text:
    The People, Resp’ts, v. Nicola Trezza, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Appeal—New trial—Criminal law.
    An appeal will not lie from an order denying a motion for a new trial in a criminal case made after judgment unless the proceedings are embodied in the judgment roll.
    Appeal from order denying motion for a stay of proceedings.
    The defendant was convicted of murder in the first degree at a court of sessions of Kings county on the 6th of June, 1890. His sentence was stayed by an appeal to the court of appeals, where the judgment was affirmed.
    On the 6th March, 1891, defendant was resentenced to die during the week beginning Monday, the 20th April, 1891.
    On the 8th day of April a motion was made before the court of sessions for a new trial on the ground of newly discovered evidence ; this motion was denied, and an appeal taken to the general term of the supreme court.
    On the 14th day of April application was made to Judge Pratt' for a stay of the execution and proceedings under the sentence until the appeal from the order of the court of sessions could be heard. The motion for a stay was denied, on the ground that the order of the court of sessions denying the motion for a new trial on the ground of newly discovered evidence was not appealable.

      A. H. Dailey, for app’lt; James W. Bidgway (John F. Clarke, of counsel), for resp’ts.
   Barnard, P. J.

—The defendant was convicted of murder in the first degree. He made an application for a new trial on the ground of newly discovered evidence, and the same was denied.

An appeal was taken to the general term, which is still pending. A stay during the appeal was denied because no appeal was proper from the decision denying the new trial.

The point is decided by the. general term in People v. Hovey, 30 Hun, 357.

Appeals in criminal cases are provided for, but no provision is made for a review of an order denying a motion for a new trial made after judgment, unless the proceedings are embodied in the judgment roll.

The order should, therefore, be affirmed.

Dykman, J., concurs; Pratt, J., not sitting.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    Francis Larkin, Resp’t, v. Barbara Brouty, Def't.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Foreclosure—Resale.
    Where property consisting of several lots is sold in one parcel by the referee, end the judgment does not direct a sale in that manner, and it appears that the property would have brought a much greater sum if sold in parcels, a resale will be ordered.
    Appeal from, order denying motion for a resale of premises sold under a judgment of foreclosure.
    Defendant gave to plaintiff a mortgage as security for services rendered and to be rendered to her and her son in defending them against indictments for murder. The mortgage covered two lots of land which were subdivided into fourteen parcels. The referee on the sale sold the premises in one parcel to plaintiff for $7,000, and the latter within one month mortgaged it to a savings bank for $5,000. The judgment did not direct the sale to be in one parcel. The application was made, and this appeal is taken by Sarah A. Wood, a judgment creditor of the defendant

      Norman A. Lawlor, for app’lt; Francis Larkin, for resp’t.
   Dykman, J.

—This is an appeal from an order denying a motion for a resale of the premises sold under the judgment of foreclosure and sale in this action.

The property was sold in one parcel, although the judgment did not direct the referee to make the sale in that way, and the affidavit satisfies us that the property should have been sold in lots as the same has been di vided. In fact we gather from the papers that the property would have produced more than double the amount of the plaintiff’s mortgage if the sale had been in lots.

After a full examination and careful consideration of all the circumstances surrounding the parties and their transactions, we think there should be a resale of the.premises.

The order should be reversed, with ten dollars costs and disbursements, and the motion should be granted, without costs.

Barnard, P. J and Pratt, J., concur.


author: Pratt, J.

text:
    Edgar Eighmie, Resp’t, v. Jacob Townsend, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Promise—Statute of frauds—Trust.
    One C., who was indebted to plaintiff, and for whom defendant was liable as endorser, gave to defendant a chattel mortgage in consideration of “ endorsements, sureties and promises,” and defendant promised to pay the debt to plaintiff. After the notes on which he was endorser were paid defendant turned over the mortgage to one S., on O.’s order. Held, that his promise was not within the statute of frauds; that he look the mortgaged property charged with a trust and could not relieve himself of such trust by turning over the property to C., or on her order.
    Appeal from judgment of county court in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on the minutes.
    In May, 1887, one Belle Cunningham was indebted to plaintiff to the amount of $68.09 for labor performed, and also to others. The defendant was also liable as endorser on her notes. She thereupon gave him a chattel mortgage for $600 in consideration of “ endorsements, sureties and promises,” and he promised to pay plaintiff’s debt, and afterwards made the same promise to plaintiff. Defendant never sold any of the mortgaged property, but after the notes on which he was endorser were paid he turned over the mortgage to one Swift on the order of Mrs. C.

