text:
    Joseph P. McTeague, App’lt, v. Mary McTeague, Impl’d, Resp’t.

      Samuel J. Crooks, for app’lt; Charles M. Earle, for resp’t.
    Judgment affirmed, with costs.
   All concur, except Haight, J., absent.

Affirming 33 N. Y. State Rep., 401.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Probate of Last Will, etc., of Caleb De Melt, Dec’d.

      Gabriel L. Smith, for app’lt; William A. Finch, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 31 N. Y. State Rep., 1003.


text:
    Robert Gedney, App’lt, v. Julia A. Prall et al., Resp’ts.

      George W. Weiant, for app’lt; A. & A. X. Fallon, for resp’ts.
    Judgment affirmed, with costs.
   All concur.

Affirming 35 N. Y. State Rep., 343.


text:
    Lucien S. Crandall, App’lt, v. Ernest R. Barron et al., Ex’rs, Resp’ts.

      Wm. P. Goodelle, for app’lt; A. P. Smith, for resp’ts.
    Order affirmed and judgment absolute rendered against appellant, with costs.
   All concur, except Brown, J., absent.

Affirming 83 N. Y. State Rep., 880.


text:
    In the Matter of the Probate of Will of Sarah Gray, Dec’d.

      E. A. Carpenter, for app’lts; Timothy M. Griffing, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 34 N. Y. State Rep., 345.


text:
    Willoughby Derr, App’lt, v. Alonzo B. Cooley et al., Resp’ts.

      A. J. Abbott, for app’lt; James Wood for resp’ts.
    Judgment affirmed, with costs.
   All concur, except Bradley and Haight, JJ., not sitting.

Affirming 47 Hun, 631 mem.


text:
    John P. Magovern et al., App’lts, v. Evolin B. Robertson et al., Resp’ts.

      Wm. H. Henlerson, for app’lts; A. C. Pickard, for resp’ts.
    Judgment reversed and new trial granted, with costs to abide event on opinion in 116 N. Y., 61; 36 N. Y. State Rep., 613.
   All concur, except Bradley and Haight, JJ., not sitting.


text:
    Filed October 13, 1891.
    James E. Crisfield, Supervisor, Resp’t, v. John Hyland, Impl’d, App’lt.
    Motion to direct return of remittitur denied, without costs.
   See 38 N. Y. State Rep., 831.


text:
    William H. Hussey, Resp’t v. Weeks W. Culver et al., App’lts.
    Motion to strike from calendar denied, with ten dollars costs.
   See 30 N. Y. State Rep., 836.


text:
    Charles H. Adams, App’lt, v. The City of Cohoes, Resp’t.
    Motion for re-argument denied, with ten dollars costs.
   See 38 N. Y. State Rep., 678.


text:
    Filed October 20, 1891.
    Caroline K. Brennen, Resp’t, v. The City of Buffalo, App’lt.

      Spencer Clinton, for resp’t; Frank C. Laughlin, for app’lt.
    Judgment affirmed, with costs.
   All concur, except Vann and Haight, JJ., not voting.


text:
    Florence Campbell, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.

      N. A. Calkins, for app’lt; Hamilton Harris, for resp’t.
    Judgment affirmed, with costs. All concur.
   Affirming 21 N. Y. State Rep., 685.


text:
    Sherwood Sterling, Resp’t, v. The Metropolitan L. Ins. Co., App’lt.

      L. A. Fuller, for resp’t; Wm. H. Arnoux, for app’lt.
    Judgment affirmed, with costs.
   All concur.

Affirming 17 N. Y. State Rep., 694.


text:
    James G. Knapp, App’lt, v. Preferred Mutual Accident Association of New York, Resp’t.

      Taber & Brainard, for app’lt; E. C. Aiken, for resp’t.
    Appeal dismissed, with costs. (Williams v. I)., L. & W. B. B. Co., 37 N. Y. State Rep., 143).
   All concur.

See 26 N. Y. State Rep., 986.


text:
    Filed October 27, 1891.
    Conrad Stubing, Resp’t, v. John Stubing et al., Impl’d, App’lts.

      Fernando Solinger, ior resp’t; Leopold Leo, for app’lts.
    Judgment affirmed, with costs.
   All concur.

Affirming 25 N. Y. State Rep., 951.


text:
    John M. Young, Resp’t, v. The Metropolitan R’way Co. et al., App’lts.

      Charles Gibson Bennett, for resp’t; Brainard Tolles, for app’lts.
    Judgment affirmed, with costs.
   All concur.

Affirming 27 N. Y. State Rep., 986.


text:
    William B. Rice, App’lt, v. Atmore L. Baggot, Resp’t.

      Geo. S. Hastings, for app’lt; Moses Goodman, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 27 N. Y. State Rep., 181.


text:
    Casper Dort, App’lt, v. Eva Nicken, Resp’t.

      Myron H. Peck, for app’lt; Fitch & Braunlein, for resp’t.
    Order reversed and judgment entered on decision of special term affirmed, with costs, on opinion of Daniels, J., at special term.
   All concur. Reversing 26 N. Y. State Rep., 471.


text:
    The Manhattan R’way Co., App’lt, v. John M. Cornell, Resp’t.

      Samuel H. Benton, for app’lt; Tallmadge W. Foster, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 27 N. Y. State Rep., 300.


text:
    Isaac Wolf, an Infant, App’lt, v. The Houston, West St. & Pavonia Ferry R. R. Co., Resp’t.

      Max Altmayer, for app’lt; Charles E. Miller, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 19 N. Y. State Rep., 763.


text:
    James G. Tinsley et al., Resp’ts, v. Paul Weidinger, App’lt.

      M H. Cardozo, for resp’ts; Edmcurd W. S. Johnston, for app’lt.
    Motion to dismiss appeal denied, without costs.
   See 29 N. Y. State Rep., 140.


text:
    Jean Baron et al., Resp’ts, v. Isidore S. Korn, App’lt.

      Lewis Sanders, for app’lt.
    Motion for re-argument denied, with, ten dollars costs.
   See 38 N. Y. State Rep., 140.


text:
    Ella L. Rigney, Resp’t, v. Thomas G. Rigney, App’lt.

      J. A. Shoudy, for resp’t; Hamilton Wallis, for app’lt.
    Motion for re argument denied, without costs.
   See 40 N. Y. State Rep., 210.


text:
    Filed October 30, 1891.
    Samuel E. Merwin et al., App’lts, v. Andrew Jackson Rogers, Resp’t.

      J. H. Hildreth and Noah Davis, for app’lts; Jas. C. De La Mare, for resp’t.
    Judgment affirmed, with costs. All concur.
   Affirming 28 N. Y. State Rep., 404.


text:
    Thomas Oties, Resp’t, v. The Cowles Electric Smelting & Aluminum Co., App’lt.

      Wm. C. Greene, for resp’t; E. H. Ashley, for app’lt.
    Judgment affirmed, with costs.
   All concur.

Affirming 26 N. Y. State Rep., 869.


text:
    Levi S. Noyes, App’lt, v. William Turnbull et al., Resp’ts.

      Edward, E. Bullard, for app’lt; Jesse J-ihnson, for resp’ts.
    Judgment affirmed, with costs, on opinion of Learned, P.J., at general term.
   All concur.

Affirming 26 N. Y. State Rep., 66.


text:
    Alfred S. Lascelles et al., Resp’ts, v. John Miller, App’lt.

      A. Gallup, for resp’ts; John A. Deady, for app’lt.
    Judgment affirmed, with costs. All concur, except Haight, J., absent.
   Affirming 27 N. Y. State Rep., 125.


text:
    David H. Lewis, Resp’t, v. Simon Bache et al., App’lts. David H. Lewis, Resp’t, v. Henry Cahn et al., App’lts.

      Chas. H. Griffin, for resp’t; Alex. Blumenstiel, for app’lts.
    Judgment affirmed, with costs. All concur, except Haight, J., absent.
   Affirming 28 N. Y. State Rep., 405.


author: Per Curiam

text:
    Supreme Court—General Term—First Department.
    Filed October 16, 1891.
    James F. Malcolm, Resp’t, v. The Manhattan Railway Co., App’lt.
    Appeal from judgment of the special term granting injunction unless certain damages are paid.

      J. E. Lord, for app’lt; E. W. Tyler, for resp’t.
   Per Curiam

All the questions of any moment involved in this appeal have already been frequently passed upon by this court, and it is not necessary now to rediscuss them.

Upon an examination of the evidence in respect to the amount of damages awarded, no injustice to the defendants appears to have been done. The theory which is attempted to be asserted, that the defendants are entitled to be credited with benefits, has been heretofore sufficiently discussed so as not to need further elaboration.

The judgment should be affirmed, with costs.


text:
    Ezra Haskell et al., Resp’ts, v. Robert W. Drummond, App’lt.
    Appeal from order denying motion to make complaint more definite and certain.

