of increasing the rents of any part of her real estate, to make improvements on the same by building, rebuilding, or altering buildings. She gave them both the power to make such improvements, and to apply towards defraying the expenses thereof any part of her personal estate. It is inconceivable that she should' have intended to permit her executors to lease any portion of the real estate which constituted a part of her father’s residuary estate for the period forty-two years, or to use any portion of his- personality in paying for improvements upon her real estate. (4) She further gave to her executors power to sell and convey any or all of her real estate at such times, to such persons, and ’ upon such terms as they might deem advantageous.. It is impossible to believe that she could have assumed the right to authorize -the sale of any of the realty which constituted a portion of her father’s estate, but it is rather tobe inferred that in this provision, as in-all others, the word “ my,” which is repeated and reiterated on every occasion where in her will she refers to any property whatsoever, was intended to refer to property owned by her in her own right, and not to property to which she had not the semblance of legal title. None of these extraordinary powers are included in the simple power conferred upon her by the will óf William 0. Rhinelander with respect to his property. That was expressly confined to the bestowal of the right to make appointment unto such of his lineal descendants as she might designate. The power of disposition thus given did not relate to property to be dealt with as she saw fit, but to specific property, as it existed, not at the time of the death of the donee, but at the death of the creator of the power. (5) But the intention of the testatrix becomes even more apparent when it was considered that under her will, in a certain contingency, the property of which she seeks to make disposition is to go to the children of her uncle Frederick W. Rhinelander, who are not lineal descendants of William G. Rhinelander, her father, but1 are related in' a collateral degree only. It is not possible that' Julia Rhinelander could have believed that she was exercising the, power of appointment under her father’s will when she created a trust during, the lives of his lineal descendants, and made it possi- . ble for the absolute ownership of the property which was the subject of the power to vest in his collaterals. To ascribe such an intention to the testatrix would impute to her a deliberate purpose of violating the express wishes of her father, and a total disregard of the limitations imposed upon the created power, — a purpose which she is not to be deemed for a moment to have entertained.

But, assuming that Julia Rhinelander attempted to exercise the power of appointment bestowed upon her by the will of her father, she failed in her attempt to execute such power; and her will, so far as it may have sought to dispose of the property which was the subject of the power, is inoperative, void, arid of no legal effect. The power was not a general power, but was special and limited in its character. It enabled the donee to devise and bequeath the property in which she had a life estate “ unto such of my lineal descendants as she may, by any last will and testament, appoint.” She was therefore limited in respect to the persons to» whom she might devise and bequeath the property, and the manner in which she could dispose of the same. The power of appointment was to be exercised by her last will and testament, and' by devise and bequest to the lineal descendants of the. testator.. Instead of thus disposing of the property, the testatrix sought to, ¡ create five trusts,—one in favor of each of her four nephews, and' * one in favor of her niece. These trusts were to continue during, ; the lives of her 'nephews and niece designated in her will, and,’ upon the death of either of them, provision was made for the distribution of the property so held in trust among the children of the deceased nephews or niece, provided such children had attainéd majority; otherwise the trust was to continue until such children should, respectively, arrive at the age of twenty-one. In the event of the death of either of the nephews or the niece without children, provision was made for the distribution of such trust estate among the children of the other nephews or of the niece; and, in the event that none of the nephews or the niece left any child or children, the property which was the subject of the power of appointment was to go to the children of the cousin of the testatrix, Frederick W. Rhinelander, who was not a lineal descendant of William 0. Rhinelander, the creator of the power. The disposition thus made of the property did not constitute a devise or bequest to the lineal descendants of William 0. Rhinelander, within the meaning of the will. The legal title of the property was vested in trustees during the lives of the four nephews and the niece mentioned, and such trusts were to continue, in a certain contingency, after their death. This cannot be deemed to be the equivalent of a devise or bequest to the lineal descendants of William Gf: Rhinelander. Not content with this departure from the manifest purpose of the creator of the' power of appointment, the will provides that, in a contingency not all unlikely to occur, the property which was expressly intended for his lineal descendants was given to those who were related to him in a collateral degree only; thus nullifying his purpose, and bestowing upon col-laterals that which was intended to be enjoyed by his lineal descendants. While there is comparatively little authority in the American courts on this subject, it is nevertheless quite apparent that such execution of the power of appointment is ineffectual. In Stuyvesant v. Neil, 67 How. Prac. 16, a deed of trust empowered the donee to apportion by will, or other instrument, in writing, certain property among her-children and their descendents; and, in default of such appointment, the property was to be divided equally among her children who might be living, and their descendants, if any should have died leaving lawful issue. It was held that she could not, under the power conferred, limit the trust estate to an estate for life in her children, with remainder to their issue, but was required to apportion the property itself, and all rights incident to ownership, and not a limited interest therein. In reaching this conclusion, stress was laid upon the provision contained in the deed of trust relative to the disposition of the subject of the power in the event of the donee’s failure to exercise it. See, also, Wickersham v. Savage, 58 Pa. St. 365 ; Pepper’s Appeal, 120 id. 235 ; Loring v. Blake, 98 Mass. 253. The English authorities also bear out the proposition that where a power is limited, as in the present case, an attempt to exercise it in a manner foreign to that described in the power of appointment is ineffectual at law, although chancery will sometimes enforce a defective execution of a power. In Farw. Powers (Ed. 1893) p. 235, the author says:

“ Where the power is limited, it appears to be a question of construction whether the power authorizes a direction to transfer the fund to other trustees. An appointment of a fund standing in the names of trustees, to other trustees, in trust for some of the objects, may be a good equitable execution, so far as the interests'of the appointees are concerned, but the machinery adopted may exceed the power. The appointees’ beneficial enjoyment is not affected, but the trustees of the original settlement will not get a good discharge, in such a case, if they transfer the fund to the new trustees. * * * A settlor or testator who vests funds in trustees, and provides machinery for filling up vacancies in their number, may well be taken to, have intended that the fund shall remain in the custody of the persons to whom he has intrusted it. until some beneficiary absolutely entitled is ready to receive it, although he has giver power to another to say who that beneficiary " shall be. He may well trust, say, his daughter to select which of her children shall take the fund, and yet not desire her to nominate trustees who are to hold it” Busk v. Aldam. L. R. 19 Eq. 16, Von Brockdorff v. Malcolm, 30 Ch. Div. 172 ; Scotney v. Lomer, 31 Ch. Div. 380.

These authorities are quite in point when it is considered that, under the system of law regulating powers which prevails in this state, resort cannot be bad to equity to supply defects in the execution of a power. Hence, if a power is executed in disregard of the limitations imposed by the instrument creating the power of appointment, the attempted execution is ineffectual. This is made clear by the' notes of the revisers in 3 Rev. St. (2d Ed.) p. 591, where they say:

“The strictness of courts of law in requiring literal observance with the most trifling forms is not more remarkable than the power assumed by the court of chancery of dispensing in similar cases with the most necessary. Indeed, there is nothing more calculated, to excite our surprise than the extraordinary jurisdiction which has been exercised by courts of equity in supplying the defective execution of powers. * * * The present state of the law in relation to the execution of powers leads us to attach a peculiar importance to the rules which we have proposed on the subject. These rules will not only render the system of alienation consistent, but, as it seems to us, will relieve the execution of powers from any serious embarrassment, and, by avoiding -the extreme rigor to which courts of law have been carried, remove any necessity or pretext for the interference of equity.”

While English cases may undoubtedly be found in which the court of chancery has sustained an appointment to trustees where the power did not expressly confer the right to appoint to trustees, there will be discovered peculiarities of language or an absence of limitation which were deemed sufficient to indicate a purpose on the part of the testator not to exclude such a mode of executing the power of appointment. Here, however, there is every reason to believe that the testator intended that, upon the death of his daughter Julia Rhinelander, such of his lineal descendants as she might select should have the immediate and absolute enjoyment of his property, without the intervention of trustees. Reference to, other portions of his will so indicates. The provision made with respect to the share of his property which was devised in trust during the life of his daughter Mary Rhinelander Stewart was to give the absolute title thereto to her children after death. So with ¿respect to the share given in trust during the life of his son William. Rhinelander. Upon his death the absolute ownership of the share was given to his children, Oakley and Philip Rhinelander, ijulia and Serena Rhinelander never having married, the testator ¡evidently intended to leave it to them to select such of his lineal ¡descendants as they might see fit to make the recipients of his 'bounty; and there is no more reason for supposing that he intended that they should defer the beneficial enjoyment of these shares of his estate until after the termination of á series of trusts than that he so intended with respect to the shares which the remainders were devised and bequeathed to the heirs at law and next of kin of Mary Rhinelander Stewart and William Rhine-lander.

For these reasons, I am of the opinion that the complainants are «entitled toa decree of partition as prayed for in the complaint, and that their rights as heirs at law and next of kin of Julia Rhine-lander are to be determined by the provisions of the ■ instrument executed on March 28, 1891, wherein the heirs at law and next of kin of Julia Rhinelander provided for the disposition of the property as to which she possessed the power of appointment.