      Frank L. Akerley, for app’lt; G. & G. H. Williams, for resp’t.
   Pratt, J.

-It is a well recognized rule that a promise to pay the pre-existing debt of a third person to the promisee is not within the statute of frauds'if the substantial effect of its fulfillment will be to discharge the debt out of a fund furnished to the promisor by the debtor, in contemplation of which the promise was made.

The plaintiff testified that defendant promised to pay him the debt declared on, and the original debtor, Cunningham, also testified that in consideration of the mortgage she gave to defendant that he made a promise to her to pay the debt, and the jury must have so found.

The promise, in any view, having been made for the benefit of the plaintiff, he could, under the authority of Lawrence v. Fox, maintain an action upon it unless it was void under the statute of frauds.

In this case it is settled by the verdict that at the time the fund or property out of which the debt of Cunningham was to be paid was turned over the defendant promised to pay the debt, and that subsequently the defendant promised to pay the said debt to the plaintiff without any new consideration proceeding from the plaintiff to the defendant

The defendant himself testified as to the conveyance of the property and that Cunningham wanted him to sell the property and pay the debts. He also testified that he promised to pay the debt out of the proceeds of the property.

The defendant, therefore, received the property charged with a trust for the benefit of plaintiff, and he could not relieve himself of that trust by turning over the property to Cunningham or upon her order or consent.

The property placed in the hands of the defendant was ample to pay all the obligations assumed by the defendant, so that there is no suggestion of failure of consideration between Cunningham and Townsend, the defendant; therefore the case of Dunning v. Leavitt, 85 N. Y., 30, and other cases cited by appellant have no application.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    The People ex rel. Charles J. Clinch et al. v. Harrison S. Moore et al.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.

    1. Highways—Necessity.
    The facts that a public highway extends from a turnpike for half a mile to within 213 feet of a public street, and that the road in question is intended to prolong said highway to said street, are sufficient to justify a conclusion that such road is necessary.
    2. Same—G-abdeit.
    Whether the land over which the road is laid out is a garden is a question of fact to be determined by the referees.
    8. Same.
    On certiorari to review the decision of referees appointed by the county judge in highway proceedings, the court cannot go behind the order of the commissioners of highways to inquire if they had jurisdiction.
    Certiorari to review the proceedings of referees appointed by the county judge on an appeal from order of commissioners extending Mayfair avenue in the town of Hempstead.

      Thomas Young, for relators ; James S. Allen, for def’ts.
   Dykman, J.

—This is a certiorari to review the decision of referee affirming an order of the commissioners of highways of the town of Hempstead, in Queens county, laying out a highway between Garden City and the village of Hempstead.

It appears from the record before us that certain persons liable to be assessed for highway labor in the town of Hempstead made application in writing to the commissioners of highways of that town to lay out the new road in question; that a jury was drawn in pursuance of such application, and that after an examination of the proposed highway, and a hearing of the reasons offered for and against the same, the jury certified to the necessity of the highway.

Subsequently, and after notice to all parties interested, a hearing was had before the commissioners of highways, who then made an order laying out the road.

From that order of the commissioners an appeal was taken to the county judge of Queens county, who appointed three referees to hear and determine the appeal, who took a large mass of testimony and finally rendered their decision affirming the order of the commissioners of highways laying out the road, and that decision is brought under review by the writ of certiorari.