      Abel Crooke, for app’lt; S. G. Reed, for resp’t.
   Per Curiam

The allegation in the complaint being only that an action has been commenced and a certain complaint served therein, a copy of which is annexed, and that being the only issue tendered, there is nothing to be made more definite and certain;

The order appealed from should, therefore, be affirmed, with costs.


text:
    General Term—Third Department.
    Filed September 25, 1891.
    Warren B. Collamer, Resp’t, v. Albert W. Farrington, App’lt.
   Motion to go to court of appeals denied.


author: Mayham, J.,

text:
    Patrick E. Walsh, Resp’t, v. The Mutual Life Insurance Co., App’lt.
    Motion to go to court of appeals granted.
   Mayham, J.,

not acting.


text:
    The People ex rel. The Brush Illuminating Co., App’lt, v.Edward Wemple, Comptroller, Resp’t.
   Motion to amend granted.


text:
    The People ex rel. The Edison Electric Light Co., App’lt, v. Edward Wemple, Comptroller, Resp’t.
    Motion of attorney-general denied. Motion of relator to amend by restoring further sum of $67.40 granted.


text:
    Jeffrey Paris, Resp’t, v. The Village of Green Island, App’lt.
   Motion to amend denied.


text:
    In the Matter of Andrew Jubin, a Lunatic.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    The Fire Department of Kingston, Resp’t, v. John P. Derrenbacher et al., App’lts. Same v. John P. Derrenbacher. (2 cases).
    Order affirmed, with ten dollars costs and printing disbursements.
   Mayham, J.,

not acting.


text:
    James M. Smith, Ex'r, App’lt, v. Frank Pelott, Resp’t.
   Judgment affirmed, with costs. Appeal [rom order of referee dismissed, with ten dollars costs.


text:
    George W. Crooks, Assignee, Resp’t, v. The Milwaukee & Michigan Ins. Co., App’lt. George W. Crooks, Assignee, Resp’t, v. American Cent. Ins. Co., App’lt.
   Each order affirmed, with ten dollars costs and printing disbursements.


text:
    The People ex rel. E. P. Howe, Resp’t, v. The Trustees of Saratoga Springs, App’lts.
   Resolution of trustees designating two newspapers reversed, with fifty dollars costs and disbursements.


text:
    Orlando P. Dexter, App’lt, v. William D. Dustin et al., Resp’ts.
   Judgment reversed and new trial granted on the issues ordered as for mistrial. Costs to abide event.


text:
    Charles W. Weston, Resp’t, v. Rufus C. Landon, App’lt.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    James C. Birge, Resp’t, v. The Berlin Iron Bridge Co., and other cases.
   Order for stay granted. See order on file.


text:
    Philip J. Warner, Resp’t, v. The Schoharie & Schenectady Counties Mutual Fire Insurance Association, App’lt.
   Motion to go to court of appeals denied.'


text:
    Henry Schwartz, App’lt, v. Valeria Pomeroy, Resp’t.
   Judgment of county court affirmed, with costs.


text:
    Patrick J. Connors, Infant, Resp’t, v. William Walsh, App’lt.
   Judgment and order affirmed, with costs.


text:
    John Dillon, Resp’t, v. William Lee, App’lt.
   Judgment and order affirmed, with costs. Landon, J., not acting.


text:
    Herbert J. Pelkey, Resp’t, v. Charles H. Carnrick, App'lt.
   Judgment affirmed, with costs.


text:
    Alexander H. Kerr, Resp’t, v. Mary Hammer, App’lt.
   Motion for reargument denied.


text:
    Beulah Rouse, Infant, App’lt, v. The Catskill & New York Steamboat Co., Resp’t.
   Judgment affirmed, with costs.


text:
    General Term—Fourth Department.
    Filed October 3, 1891.
    Anna V. Borden, Adm’rx, App’lt, v. The Delaware, Lackawanna & Western Railroad Co., Resp’t.
   Judgment affirmed, with costs.


text:
    Morris Coleman, Adm’r, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    Joanna E. Eustace, App’lt, v. John Shoemaker, Resp’t.
   Judgment of the county court reversed and that of justice’s court affirmed, with costs.


text:
    George Minor, Resp’t, v. Clark N. Brown et al., App’lts.
   Judgment affirmed, with costs.


text:
    Leonard Gardner, Resp’t, v. George H. Northrup, App’lt.
   Judgment of the county court of Madison county and the justice’s court reversed, with costs.


text:
    The Village of Oneida v. The Board of Supervisors of Madison County.

      Held (1) The act of the legislature under which the claims of the plaintiff are made is constitutional. (2) The claims of §60.60 and interest thereon from the 1st day of June, 1883, and of §71.42 and interest thereon from the 1st day of June, 1884, are barred by the statute of limitations. (3) The plaintiff is entitled to recover the claims not so barred mentioned in the first question stated in the submission with interest thereon from the several dates mentioned in said questions, and judgment therefor is ordered for the plaintiff against defendant, with costs.
   The formula of the judgment may be settled before Hardin, P. J., upon five days notice.


text:
    The People, App’lts, v. Stephen W. Jones, Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the estate of Sidney Smith, Deceased. Adon Smith et al., App’lts; Henry M. Aylesworth, District Attorney, Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Hope A. Lemon, Resp’t, v. Adon Smith et al., App’lts. Richard O. Smith et al., Resp’ts, v. Adon Smith et al., App’lts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Daniel Shaver, Resp’t, v. Allie Shaver, Ex’r, et al., App’lts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Thomas Heslan et al., App’lts, v. William W. Fowler et al., Resp’ts.
   Order affirmed, with costs. Mem. by Hardin, P. J., Merwin, J., not sitting.


text:
    William Hughes, Ex’r, et al., App’lts, v. George Bingham et al., Resp’ts.
   Judgment affirmed, with costs.


text:
    Sarah L. McCoy, Resp’t, v. The California Ins. Co,, App’lt.
   Judgment and order affirmed, with costs.


text:
    John Leonard, App’lt, v. James F. Herrick et al., Resp’ts.
   Judgment and order affirmed, with costs.


text:
    The People, Resp’ts, v. The Milk Exchange (Limited), App’lt.
   Interlocutory judgment overruling a demurrer to the complaint affirmed, with costs, with leave to the defendant to answer upon payment of the costs of the demurrer and of the appeal.


text:
    William Curtis, Adm’r, App’lt, v. The Rome, Watertown & Ogdensburg Railroad Co., Resp’t.
   Judgment affirmed, with costs.


text:
    George E. Wood, Supervisor of the Town of Stockbridge, v. The Board of Supervisors of Madison County.
   Meld (1) The act of the legislature under which plaintiff’s claims are made is constitutional and valid. (2) The claims mentioned in the third question stated in the submission are barred by the statute of limitations. (8) The plaintiff is not entitled to recover the items paid for state taxes mentioned in question one, except those barred as above stated, and judgment therefore is ordered for the plaintiff against the defendants, with costs. The form of judgment to be settled before Hardin, P. J., upon- five days’ notice.


text:
    Ross Spring, Resp’t. v. The Life Union, App’lt.
   Judgment and order affirmed, with costs.


text:
    In the Matter of Ambrose H. Carpenter, Creditor, App’lt, for leave to sell the real property of Eleanor Greenly, deceased; Edward Sabins et al., Resp’ts.
   Decree of the surrogate’s court reversed and a new hearing ordered before the surrogate’s court, with costs to abide the event. Meld, that the evidence does not show such a dispute and the rejection of the claim as to bring the case within the provision of § 1822 of the Code of Civil Procedure.


text:
    Mary E. Owens, App’lt, v. Joel A. Owens, Resp’t.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    Mary E. Owens, Resp’t, v. Joel A. Owens, App’lt.
   Judgment and decision modified by striking therefrom the award of costs to the plaintiff, and, as so modified, affirmed, without costs of the appeal to either party.


text:
    Margaret Rhodes et al., Adm’rs, v. The Elmira, Cortland & Northern Railroad Co., Resp’ts.
   Judgment of the county court of Tompkins county affirmed, with costs.


text:
    In the Matter of the Will of Joseph Van Orman, Deceased. Thomas Van Orman, App’lt; Jacob Van Orman, Resp’t.
   Decree modified by striking therefrom the award of costs personally against the appellant, and by inserting in lieu thereof a provision charging the same upon and payable out of the estate, and as so modified affirmed, without costs of this appeal to either party.


text:
    Angeline A. Shouten, Resp’t, v. The Town of Lapeer, App’lt.
   Order affirmed, without costs.


text:
    Samuel R. Mott, Supervisor of the Town of Madison, v. The Board of Supervisors of the County of Madison.
   Meld (1) That the resolutions of the board of supervisors mentioned in question one, stated- in the submission, do not prevent the county from inter-. posing the statute of limitations. (2) That the plaintiff is entitled to recover the taxes appropriated within six years prior to February 7, 1891, the date of the submission, with interest; and judgment therefor is ordered in favor of the plaintiff against the defendant, with costs. The formula of the judgment to be settled upon five days’ notice before Hardin, P. J.