It is to be observed at the outset that the writ brings before us for review the proceedings of the referees only, and none of the proceedings upon the application to the commissioners of highways anterior to the order laying out the road are open for our consideration. The People v. Talmage, 46 Hun, 603; 12 N. Y. State Rep., 760.

Yet we do not desire to be understood as entertaining any doubt respecting the regularity, legality or propriety of the proceedings which resulted in the order for the laying out of the highway.

The relators interpose three objections to the road: First. That" it is unnecessary. Second. That it runs through a garden; and, Third. That the jury was irregularly drawn and convened.

Hpon the first question, respecting the necessity of the road, the facts are these: “ May Fair avenue is a public highway extending from the Hempstead & Jamaica turnpike for about half a mile to a point within 213 feet of First street, another public highway, and this road in question was laid out to prolong May Fair avenue to First street. These facts alone are sufficient to show that travel will be facilitated and the public accommodated by the prolongation of May Fair avenue, and that conclusion is materially strengthened by the testimony of many witnesses who testified in favor of the road.

We, therefore, find the conclusion of the referees respecting the necessity of the road justified.

Whether the land over which the extension of May Fair avenue was laid out was a garden, was a question of fact to be decided by the referees, and in their report they say they gave due consideration thereto, and became satisfied and convinced from the testimony and from their own view that no garden existed within the meaning of the statute.

The freeholders who constituted the jury, the commissioners of highways and the referees have decided against the contention of the relators upon this question; and we find nothing in the record before us to show their conclusion erroneous, and we think their determination should be final. People v. Kniskern, 54 N. Y., 57; People v. Commissioners, 57 id., 551; People v. Horton, 8 Hun, 357.

In relation to the last point, it is sufficient to say that the proceedings for the drawing of the jury are not before us for review, and we cannot go behind the order of the commissioners of highways to inquire whether they had jurisdiction. People v. Talmage, 46 Hun, 604; 12 N. Y. State Rep., 760; Commissioners v. The Judges, 13 Wend., 433; People v. Harris, 63 N. Y., 398.

Upon all the questions we reach a conclusion in favor of the defendants, and their determination should be affirmed, with costs.

Barrard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    In the Matter of the Petition of Anna M. Tienken for an Accounting. In the Matter of the Judicial Settlement of Anna Tienken et al., Ex’rs, etc., of Henry Tienken, deceased.

      (Supreme Court, General Term, Second, Department,

      Filed July 2, 1891.)

    "Will—Vesting of estate.
    By his will testator gave certain land to his wife for life and gave the remainder to his executors in trust for the life of the wife to give her a certain annuity and divide the balance among his children, with power of sale of certain portions of the realty. The will provided that if any child should be dead leaving issue the issue should take the father’s share, and that after the expiration of the life estate the land should be sold and the proceeds divided among the children. One of the sons died after testator and during the life estate, leaving a widow and no children. Held, that he took a vested interest under his father’s will which passed to his widow under his will giving her all his property.
    Appeal from decree of surrogate of Kings county.
    The following is his opinion:
    Abbott, S.—The testator devises his residence at Flatbush to his wife, Anna Tienken, “ for and during the period of her natura! life.’’ He does not make any disposition of the remainder, except in so far as it is embraced in his residuary estate and is included in the general disposition of that.
    The rest, residue and remainder of his real property he devises to his executors, in trust, during the life of his wife, to collect the rents and profits of the same; to pay therefrom the sum of $2,000 per annum to his wife; after the payment of such annuity of $2,000, to pay the taxes, repairs, etc., and to “ apply the balance or remainder once a year between my children share and share alike, for their use, benefit and maintenance.”
    He empowers his executors “to sell and convey at any time” certain improved real property in St. John’s Place, in the city of Brooklyn; and “ in the event that it may be necessary to take the property located on the northwest corner of Myrtle avenue and Bridge street, in the city of Brooklyn, for the purpose of opening an avenue or street,” he authorizes his executors to sell such property. '
    In case such sales are made, the testator directs his executors “ to keep and hold the one-third of the proceeds of such sale in trust for my said wife during her life, by investing the same * * * and pay over to her once a year the interest or other income arising out of such investment, and pay the balance or remainder of the proceeds arising out of a sale as aforesaid equally between my children, share and share alike.”
    The “ eighth ” clause of testator’s will is as follows : “ Whereas, in this will is mentioned and described gifts, devises and bequests to my children, if any of them should be dead leaving issue surviving them, I do direct that the issue of any of my children deceased shall take the same share their parent would have received had such parent remained living, and to be divided among them, the said issue, equally, share and share alike.”
    After certain legacies of personal property, the testator then directs : “ Tenth. After the death of my wife I empower and direct the surviving executors to sell all of my real estate remaining unsold, at private or public sale, in fee simple absolute, by deed under seal, at the best possible price, and divide the proceeds equally between my children, share and share alike.”
    There is a codicil to testator’s will, which contains nothing material to the questions submitted for my decision.
    The testator Henry Tienken left him surviving bis widow, Anna Tienken, and four children, but no children of any deceased child. The widow Anna and all of his children, except one, still survive. One son of the testator, Henry M. Tienken, died October 31, 1889, leaving his widow, Anna M. Tienken, but no child, surviving. He left a last will and testament which has been duly proven, by which he devises and bequeaths all his property to his widow, Anna M. Tienken. It now becomes necessary for me to determine what interest, if any, Anna M. Tienken acquired by virtue of her husband’s will in the trust property, and the income thereof, in the hands of the executors and trustees of the will of Henry Tienken, deceased.
    The vacant property in St. John’s place was sold by the executors of Henry Tienken, by virtue of the power of sale contained in the “fifth” clause of his will, during the lifetime of his son Henry M. Tienken, and the proceeds of sale were divided and distributed as in'said clause directed, viz.: one-third thereof retained by them and invested for the benefit of testator’s widow, and the remaining two-thirds divided equally among the testator’s children, including the said Henry M. Tienken.
    The contingency provided for in the “ sixth ” clause of the will has not happened, and consequently the property at the corner of Myrtle avenue and Bridge street has not been sold.
    The question presented for my determination is by no means an easy one to answer. The will is badly drawn, and whatever the testator’s intention may have been, it is certainly very difficult to glean it from the context of his will
    There are a few propositions, however, which seem to be plainly expressed in the instrument. The title to the homestead at Flat-bush is vested in Anna Tienken, the widow of the testator, during her life; and the title to the residue of testator’s real property is vested in the testator’s trustees during the life of Anna Tienken, for the purposes of the trust; and the will contains a valid direction that all the “real estate' remaining unsold” be sold, and the proceeds divided “ equally between my children, share and share alike.” This direction certainly operates as an equitable conversion of such real property into personal property, and it is equally certain that such conversion is not to take place until “ after the decease ” of Anna Tienken, the testator’s widow. Until the happening of that event the executors have no power to sell and convey the real property, except as to the two parcels mentioned in clauses “ fifth ” and “ sixth.”
    The will taken as a whole bears strong evidence of an intention on the part of the testator to vest in his children, from the time of his death, an absolute interest and property in his residuary estate. They are all to share in the income of the trust estate with the widow Anna; no disposition is made of the share of any child to the residuary estate in the event of his decease without issue. They have shared equally the proceeds of sale of such part of the real property as the executors have sold under the special power granted under the “ fifth ” clause of the will. The personal property is bequeathed absolutely, one-third to the widow and two-thirds equally among his children, and this has already been distributed among the legatees. The general scheme of the will, strongly indicates an intention on the part of the testator thatf the respective interests of his widow and children shall be defined and determined as of the date of the testator’s death.
    notwithstanding my strong conviction that the testator wished to express the intention indicated, yet he has not legally done so in the instrument in question. The residuary real property is not to be equitably converted until after the decease of Anna. Until the happening of that event, it retains its character as real property. It is the proceeds of the sale of this property which is to be divided. It is a legacy of personal property, which does not and cannot exist until after Anna’s decease.