text:
    In the Matter of the Probate of the Last Will of Mary Ann O’Brien, Deceased. James Donlon, App’lt, Patrick F. Bulger et al., Resp’ts.
   Decree and decision modified by limiting the construction of the twentieth provision of the will to the personal estate, and as so modified affirmed, with costs to the appellant payable out of the estate.


text:
    The Watertown National Bank, Resp’t, v. The Fonda Lake Paper Co., App’lt.
   Judgment affirmed, with costs.


text:
    Ellen A. Vaughan, Resp’t, v. Walter Hughes, App’lt.
   Judgment of the county court of Madison county, affirming a justice’s judgment, affirmed, with costs.


text:
    Winfield H. Bossout, Resp’t, v. The Rome, Watertown & Ogdensburg Railroad Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    Morris S. Miller, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.
   Judgment and order reversed and new trial ordered, with costs to abide event. JIdd, Whether the plaintiff’s servant at the time of the accident was guilty of contributory negligence was a question of fact, and should have been submitted to the jury.


text:
    Stephen B. Banks et al., App’lts, v. William M. Bentley, Resp’t.
   Appeal dismissed, with ten dollars costs and disbursements. (See Kincaid v. Richardson, 25 Hun, 237; Herman v. Stalp, 24 N. Y. State Rep., 40; Dieffenbach v. Rach, 112 N. Y., 621; 21 N. Y. State Rep., 570.


text:
    George M. Johnson, Resp’t, v. The Utica & Mohawk Railroad Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    Jacob Block and Simon Block, Resp’ts, v. Stewart L. Devendorf, App’lt.
   Order reversed, with ten dollars costs and disbursements, and motion granted.


text:
    John J. Vedder, App’lt, v. J. Peter Davis and Robert J. Davis, Resp’ts.
   Judgment of Herkimer county court affirmed, with costs.


text:
    Marion Shead, App’lt, v. Jeremiah Bauter and Margaret C. Bauter, Resp’ts.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    Alfred Wilkinson, Jr., Resp’t, v. Charles E. Hubbell, Rec’r, App’lt.
   Order affirmed.


text:
    Charles McCarthy, App’lt, v. Joseph M. Shipway, Trustee, Resp’t.
    Judgment of the county court reversing a justice’s judgment affirmed, with costs.
   Held (1) That the justice’s court committed an error in refusing to strike out the evidence relating to the plaintiff’s personal services, as the plaintiff was not entitled to recover for his perso-.al services in the absence of an agreement on the part of the district. (2) The weight of the evidence is to the effect that plaintiff’s hi 1, when presented to the school meeting, was rejected by the meeting.


text:
    Wealthy M. Dexter, App’lt, v. John N. Sharp, Resp’t.
   Judgment affirmed, with costs.


text:
    Peter Kissel, Resp’t, v. James Casey, App’lt.
   Judgment and order affirmed, with costs.


text:
    William W. Hare, App’lt, v. John K. Follet, Resp’t.
   Judgment and order affirmed, with costs.


text:
    William Duffus v. Eli T. Bangs.
   Motion denied, without costs.


text:
    Almira N. Strever, Resp’t, v. Orrin R. Earl, App’lt.
   Motion for leave to appeal to the court of appeals denied; motion for re-argument denied.


text:
    Hattie E. Van Allen, Resp’t, v. James H. Glass et al., App’lts.
   Motion denied.


text:
    Jane A. Sherman, Resp’t, v. Thomas P. Sherman, App’lt
   Order affirmed, with ten dollars costs and disbursements.


text:
    Sidney Wilder, Resp’t, v. Henry C. Ballou, Ex’r, App’lt.
   Order modified by striking out the ten dollars costs, and as so modified affirmed, without costs to either party to this appeal.


text:
    Wilson H. Gardenier, App’lt, v. Hiram Eldred, Resp’t.
   Order entered in Oswego county, May 13,1891, vacated, and an order settled and filed with the clerk of Oneida county.-


text:
    Fifth Department.
    Filed October 23, 1891.
    Frederick Monk, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.
   Judgment and order appealed from affirmed on authority of Glushing v. Sharp, 96 N. Y., 676; Palmer v. N. Y. C. & H. R. R. R. Co., 112 id., 234; 20 N. Y. State Rep., 904; Oldeiiberg v. Same, 36 N. Y. State Rep., 402. Lewis, J., not sitting.


text:
    John Fahy et al., App’lts, v. James C. Fargo, as President of the American Express Co., Resp’t.
   Reargument ordered. Dwight, P. J., not sitting.


text:
    Maria Moeller, Adm’rx, Resp’t, v. H. Austin Brewster et al., App’lts.
   Judgment and order appealed from affirmed. Macomber, J., not voting.


text:
    In the Matter of Charles E. Opdike, Jr., an attorney at law.
   Report of referee confirmed; the respondent removed from the office of attorney and counselor at law and his name struck from the roll. Opinion by Lewis, J.

       Not for publication.


text:
    Emma K. Enos, Resp’t, v. John A. Enos, App’lt.
   Judgment and order appealed from affirmed.


text:
    Nicholas C. Newerf et al., Resp’ts, v. Thomas A. Jebb et al., App’lts.
    Judgment appealed from affirmed, with costs.
   See opinion on former appeal, 6 N. Y. Supp., 581; 23 N. Y. State Rep., 31.


text:
    Michael Gormley, Adm’r, App’lt, v. The Grand Trunk Railway Co. of Canada, Resp’t.
   Order granting new trial affirmed, with costs to abide the event.


text:
    George C. Carpenter et al., Resp’ts, v. The German American Insurance Co., App’lt.
   Judgment and order appealed from affirmed.


text:
    Nancy E. Pickard, App’lt, v. James Carr et al., Resp’ts.
   The court declines to consider this appeal, submitted without argument at the June term, for the reason that it nowhere appears that- the case has been settled and ordered filed by the judge before whom the action was tried. Code Civ. Pro., § 997; Rule 35 of General Rules of Practice; McNish v. Bowers, 30 Hun, 214; Reese v. Boese, 92 N. Y., 632. The stipulation annexed to the case is not sufficient.


text:
    In the Matter of George Benson, a supposed lunatic.
   Appeal dismissed, with ten dollars costs and disbursements, it having been made to appear that the alleged lunatic has died since the finding of the inquisition, and that no property rights are involved in the appeal.


text:
    Joseph W. Hastings et al., App’lts, v. The Ætna Insurance Co., Resp’t.
   Judgment appealed from affirmed.


text:
    Matilda Adams, App’lt, v. Sarah Jane Green et al., Resp’ts.
   Judgment appealed from affirmed upon the merits, with costs.


text:
    Eliza Rice et al., Resp’ts, v. John W. Calkins et al., App’lts.
   Motion granted, with ten dollars costs, unless appellants serve appeal papers within twenty days after service of the order to be entered on this decision, and pay ten dollars costs of making the motion.


text:
    William Savage et al., Resp’ts, v. The City of Buffalo, App’lt.
   Motion for certificate under sub. 4 of § 190 of Code of Civil Procedure granted.


text:
    Cyrus D. Angell, App’lt, v. William Van Schaick et al., Resp’ts.
   Motion under sub. 4 of § 190 of the Code of Civil Procedure cannot be entertained until the return made to the court of appeals has been remitted to this court for that purpose.


text:
    People v. Newton A. Drown.
   Motion to amend order denied.


text:
    People v. James J. Thompson.
   Motion to amend order denied.


text:
    Henry N. Fultz, App’lt, v. George Paul et al., Resp’ts.
   Motion for reargument granted.


text:
    Lawrence Green, App’lt, v. Henry W. Watson, Resp’t.
   Motion for leave to appeal to court of appeals denied.


text:
    George P. Brand v. James R. McMahon.
   Motion for reargument denied.


text:
    New York Common Pleas—General Term.
    Filed June 22, 1891.
    Estelle Leoncioni, Resp’t, v. Edward S. Post, App’lt.
    Appeal from judgment of the eleventh district court. Affirmed April 6, 1891.
   Motion for reargument or for leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    Edward Sutorius, App’lt, v. Isaac F. North, Resp’t.
    Appeal from special term order made by Hon. J. F. Daly, Oh. J., decided March 2, 1891.
   Motion for reargument denied with ten dollars costs.


text:
    Filed June 25, 1891.
    Thos. M. Isted, Resp’t, v. Mary J. Stockton, App’lt.
    Appeal from judgment of the district court.
   Judgment affirmed, with costs.


text:
    Michael L. Rodkinson, Resp’t, v. Frank Conner, App’lt.
    Appeal from judgment of the district court.
   Judgment reversed, new trial ordered, without costs to either party.


text:
    Michael Lobenthal et al., Resp’ts, v. Simon H. Prince, App’lt.
    Appeal front judgment of the seventh district court.
   Judgment affirmed, with costs.


text:
    Meyer Cohen, Resp’t, v. Abraham Edelson, App’lt.
    Appeal from judgment of the fifth district court.
   Judgment affirmed, with costs.


text:
    Thos. F. Devine, Resp’t, v. The Protective Live Stock Mutual Benefit Association, App’lt.
    Appeal from judgment of the eleventh district court.
   Judgment affirmed, with costs.


text:
    Edward Dalton, Resp’t, v. Jas. J. Dougherty, App’lt.
    Appeal from judgment of the second district court.
   Judgment affirmed, with costs.


text:
    Morris Malawista, Resp’t, v. Angelo Pacilco, App’lt.
    Appeal from judgment of the fourth district court.
   Judgment affirmed, with costs.


text:
    Arthur Boylan, Resp’t, v. Wm. H. McCaffrey et al., App’lt.s
    Appeal from judgment of the third district court.
   Judgment affirmed, with costs.


text:
    Samuel Nichols et al., Resp’ts, v. John Sheehy et al., App’lts.
    Appeal from judgment of the ninth district court.
   Judgment affirmed, with costs.


text:
    Rowland W. Thomas v. Jas. H. Whitelegge.
    Appeal from judgment of the district court.
   Judgment affirmed, with costs.


text:
    Margaret Rimmer v. The Royal Oak Benefit League.
    Appeal from judgment of the district court.
   Judgment reversed, new trial ordered, costs to abide the event.


text:
    Thos. Cunningham v. John Smith.
    Appeal from judgment of the district court.
   Judgment reversed, with costs.


text:
    Filed July 6, 1891.
    Fanny Boehm, Resp’t, v. Moses Shedlinsky, App’lt.
    Appeal from first district court.
   Per Curiam

The item of $14.45 damages to range and bursting of water pipes through freezing, which appears to he included in the amount for which the jury rendered their verdict for plaintiff was too remote and should have been disallowed, and delendant’s exception to the refusal of the justice to instruct the jury to disallow that item requires a reversal of the judgment appealed from unless plaintiff stipulates to reduce his recovery to that extent.

Judgment reversed and new trial ordered, with costs to abide the event, unless plaintiff stipulates to reduce the verdict and judgment appealed from by $14.45 in which event the judgment in the reduced amount is affirmed, without costs of this appeal.


text:
    Davis Rubin, Resp’t, v. Michael A. Elias, App’lt.
    Appeal from judgment of the second district court.
   Judgment affirmed, with costs.


text:
    The Occidental Oil Co., Resp’t, v. Annie V. Young, App’lt.
    Appeal from judgment of the first district court.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    Robert Henderson, Resp’t, v. Joseph D. Lynch, App’lt.
    Appeal from judgment of the eighth district court.
   Judgment reversed, new trial ordered, with costs to abide event.


text:
    The Mayor, Resp’t, v. Wm. F. Ehrsam, App’lt.
    Appeal from judgment of the third district court.
   Motion for reargument denied, without costs.


author: Pryor, J.| Bischoff, J.

text:
    Filed November 4, 1891.
    S. Charles Welsh, Ex’r, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.
    Motion for reargument.

      G. Willett Van Nest, for the motion; Julian T. Names and Samuel Blythe Rogers, contra.

   Pryor, J.|

We have reserved the decision of this motion in the expectation that the point upon which the reversal of the judgment proceeded would be authoritatively adjudicated by the court of appeals in the disposition of the Gray ease. But, as the court has determined that case without passing upon the question in controversy, we do not deem it proper to delay still further the decision of the motion.

In order to a re-argument, the moving papers must exhibit “clearly, that ■some question decisive of the case, and presented by counsel, has been overlooked by the court, or that the decision is inconsistent with some statute, or with a controlling decision, to which the attention of the court was not drawn through the neglect or inadvertence of counsel.” Rule 16; Fosdick v. Town of Hempstead, 126 N. Y., 651; 37 N. Y. State Rep., 130. By reference to the opinion on the reversal of the judgment, it will be seen that the decisión of the court was based exclusively on the ground that the learned trial judge rejected evidence of benefits to the propeity in litigation, and, in the computation of damages, disallowed any credit for such benefits. Now, upon this point, we are not aware that the court overlooked any “ question decisive of the case; ” and we are equally certain that our decision is not inconsistent with any statute or controlling adjudication to which, through tne neglect or inadvertence of counsel, our attention was not drawn. Not otherwise than by the modesty of the learned counsel for the respondent can any defect be imputed to his brief or his argument.

Upon his argument in support of the present motion, it is quite obvious that his criticisms involve the merits an l validity of the reversal, and that, however prevalent they may be with the appellate tribunal, they present no ground for a reargument in th:s court.

Motion denied.

Daly, Ch. J., and Bischoff, J., cone r.

Howard A. Sperry, Resp’t, v. Theodore Hellman et al., App’lts.

Respondent’s motion for reargument.

Howard A. Sperry, for resp’t; Seligman & Seligman, for app’lts.

Bischoff, J.

The motion papers do not disclose, any of the grounds specified i i rule 16 of the general term rules upon which a reargument may be allowed and this motion is for that reason denied. The question involved in this appeal is, however, of sufficient importance to merit the attention of the court of appeals and respondent may, if he so desires it, have leave to appeal to that court. No costs of this motion.

Daly, Ch. J., concurs.


text:
    New York Superior Court—General Term.
    Filed July 2, 1891.
    Pendleton v. Johnston.
   ■Motion denied, with ten dollars costs.


text:
    Deitsch v. Schanning et al.

   Motion denied, with ten dollars costs.


text:
    Sutorius v. Dunstan.
   Motion denied, with ten dollars costs.


text:
    Burt, Adm’rx, v. Lustig et al.

   There being no proof that the case has been ordered on file after settlement, or that an order is in force declaring the case abandoned, the motion must hi denied, with ten dollars costs.


text:
    Fitch v. Armour.
   Motion denied, with ten dollars costs.


text:
    Pooley v. Senior.
   Motion granted, with ten dollar; costs.


text:
    Morrison v. The Press Publishing Co.
   Motion for leave to appeal to the court of appeals granted.


text:
    Filed October 10, 1891.
    Pegram v. The New York Elevated R. R. Co.
   Mol ion denied, with ten dollars costs.


author: Dugro, J.

text:
    Charles G. Gabrielson, Resp’t, v. Frederic Waydell et al., App’lts.
    Exceptions ordered to be heard in the first instance at the general term, and .an appeal from an order denying defendants’ motion for a new trial.
    The action was brought to recover damages for personal injuries received by •plaintiff at the hands of the captain of the bark Rebecca Caruana while upon the high seas. 1

      If. B. Hoxie, for app’lts; George P. Gorclel, for resp’t.
   Dugro, J.

A careful examination of the case fails to disclose merit in any exception taken at the trial. The law applicable to the facts presented by the evidence was correctly stated at the trial by the learned judge who presided. The charge was full and fair, and afforded all needed protection to the rights of the parties. The motion for a new trial was properly denied. Defendants’ exceptions are overruled and judgment is ordered for the plaintiff upon the verdict, with costs. Gildersleeve, J., concurs.


author: Dugro, J.|

text:
    Charles C. Bauer, Resp’t, v. The Consumers’ Ice Co., App’lt.
    Appeal from a judgment' entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The action was brought to recover damages for personal injuries received by the plaintiff, and occasioned by the negligence of one of the defendant’s drivers, and resulted in a verdict of $5,000 in favor of the plaintiff.

      Bachman, Morgenthau & Goldsmith, for resp’t; Edwm'ds & Odell, for app’lt.
   Dugro, J.|

This is an appeal from a judgment in plaintifí’s favor entered upon a verdict, and from an order denying a motion'for a new trial. A careful examination of the case discloses no error. The case required the submission of the evidence to the jury. The charge was fair and presented the questions to be determined clearly and impartially. The requests to charge were sufficiently covered for the purposes of the case in .the charge of the learned trial judge, and no injustice was done the defendant by the refusals to charge except as had been charged.