      I am unable to perceive any distinction between the principle which controls the direction of this will and that laid down in Warner v. Durant, 76 N. Y., 133; Vincent v. Newhouse, 83 id., 505; Shipman v. Rollins, 98 id., 311; and Delafield v. Shipman, 103 id., 464; 4 N. Y. State Rep., 247. Citations from two of these cases state the principle which is recognized in all of them.
    In Warner v. Durant, 76 N. Y., Judge Folger, at the commencement of his opinion, at page 136, says : “ This case-presents the question whether a legacy became vested in the legatee in his lifetime, though he died before the time fixed for payment. It is a general principle, that where the gift is absolute, and, the time of payment only postponed, time not being of the substance of the gift, but relating only to the payment, does not suspend the gift, but merely defers the payment.
    “ This principle will not act in this case to vest the legacy; for the gift was not, in the outset, to the legatee; and another rule is to be noticed. It is this : Where there is no gift but by a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary will not take place until that time arrives.”
    In Vincent v. Newhouse, 83 N. Y., at page oil, Judge Danforth says: “ The testator empowers and directs the executors to sell the land and divide the proceeds. There is then intended a conversion of the land' into money, and it is this money which the beneficiaries are to have. The actual conversion, however, is not to take place until or at the death of the widow or life-tenant; and we may say- here, as was said by the Master of the Rolls, in Hoghton v. Whitgreave, 1 Jac. & Walker Ch. Rep., 145: ‘Not only was there no bequest before the widow’s death, but the subject-matter then did not exist in the shape and form in which it is given.’ ’
    I do not think that the principle laid down in the cases cited, as applied to the provisions of the will under consideration, conflict with Goebel v. Wolf, 113 N. Y., 405; 23 N. Y. State Rep., 176. In that case no equitable conversion of the residuary estate was directed. Under the “ tenth ” clause of the will the legacies are to testator’s children as a class, and vest at the termination of the life estate.
    Henry M. Tienken died without leaving issue, before the legal existence of the subject-matter bequeathed.
    Applying the rule that legacies given to a class of persons vest in those who answer the description and are capable of taking at ■the time of distribution, Teed v. Morton, 60 N. Y., 502; Delaney v. McCormack, 88 id., 174; Goebel v. Wolf, 113 id., 405; 23 N. Y. State Rep., 176, it follows that the children surviving at the termination of the life estate must be deemed the objects of the gift, and that the widow of Henry M. Tienken is not entitled to any share in the estate of Henry Tienken by virtue of her husband’s will, or in any manner.

      Theodore N. Melvin, for app’lt; John F. Bullwinkel, for ex’rs, resp’ts; William D. Veeder, for Henrietta Ficken, resp’t; George F. Martens, for John H. Tienken, resp’t.
   Barnard, P. J.

—Henry Tienten died in Kings county in October, 1884, leaving a last will and testament, and codicil thereto, which have been admitted to probate. The testator left a widow, Anna Tienten, and four children. One of the testator’s sons, Henry M. Tienten, died in October, 1889, leaving a will and leaving a widow and no children. By his will he gave all his property to his wife. The question presented is, whether the deceased son had any estate under his father's will which he could transmit by a will of his own. The life estate of the widow is not yet terminated. By the will of the elder Tienten a life estate is given to his wife in certain land. The rest of his lands were to be managed by his executors, and out of the proceeds $2,000 a year was to be paid to his wife and the balance yearly to be divided among his children. Certain real estate might be sold during the existence of the life estate and one-third invested for the widow for life and the balance divided among the children equally.

The will provided that if any child be dead leaving issue the issue should take the father’s share. Certain sums were to be set apart out of the personal property for legacies to certain named grandchildren payable upon arriving at twenty-one years of age. If any grandchild should die before that time the legacy to be divided among the children.

The will provided that after the expiration of the life estate the remaining land should be sold and the proceeds divided among the testator’s children. The clause which gives a child’s share in case of his death without issue means a child who dies during the testator’s life. Embury v. Sheldon, 68 N. Y., 227.

A gift of a life estate with remainder upon ” and “ at and after” the termination thereof to children of testator gives a vested remainder at the death of testator with time of payment only postponed. Livingston v. Greene, 52 N. Y., 124; Stevenson v. Lesley, 70 id., 515.

The will disposes of the whole estate.

Applying these rules to the will it is quite clear that it was the intention of the testator at his death to vest in each child then living an equal share of his estate subject to the life estate. Where a gift is only found in a direction to divide at a future time, the gift is contingent, but this rule must yield to the intent of the testator.

The point presented is covered by the case of Goebel v. Wolf, 113 N. Y., 405; 23 N. Y. State Rep., 176.

There was no immediate gift to the children. There was nothing on the face of the will that any child should not take his share in the final division. The distribution was not limited to children “ then ” living or to those of his children who survived the life estate. The court of appeals also gave great weight to the fact that before the life estate ended certain of the personal property passed at once to the children who survived testator.

We, therefore, conclude that the interest of Henry Tienken became vested under his father’s will.

The decree of the surrogate should be modified accordingly.

The decree is'reversed, with costs to appellant out of the estate and the proceedings remitted to the surrogate for further action.

Dykman and Pratt, JJ., concur.


author: Dykman, J. Pratt, J. (dissenting).

text:
    Thomas Doyle, App’lt, v. The Rector, etc., of Trinity Church, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Contract—Damages to work—Duress.
    In an acúon for the contract price of making a well and for extra work in repairing damages thereto, it was found by the referee that after the well was about completed defendant authorized the use of torpedoes to improve it; that they were used by one not an agent of the contractor, but believed to be so by defendant; that they resulted in damage to the well; that the contractor disclaimed responsibility therefor; that defendant refused to pay unless the repairs were made; that an agreement was made by which defendant was to, and did, furnish certain tubing, and defendant made the repairs, and as conclusions of law that the discussion resulted in a new contract in settlement of adverse claims which was not void for duress or coercion, and that plaintiff was not entitled to compensation for the extra work. Held, that as the testimony was not printed in the appeal book, it was to be assumed that the facts found were justified by the evidence, and the report was justified.
    (Pratt, J., dissents.)
    Appeal from judgment in favor of defendant, entered upon the report of a referee.
    The following are the referee’s findings:
    I find as matters of fact —
    The plaintiff’s assignor, Jesse Button, contracted with the defendant to sink a well on their premises to such depth as they might determine, for a stipulated price per foot.
    He did so sink the well until ordered to stop by the defendant, according to the terms of the contract.
    The proposition upon which said contract was based was signed “Jesse Button, by A. E. Both, general manager.”
    Daring the progress of the work said Both visited it in company with Button, and sometimes alone, and on several occasions collected from the defendant, on behalf of Button, money earned under the contract.
    Both was not the authorized agent of Button, but the defendant believed him to be such.
    After the boring had ceased by the defendant’s order, at the suggestion of Both, defendant authorized the use of torpedoes in the well shaft for the purpose of improving the quantity and quality of the water, which, however, resulted in-great damage to the well.
    ■ Said torpedoes were not used by or under the direction of Button, nor with his knowledge and consent, nor in his presence.
    Defendant then claiming that Button was responsible for the damage, demanded that he should repair the same at his own expense, and declared that if he would not do so, they would make the repairs and charge the same against a balance still owing by them to him upon the original work.
    Button disclaimed all responsibility, and denied the defendant’s claim to charge him with the cost of repairs, but suggested a mode for making the repairs, which required the use of certain additional iron tubing.
    The defendant then proposed to furnish said tubing and did furnish it at an expense previously ascertained by Button.
    Thereupon Button made the necessary repairs, employing for the purpose the tubing furnished as aforesaid by defendant
    Thereafter Button assigned to the plaintiff herein the claim upon which this action is based.
    I find as conclusions of law:
    That the original contract was completed on the part of said Button when he was notified by the defendant to stop boring.
    That the discussion between said Button and the defendant after the torpedoes had been used, as to their relative rights and liabilities, resulted in a new contract whereby it was agreed that defendant was to furnish certain iron tubing at its own expense, and said Button was to perform the work necessary to repair the well.
    That said contract was in settlement or compromise of adverse claims resting on an honest difference of opinion, and therefore was based upon a valid consideration, and binding upon both parties.
    That the fact that defendant refused to pay the balance due to Button on the original contract and threatened to apply it to the cost of the repairs, did not constitute in law such duress or coercion as would invalidate the contract for the repairs.
    That the defendant is not liable upon the claim in this action, except for the sum of $134.77, with interest thereon, admitted to be due upon work performed under the original contract.