Upon the whole case the judgment and order should be affirmed, with costs. Freedman and Gildersleeye, JJ., concur.


author: Martin, J.

text:
    Jane Nelson, App’lt, v. Isabella McDonald, Ann Green et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    Will—Error in executing.
    Plaintiff and her bushand desiring to make wills in favor of each other, two wills were drawn exactly alike except as to names of the beneficiaries. Each signed one; the usual formalities followed, and the witnesses signed at their request. On the death of the husband it was found that each had signed the will intended for the other. In an action to reform the husband’s will so as to conform to his intention, Beld, that the court had no power to correct the mistake; that the husband died intestate, and that the action was properly dismissed.
    Appeal from' a judgment entered in Onondaga county, March 17, 1891, dismissing the plaintiff’s complaint, with costs.
    In November, 1885, John and Jane Nelson, who were husband and wife, and who resided in the city of Syracuse, N. Y., employed one Oowie to draw their wills, each giving all his or her property to the other. The wills were drawn at the house of the parties and read to them. They were then laid upon the table for them to sign, and each signed one of the wills. Each was then asked if the paper signed by him or her was his or her last will and testament. Each said it was, and then each asked the subscribing witnesses to sign the paper executed by him or her as such, which they did. The wills were then placed in an envelope, which was sealed until after the de.ath of John Nelson, which occurred in the following year. After his death the envelope containing the wills was opened, and it was then first discovered that each had signed the will intended for the other. The wills were as follows:
    “'The last will and testament of Jane Nelson, of the city of Syracuse, county of Onondaga, and state of New York:
    “ I, Jane Nelson, being of sound mind and memory, aware of the uncertainty of life and the certainty of death, and desirous of making an equitable and proper disposition of my property at my decease, I do make, ordain, publish and declare this to be my last will and testament, in manner and form following, that is to say: After payment of all my lawful debts, I give, devise and bequeath all my estate, of every name and nature and wheresoever situated, both real and personal, to my beloved husband, John Nelson.

      “ Likewise, I make, constitute and appoint my said husband, John Nelson, to be my executor of this my last will and testament, hereby revoking all former wills by me made.
    “ In witness whereof, I have hereunto subscribed my name and affixed my seal the eleventh day of November, in the year of our Lord one thousand eight hundred and eighty-five.
    “ John Nelson, [l. s.]
    “ The foregoing instrument was at the date thereof subscribed by ' Jane Nelson, the testator therein named, in the presence of us and each of us. She, at the time of making such subscription, acknowledged that she executed the same, and declared the said instrument so subscribed by her to be her last will and testament Whereupon we, at her request, and in her presence, and in the presence of each other, do hereby subscribe our names as witnesses, thereto.
    “ William Oowie, residing- at Syracuse, N. Y.
    ‘“James Hunter, residing at Danforth, N. Y.”
    “ The last will and testament of John Nelson, of the city of Syracuse, county of Onondaga, and state of New York: I, John Nelson, being of sound mind and memory, aware of the uncertainty of life and the certainty of death, and desirous of making an equitable and proper disposition of my property at my decease, I do make, ordain, publish and declare this to be my last will and testament, in manner and form following, that is to say : After payment of all my lawful debts, I give, devise and bequeath all my estate, of every name and nature and wheresoever situated,, both real and personal, to my beloved wife, Jane Nelson. Likewise, I make, constitute, and appoint my said wife, Jane Nelson, to be my executrix of this my last will and testament, hereby revoking all former wills by me made.
    “ In witness whereof I have hereunto subscribed my name and affixed my seal, the eleventh day of November, in the year of our Lord one thousand .eight hundred und eighty-five.
    “ Jane Nelson, [l. s.]
    , “ The foregoing instrument was, at the date thereof, subscribed by John Nelson, the testator therein named, in the presence of us and each of us. He, at the time of making such subscription, acknowledged that he executed the same, and declared the said instrument so subscribed by him to be his last will and testament. Whereupon we, at his request, and in his presence, and in the presence of each other, do here by subscribe our names as witnesses thereto.
    “William Cowie, residing at Syracuse, N. Y.
    “James Hunter, residing at Danforth, N. Y.”
    On the trial at special term, the court held that neither of the papers set forth in the complaint was the last will and testament of John Nelson; that the plaintiff was not entitled to the relief demanded in the complaint, and the complaint was dismissed, with costs.

      E. S. Wright, for app’lt; Alexander & Green, for resp’ts.
   Martin, J.

The manifest of this action was to correct the mistake of the decedent in signing the wrong will. In other words, it was to reform the will signed by him, by changing the provisions therein so as to make them conform to the provisions contained in the will which he intended to sign.

The appellant contends that authority to maintain such an action is given by § 1866 of the Code of Civil Procedure, which provides : “ The validity, construction, or effect, under the laws of the state, of a testamentary disposition of real property, situated within the state, or of an interest in such property which would descend to the heir of an ititestate, may be determined, in an action brought for that purpose, in like manner as the validity of a deed purporting to convey land may be determined. * -x- * »

This statute was under consideration in the case of Anderson v. Anderson, 112 N. Y., 104; 20 St. Rep., 344, and it was there held that a devisee of a legal estate, in possession of the property devised, could not maintain an action to establish a will against the heirs-at-law ; that courts of equity in this state have no inherent jurisdiction to entertain such an action, and it is not given by the provisions of the Code (§§ 1866, 1867), authorizing the determination “ in an action brought for that purpose ” of the questions as to “ the validity, construction or effect under the laws of this state of a testamentary disposition of real property; ” and that these provisions refer, not to the validity of the will making the disposition, but simply to the validity of the disposition so made. In discussing the effect of this statute, Peckham, J., said : “ This language would seem to provide for the case of a devise contained in an instrument where due and proper execution is assumed, but which devise was to be adjudged good or bad as it should be determined that it was in accord with or against the law upon the subject of such devise.” Under the doctrine of this case, we regard it at least as very doubtful if this action could be maintained.

If, however, we assume that the court had power to entertain such an action, we then come to the question whether it was authorized to grant the relief sought. The plaintiff conténds that the court had the power, and it was its duty to have held that the will signed by the decedent might be changed or reformed, and to have reformed it, so as to make it conform in all respects with the will which he intended to, but through mistake failed to execute. The following authorities are cited as justifying this contention. Mellish v. Mellish, 4 Ves., Jr., 45; Philipps v. Chamberlaine, id., 51; Door v. Geary, 1 id., 255; Wood v. White, 32 Me., 340; Thomas v. Stevens, 4 Johns. Ch, 607 ; Connolly v. Pardon, 1 Paige, 291; Ex parte Hornby, 2 Bradf, Surr., 420; Smith v. Smith, 1 Edw. Ch., 189; Pocock v. Redinger, 108 Ind., 573 ; Milner v. Milner, 1 Ves., 107; Redfern v. Bryning, L. R., 6 Ch. Div., 133; Sweeting v. Prideaux, L. R., 2 id., 413 ; Barber v. Wood, L. R., 4 id., 885; Mellor v. Daintree, L. R., 33 id., 198; Cloak v. Hammond, L. R., 34 id., 255; Salt v. Pym, L. R., 28 id., 153; In the Goods of Bushell, L. R., 13 Prob. Div., 7; Morrell v. Morrell, L. R., 7 id., 68; Pond v. Bergh, 10 Paige, 140; Lefevre v. Lefevre, 59 N. Y., 434; Hiscocks v. Hiscocks, 5 M. & W., 363; St. Luke’s Home v. Ass'n for Indigent Females, 52 N. Y., 191; Trustees, etc., v. Colgrove, 4 Hun, 362; Peters v. Porter, 60 How. Pr., 422; Patch v. White, 117 U. S., 210.

When the cases cited are examined, it will be found that each case involved the question of the proper construction to be given to the particular will under consideration, and the most that can be claimed as established by these cases is that courts in construing wills may, to carry out the intent of the testator, in certain cases and under certain circumstances, transpose, supply or change the words of a will, and, in case of a misdescription of property or error in the name of a beneficiary, so construe the will as to carry out the manifest intent of the testator. The question in such a case is not what the testator intended as distinct from what his words express, but simply what was intended by the words used when construed in the light of the circumstances surrounding the testator and his property. Wigram on Wills, 53.

We find nothing in the cases cited to sustain the doctrine that a court of equity has jurisdiction to reform a will, or to correct the mistakes of the testator, except upon the construction of a valid will made and executed by him, as and for his last will and testament. Pomeroy in his work on Equity Jurisprudence, at page 849, volume 2, says: “ There is, of course, no power to reform wills,” citing Sherwood v. Sherwood, 45 Wis., 357. In Schooler on Wills, § 220, it is said: “ It is not the province of a. court of equity to reform a will which the statute requires to be executed with certain formalities,” citing Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Yates v. Cole, 1 Jones Eq., 110 ; Whitlock v. Wardlaw, 7 Rich., 453. In 3 Redfield on the Law of Wills, page 49, § 16, it is said : “ It is not here attempted to reform the instrument (a will) so as to make it speak the real intentions of the testator. No court can do this,” citing Box v. Barrett, L. R., (3 Eq.,) 244. In that case, Lord Romilly said: Because the testator has made a mistake, you cannot afterwards remodel the will and make it that which you suppose he intended.” In Goode v. Goode (22 Mo., 518), it was held that a court of equity has no jurisdiction to reform a will on the ground of the mistake of the draughtsman in drawing the same. Ryland, J., in delivering the opinion in that case, says: “ Here, the parties seek to change a sentence or paragraph of the will of the testator, by adding the names of other legatees, so as to alter materially the bequests; indeed, seek to cut out one paragraph in effect and set up a new one. Admit this doctrine, and you may as well repeal the statute requiring wills to be iii writing at once. Witnesses will then make wills and not testators.”

In Newburgh, v. Newburgh, 5 Mad. Ch., 364, the Earl of New-burgh having estates in the counties of Sussex, Gloucester and elsewhere, gave instructions to his solicitor to prepare a will, which inter alla was to give to his wife, the Countess of Newburgh, an estate for life in his estates in the counties of Sussex and Gloucester. The solicitor prepared a will accordingly, and the same was afterward laid before an eminent conveyancer to settle. By some accident the word “ Gloucester ” was left out by the conveyancer, and the person who made the fair copy changed the word counties ” into “ county,” and the will, as copied, omitted, therefore, altogether the estate for life to the Countess Dowager in the county of Gloucester.”

At the time Lord Newburgh executed the will the solicitor who attended the execution had with him the abstract of the will as originally prepared, and the will was not itself read, but this abstract, which gave a life estate to Lady Newburgh as well in “ Gloucester ” as in “ Sussex,” and the testator executed the will believing it followed the abstract. A bill was filed by the Countess Dowager to rectify the mistake and that the trusts of the will be executed with such correction.

The vice-chancellor refused to correct the mistake, holding that the court could not set up the intention of the testator which, by mistake, he had been prevented from carrying into execution, as if he had actually executed that intention in the forms prescribed by the statute of frauds. “ To assume such a jurisdiction,” says the vice-chancellor, “ would, in effect, be to repeal the statute of frauds in all cases where a devisor failed to comply with the statute by mistake or accident, and to operate this repeal,-by admitting paroi evidence of the intention of the devisor, which it was the very object of the statute to avoid.”

In this case, the plaintiff and her husband each intended to make a will. They were alike mutatis mutandis. By mistake, each signed the one prepared for the other. It is manifest that the decedent never intended to execute the will signed by him. None of the provisions contained in it expressed his intended disposition of his property. The will he intended to make was that signed by his wife. We are unable to perceive how it can be properly said that he executed his will. The evidence shows conclusively that ho did not. It was his wife’s will that he executed. He intended to make a will, but by mistake that intent was frustrated. Suppose, instead of signing the will of his wife, he had, through a similar mistake, signed a deed or a blank piece of paper, is it possible that the court could, when satisfied that he intended to make a will containing certain ascertained provisions, transform such deed or blank paper into the will he intended to make ? If not, how does this case differ ? In either case, the will ho intended to make was not executed by him. If the court would be authorized to alter the paper he signed in this case so as to make it the will that ho intended, why might it not as well-so change the deed as to make it his will, or write his will upon the blank paper signed by him ?

To avoid confusion, we should keep in mind the fact that the question here is not what construction should be placed upon a paper executed by the decedent, and intended as his last will and testament. The fundamental error in this case was not in the employment in his will of language that was ambiguous, uncertain or which did not correctly express the decedent’s intention. It lies in the fact that the paper sought to be established as ñis will was never intended by him as such. His intention was to make another will, which he had prepared, but not executed. Therefore, the single question is whether the decedent left a will.

It was said by Earl, J., in Rollwagen v. Rollwagen (63 N. Y., 517): “A party who offers an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, and upon this question he has the burden of proof. If he fails to satisfy the court that the instrument speaks the language and contains the will of the testator, probate must be refused. The laws in reference to-the distribution of the estates of persons dying intestate are founded upon principles of public policy and justice, and must regulate the transmission of property unless a person before death has in the mode prescribed by law himself provided how his property after his death shall be disposed of. As said by Judge Davies, in Delafield v. Parish (25 N. Y., 9, 35): ‘It is not the duty of the court to strain after probate, nor in any case to grant it where grave doubts remain unremoved and great difficulties oppose themselves to so doing.’ And this was substantially the language of Lord Brougham, in Santon v. Williams (2 Curt., 530).”

Independent of the áuthorities which will be presently considered, we think the decedent died intestate, and the court below was right in holding that the plaintiff was not entitled to the relief sought

We have been cited to no case in this state, and have found none, where this precise question has been decided. We, however, find that it has been determined adversely to the appellant by the courts both of England and Pennsylvania.

The first case where this question arose to which our attention has been called, is In the Goods of-(14 Jurist, 402), decided in 1850. In that case, two unmarried sisters who lived together were anxious each to make a will giving to the other, whichever of them might survive, the property they mutually possessed. Accordingly two wills were drawn up, the language and contents of which were precisely the same, except the name of the person in whose favor the bequests were made. This was done by a solicitor, their brother-in-law.

Shortly after the wills were so drawn up they were signed at the same time by the two sisters, in the presence of two witnesses, and, as was supposed at the time, were duly and properly executed ; but, upon the death of one of these ladies, it was discovered, when looking at what was thought to be her will, that the signature of the living sister was affixed to that will instead of that of the intended testatrix, and that the signature of the deceased sister was affixed to the will of the living one. It was evident from this that a mistake had been made when the wills were signed, each having unintentionally signed the other’s will. Application for the probate of the will of the deceased was made on the suggestion that a court of equity might put a construction on the contents of the one then before the court Sir H. Jenner Fust, who delivered the opinion of the court in that case, said: “ Two ladies lived together, and they determined to make what I may call mutual wills. The wills are the same, mutatis mutandis ; they were drawn up and executed, that is, if executed they are, at one and the same time, but unfortunately each signed the other’s will. After the death of one of them, the solicitor alters them, so as to make the will of one appear as that of the other, and I need scarcely say he has erred in so doing. But what is to be done with this paper ? It is not the will of the deceased, and it purports to give all her property to herself, a manifest absurdity. I must reject the motion.”

The same doctrine was held in Alter's Appeal, 67 Pa. St., 341, which was decided in 1871. In that case, a husband and wife had wills prepared, giving their property to each other. By mistake each signed the other’s will. After the husband's death an act of Assembly was passed authorizing the court to hear testimony, and if the mistake was proved to reform the will. In that case it was held that the right of the husband’s heirs had vested on his death, and the act was invalid; that the husband had executed no will and there was nothing to reform.

In delivering the opinion in that case, Agnew, J., said: “ This is a hard case, but it seems to be without a remedy. An aged couple, husband and wife, having no lineal descendants, and each owning property, determined to make their wills in favor of each other, so that the survivor should have all they possessed. Their wills were drawn precisely alike, mutatis mutandis, and laid down on a table for execution. Each signed a paper, which was duly witnessed by three subscribing witnesses, and the papers were enclosed in separate envelopes, endorsed and sealed up. After the death of George A. Alter, the envelopes were opened, and it. was found that each had by mistake signed the will of the other. To remedy this error, the legislature, by an act approved the 23d day of February, 1870, conferred authority upon the register’s court of this county to take proof of the mistake, and proceed as a court of chancery to reform the will of George A. Alter, and decree accordingly. Proceedings were had resulting in a decision of the register’s court that there was no will, and that the act to reform it was invalid, the estate having passed to and vested in the collateral line of kindred. From this decree an appeal has been taken by Catharine Alter. On this statement the first inquiry is, was the paper signed by George A. Alter his will? Was it capable of being reformed by the register’s court ? The paper drawn up for his will was not a will in law, for it was not ‘ signed by him at the end thereof,’ as the wills act requires. The paper he signed was not his will, for it was drawn up for the will of his wife, and gave the property to himself. It was insensible and absurd. It is clear, therefore, that he had executed no will, and there was nothing to be reformed. There was a mistake, it is true, but that mistake was the same as if he had signed a blank sheet of paper. He had written his name, but not to his will. He had never signed his will, and the signature, where it was, was the same as if he had not written it at all. He, therefore, died intestate, and his property descended as at law. The difficulty lies not in the want of power of a court of chancery to reform a mistake in an existing will, when full equity power to that end is conferred by the law, but in the want of power to give an existence to that which had none before. And the objection to the validity of the act conferring the authority to decree the will lies not in a want of power in the legislature to establish a will upon paroi proof of the fact of making it, and of the intent to execute the proper paper, but in its want of power to divest estates already vested at law on the death of George A. Alter without a will. There being no will, it is evident that the effect of any subsequent legislation, call it by what name we may, is simply to divest estates.”

In the Goods of Hunt, L. R., 3 Pro. & Div., 250, decided in 1875, the decedent, who resided with her sister, prepared two wills for their respective execution. The legacies in each, and the disposition of the residue were almost identical, and in either case a life interest was given to the survivor in the bulk of her sister’s property. The deceased, in mistake, executed the will prepared for her sister. The court held that the deceased did not know and approve of the contents of the document she executed, and refused probate of it In that case Sir J. Hannen said : “ I should be glad to give effect to the intentions of the testatrix, by ' granting probate of this instrument, if I could, but I must not allow myself to be led away from what appears to me to be very plain ground by such a desire. No doubt there has been an unfortunate blunder. The lady signed as her will something which in fact was not her will: If I were to attempt to read it as her will it would lead to a variety of absurdities. She leaves to her sister Sarah, that is to herself, a life interest in a portion of her property, and all the furniture, plate, etc., which she holds in part with herself. I am asked to treat this as a misdescription. If by accident a wrong name had been introduced and it was clear what person was intended, the court would give effect to the instrument, provided the mistake could be corrected. But it would be contrary to truth in this case if I acted on such an assumption. If I were to put such a construction upon this will, I should be assuming, in order to do substantial justice, what every one who hears me would know is contrary to the fact. And no court ought to base its judgment on something wholly artificial and contrary to what every one must see is the real state of the circumstances. It is enough to say that there has been an unfortunate blunder. A paper has been signed as the lady’s will, which, as it happens, if treated as her will, would to a great extent, although not entirely, carry out her wishes. But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another. As regards this legacy it is suggested that it might' be treated as if the deceased did not know and approve of that part of the will, but she did not, in fact, know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it I regret the blunder, but I cannot repair it. I reject the motion, but I allow the executors costs out of the estate.”

The same doctrine is laid down in Schouler on Wills, § 215, and in Redfield on Wills, page 49, § 16 and note.

I have quoted thus fully from these cases for the reason that the facts were almost identical with those of the case at bar, and, hence, the reasoning of the courts is clearly applicable here.

If we follow the doctrine of these authorities, it becomes manifest that the judgment in this case should be upheld, as the principle of the cases cited if applied is decisive of the question here involved. It is, however, said by the appellant that these authorities are not binding upon this court, and should be disregarded. It may be that this court would not be bound to follow the cases cited if satisfied that they were improperly decided, but as the reasoning of the court and the result in those cases commends itself to our judgment, and is in harmony with the views we entertain upon this subject, they serve to confirm our opinion and lead us to hold accordingly.

Therefore, while we admit that the mistake in this case was unfortunate for the plaintiff, and one that a court might well desire to correct, still, as we think both upon principle and authority that the court could not correct it, it follows that we are required to hold that this action could not be maintained, and o that the judgment appealed from should be affirmed.

As the costs in this action are in the discretion of the court, and as it is quite manifest that the intent of the decedent has been thwarted by the mistake in executing his will, we think costs should not have been awarded against the plaintiff. This conclusion is more fully justified when we consider the fact that the question involved in this case was new, and had not been decided by the courts of. this state.

Judgment modified by striking out the costs awarded to the defendants, and as modified affirmed, without costs.

Hardin, P. J., and Merwin, J., concur.


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    Richard M. Oderkirk, Resp’t, v. James C. Fargo, President of the American Express Co., App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    1. Carriers—Negligence—'Wrongful delivery.
    On the arrival of a trunk sent by express to plaintiff he called at the office and requested permission to take out a few things and leave it to be called for the following day, and was told he could do so on receipting for it and paying charges, and it would be all right. The following day the trunk was delivered to persons who called for it and said it was receipted for and charges paid, but such persons were not authorized by plaintiff to receive it. On- the trial of an action for wrongful delivery, the court submitted to the jury the question whether the arrangement was made before the charges were paid and receipt signed or afterward, charging that if made before, the jury should determine whether the relation of warehouseman was thereby created, and also the question whether defendant was guilty of gross negligence so as to be liable if its relation was that of gratuitous bailee. Held, that the case was properly submitted to the jury.

    2. Same—Evidence.
    On the cross-examination of a defendant’s agent, who has testified that the arrangement was made after the charges were paid and receipt signed, it is proper to ask if he did not on the former trial testify that such arrangement was made before those acts.
    3. Same—Instructions to agent.
    Evidence as to instructions given by defendant to its employes not to keep packages in the office after charges are paid and receipts given, is inadmissible, where it is not shown that such instructions were given to the agent who made the arrangement in question, and such instructions were not communicated to plaintiff.
    4. Same—Charge.
    It appeared that the agent did not inquire as to the authority of the persons who applied for the trunk, and did not even look at them. Held, that the court did not err in refusing to charge that there was no gross negligence on the part of defendant.
    Appeal from a judgment, entered in Jefferson county on the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the trial judge.
    The action was commenced in a justice’s court, and the plaintiff had judgment. From that judgment the defendant appealed to the Jefferson county court. Upon a re-trial in the county court, the plaintiff was nonsuited. He then appealed to this court, where the judgment of the county court was reversed and a new trial granted. The action was again tried in the county court, and the jury found for the plaintiff.
    The plaintiff by this action sought to recover of the defendant the value of a trunk and its contents, which had by plaintiff’s direction been sent by express from Stony Greek, Warren county, N. Y., to Watertown, N. Y., and carried by the defendant from Rome to Watertown, and which plaintiff claimed was not delivered to him, but wrongfully delivered to some other person.
    Upon the last trial, as upon the former trial in county court, it appeared that plaintiff’s trunk reached the defendant’s office at W atertown on Saturday, October 26, 1889. The following Monday, in the forenoon, the plaintiff, who lived a short distance out of town, called at the defendant’s office, and there found his trunk. He testified that on that occasion he said to the agent of the defendant in charge of the office that he wanted to take out some things that belonged to a man by the name of Smith, and then leave the trunk there until the following day, or the next, to enable him to have it taken to his house by one of Woodruff’s teams that were drawing brick, and the agent replied that if the plaintiff paid the charges, he could take the things out and leave the trunk; that he then paid the charges and signed in a book what was shown to have been a receipt, but he did not at the time know what he signed; that he then opened the trunk, and some of the clothing belonging to Smith was taken out. He then locked it again and left it there. Upon Wednesday of the same week he went again to the office for his trunk, when he was informed by the agent that it had been delivered the day before to some other person upon the supposition that the plaintiff had sent for it. The plaintiff also testified that he never authorized any one to take the trunk, and had never received it. The evidence disclosed that two men with a team called at the office, asked for the plaintiff’s trunk, said the charges were paid, and that it was receijDted for, and that defendant’s agent then pointed out to them the trunk and they took it; that he did not ask them for any order or whether they had any authority from plaintiff to take it, did not know who the men were, and took' no measures whatever to learn whether they were authorized to receive it.
    On the trial the court submitted to the jury the question whether the arrangement between the plaintiff and defendant's agent was made before the charges were paid and the receipt signed, as testified to by the plaintiff, or afterwards, as testified to by defendant’s agent, adding that if they found with the plaintiff, they should determine whether the relation of warehouseman was thereby created. The court also submitted to the jury the question whether the defendant was guilty of gross negligence, and thus liable, if the relation of the defendant was to be regarded as that of gratuitous bailee. The jury found for the plaintiff.

      E. C. Emerson, for resp’t; Thomas F. Kearnes, for app’lt.
   Martin, J.

Under the evidence in this case it was a question of fact whether the transaction between the plaintiff and the defendant’s agent was as testified to by the plaintiff, or as testified to by the defendant’s witnesses, and was properly submitted to the jury. The verdict of the jury upon that question should be regarded as final. Baird v. Mayor, etc., 96 N. Y., 567; Archer v. N. Y., N. H. & H. R. R. Co., 106 id., 589, 602; 11 St. Rep., 32.

When this case was before this court on a former appeal, Merwin, J., who delivered the opinion of the court, said: “ The property was allowed to remain at the express office for the convenience solely of the plaintiff. This, according to the doctrine laid down in Fenner v. Buffalo & State Line R. R. Co., 44 N. Y., 505, would relieve the defendant from liability as a'common carrier. * * * It does not, however, follow that because liability as a common carrier had ceased, there was no liability at all. * * * In the present case, according to the evidence of the plaintiff, the agent of the defendant, before the charges were paid and the property receipted, agreed' that plaintiff might take away a portion and leave the balance, with the assurance that it would be all right. If this was so, it should not be said, as matter of law, that there was a delivery to and acceptance by the plaintiff of the whole. There was no termination of the transaction with the carrier. The custody of what was left remained as it had been before. It was in the office of the company and under the control of its agent. But it is said that the agent of the company had no power to bind the company to the agreement or consent that the property be left.

“ This seems to have been the main ground for the nonsuit. The agent testifies that he had no such authority, but he does not say that he so informed the plaintiff. If, as testified to by the plaintiff, and as might have been found by the jury, the arrangement for leaving the trunk was made before the payment of the charges and the signing of the receipt, and with a view to give the plaintiff a reasonable opportunity to send for his goods, it would be a matter within the apparent scope of the authority of the agent, managing there the business of the company, and would ,bind the company in the absence of. any notice to the plaintiff of any restriction on the agent’s authority. (Curtis v. Avon, G. & M. M. R. R. Co., 49 Barb., 148; Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y., 278; Story on Agency, § 126). At least it should not. be said, as matter of law, that the company would not be liable. It follows that the nonsuit was improperly granted, and that the request of the plaintiff to go to the jury on the question of the negligence of the defendant as warehouseman should have been granted.” (58 Hun, 347; 34 St. Rep., 166).

We regard that opinion as controlling in this case, and think the case was properly submitted to the jury. Hence, the judgment and order should be affirmed, unless some of the defendant’s exceptions are valid and require a reversal.

On the trial the plaintiff, on the cross-examination of the defendant's agent, who was sworn as a witness and testified that-the conversation with the plaintiff about leaving the trunk was after the charges were paid and the receipt signed, asked the following-question :

“ Will you swear you did not swear before the justice when the first trial was had, within four weeks after it occurred, that the whole talk about leaving that trunk there and the arrangement, was made before the book was signed and charges paid ? Objected to by defendant as incompetent and immaterial. Overruled. Exception.

“ Defendant’s counsel: Give me an exception on the ground that he should read the minutes of -the court below.

“ The Court: He asks him a question laying a foundation to contradict him.

“ Defendant’s counsel: I object to it as incompetent and immaterial; and that the evidence of the justice taken in the court. below should be produced, and the witness asked if he swore so and so from the minutes of the court.

“ The Court: He has a right to ask the question.

Defendant’s counsel: Those are my grounds, and give me an exception.”

We find no error in this ruling. It is abundantly sustained by the authorities. Pickard v. Collins, 23 Barb., 444; Weeks v. Fox, 3 T. & C., 354, 357; Grimm v. Hamel, 2 Hilt, 434; Tooker v. Gormer, id., 71; Sitterly v. Gregg, 90 N. Y., 687; Chapman v. Brooks, 31 id., 75; McCabe v. Brayton, 38 id., 196. Moreover, the witness had previously testified to substantially the same fact without objection.

The defendant asked the witness, Garvey, who was a route agent of the defendant company : “And have you any instructions of any kind to retain packages in the office after the charges are paid upon them and they are receipted for by the consignees ? Plaintiff’s counsel: I object to it as incompetent and immaterial, and no evidence of any instructions was brought to the knowl- • edge of the plaintiff. The Court: I hold it is immaterial unless it is followed by that; but they may ask the question. I hold under the ruling of the general term, it is immaterial unless it was brought to his knowledge. Defendant’s Counsel: I offer to show that, your honor. The Court: That it was brought to his knowledge? Defendant’s counsel: I don’t know whether it was brought to Oderkirk’s knowledge or not. But I offer to show that the witness, or the agent here, or any of the agents, have no right to retain any package in the office after the charges are paid, and they are receipted for upon the books. The Court: I decline to receive it unless you propose to show that it was communicated to the plaintiff. Defendant’s counsel: I except. 1 offer to show that broad proposition, and it is objected to upon what ground ? Plaintiff’s counsel: As incompetent and immaterial; unless it is shown that the instructions were communicated to the plaintiff. Objection sustained. Defendant excepts. Defendant’s counsel: I offer to show by those witnesses that they have no authority whatever from the company to store any goods whatever in their offices after the charges are paid and receipted. Objected to as before. Objection sustained. Defendant excepts.”

We do not think these exceptions were well taken.

First, the evidence offered related to instructions given to the witness, and there was no offer to show that he knew what particular instructions were given to Horton.

iSecond, it was not claimed that the instructions, if any were given, were communicated to plaintiff. This ruling seems to be in accordance with the former opinion in this case. It is there said : If, as testified to by the plaintiff, and as might have been found by the jury, the arrangement for leaving the trunk was made before the payment of the charges and the signing of the receipt, and with a view to give the plaintiff a reasonable opportune to send for his goods, it would be a matter within the apparent scope of the authority of the agent, managing there the business of the company, and would bind the company in the absence of any notice to the plaintiff of any restriction on the agent’s authority.”

“ Parties may deal with the agents of corporation's upon the presumption that they possess the powers usually assigned to the office they hold, and the principal is bound as to third persons acting in good faith by the act of an agent within his apparent authority, although in the particular instance it was unauthorized.” Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y., 285; Story on Agency, § 126; Smith on Mercantile Law, 2d ed., 59.

The question here whs not what real authority Horton possessed, but what his apparent authority was. Hence, the testimony was not material. The plaintiff could recover only in case that the arrangement with him was within the apparent authority of the agent.

Hor do we think the defendant’s exception well taken to the portion of the charge where the court said: “ I think it cannot be said as a matter of law that there was a delivery and acceptance by the plaintiff. I leave the question to the jury.” This question was decided on the former appeal It was then held that it should not be said as a matter of law that there was a delivery to and acceptance by the plaintiff of the whole.

It is also claimed by the appellant that the court erred in the following portion of its charge, and in refusing to charge according to the following requests : “ Defendant’s counsel: * * * I ask your honor to charge the jury that the burden of proving negligence rests upon the plaintiff, and the same must be shown by a preponderance of evidence. The Court: Oh, yes; it is for the jury to say under the law whether there was negligence in this case. Defendant’s counsel: The burden is upon the part of Oderkirlc to show it. I ask your honor to charge also if the plaintiff himself is guilty of contributory negligence in leaving the matter open as he did; that he would send a team without any order; then, in that case, the gross negligence upon the part of the defendant would not avail the plaintiff. The Court: I will not charge it in that way. Defendant’s counsel: I except. I say that if he was guilty of contributory negligence in any way in reference to this trunk, then gross negligence upon the part of the defendant would not avail. The Court: If he was guilty of negligence in allowing the defendant to deliver it as he did, then no recovery can be had; otherwise I decline to charge your proposition. Defendant’s counsel: I except; that is, if he was cognizant of the way it was delivered. The Court: Yes, if he left it in such shape that they might deliver it to wrong party. Defendant’s counsel: In leaving it the way he did, if he was guilty of contributory negligence, then any negligence on the part of the defendant would not avail him. The Court: I leave that to the jury; I decline to charge otherwise. Defendant’s counsel: I except. I ask your honor to charge that gross negligence must be proven, and cannot be assumed. The Court: Oh, yes, it must be proven, but not by witnesses; it may be from the circumstances as well, but it must be proven. Defendant’s counsel: I except. I ask your honor to charge that there is no gross negligence upon the part of Mr. Horton, or any of the employes, in the delivery of this property to any person. The Court: I leave it to the jury under the instructions I have given. Defendant’s counsel: I except. I ask your honor to charge that Mr. Horton did not act for the company in the capacity of a gratuitous bailee. The Court: I decline to charge that. Defendant’s counsel: I except. I ask your honor to charge that there is no evidence that he is guilty of gross negligence. The Court: I decline to charge otherwise than I have. Defendant’s counsel: I except.”

By an examination of this portion of the charge, it will be perceived that the court charged that the burden of proving negligence rested on the plaintiff, and must be shown by a preponderance of evidence, and that gross negligence was not to be assumed, but must be proved. The court also charged that if the plaintiff was negligent in allowing the defendant to deliver as he did, if he left it in such shape that it might be delivered to the wrong party, then no recovery could be had. This portion of the charge was as favorable to the defendant as it was entitled. There was no proof or claim that the plaintiff was guilty of any negligence that contributed to the loss of the trunk, unless it existed in what was said by him. as to sending for it. The court, in effect, charged that if he was negligent in that respect, he could not recover. This was all that the defendant could properly ask. The question whether the plaintiff was negligent was properly submitted to the jury. It was a question of fact, and not of law.

We find no error in the refusal of the court to charge that Horton did not act for the company in the capacity of a gratuitous bailee.

Heither do we think the court erred in refusing to charge that there was no gross negligence on the part of the defendant’s agent. The proof was sufficient to present a question of fact as to whether the agent was guilty of such a degree of negligence. If a jury was not justified in finding that the defendant’s agent was grossly negligent in this case, it would seem that gross negligence could be established in no case unless a willful and intentional wrong had been committed. The defendant’s agent was so utterly unmindful of the duty which he owed to the plaintiff, to exercise at least some degree of care not to deliver this trunk to a stranger, that he omitted to exercise even the slightest care to ascertain whether the persons applying for it had any authority to receive it. He not only did not inquire as to the authority of the persons who took it, but he did not even look at them to ascertain what manner of men they were.

When the portions of the charge excepted to are considered together, and construed in connection with the remainder of the charge relating to the subject, it becomes quite manifest that the instructions of the court conveyed to the jury the correct rule of law upon the questions presented, and that the jury was not misled thereby.

No other question is raised by the appellant. We think the -‘udgment and order should be affirmed.

Judgment and order affirmed, with costs.

Merwin, J., concurs; Hardin, P. J., not sitting.