      L. A. Fuller, for app’lt; S. P. Nash, for resp't
   Dykman, J.

—The judgment formerly rendered in this action in favor of the defendants was reversed by the court of appeals upon errors of law, and now a trial has been had before a referee, and the plaintiff has appealed from the judgment.

The testimony is not printed in the case, and it is to be assumed that the facts found are justified by the evidence. That being so, the conclusions of law followed and the report was justified.

The judgment should be affirmed, with costs to the respondent

Barnard, P. J., concurs.

Pratt, J. (dissenting).

—At the request of defendant the referee found that, after the explosion, it was agreed between the parties that if defendants would supply the new pipe required, Button would do the work required to repair the damages, they claiming he should do it at his own expense.

At request of plaintiff the referee found the further facts that Button disavowed his liability to make the repairs, and did not say he would do it without pay.

Taking all the findings together, it appears that the parties came to an agreement as to the practical means by which the injury should be repaired, but did not come to an agreement upon the legal rights of the parties, which were left undecided and free to be brought into determination by either party.

This was the state of facts which appeared before us upon the former appeal in February, 1887, the testimony of the parties being entirely in accord; both parties agreeing in their statement of the negotiation which followed the explosion.

It also appeared on the trial, as it appears now, that defendants refused to pay Button for the work already done unless be made the repairs, and said that if he did not make them, the defendants would do so, and deduct the expense from the money already earned by Button.

Defendants then claimed that Button, by going on under those circumstances to complete the work, lost all right to compensation ; that, in legal effect, he agreed to make the repairs without pay, and was bound by his agreement.

Upon both those questions this court was of opinion that defendants’ contention was wrong; that no agreement to do the work without pay could legally be implied., and that if such agreement was made it did not bind Button, as an unjust advantage was taken by defendants of his position.

From these views there was no dissent, nor is any expressed by the court of appeals in its opinion, found in 118 N.Y., 678; 28 N. Y. State Rep., 972.

On the contrary, it is entirely plain that they must have been adopted. For all the facts now shown appeared without dispute in the record then before the court, testified to by both parties ; and had that court been of the opinion that they constituted a defense to the plaintiff’s claim, the judgment then existing in favor of the defendants directed by the trial court would have been affirmed.

The decision made by the appellate court directing a new trial could not have been made, except by holding, as was held below, that the facts upon which the referee’s decision is based were no defense.

We must be controlled by that decision.

It follows that the judgment appealed from should be reversed, with costs to the plaintiff to abide the event, and a new referee substituted.


text:
    Oliver T. Nanny, Resp’t, v. Amzi L. Fancher, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

      1. Equity—Judgment.
    Where the court has obtained jurisdiction of an equity action, it may give such relief as the facts proved require.
    2. Vendor and purchaser—Deed.
    Plaintiff’s wife and other joint owners of real estate conveyed to defendant their interest in the same at a certain price per acre, excepting their right, title and interest in the dower and thirds of their mother, which they agreed in said deed to sell to defendant at the death of the widow at the same price. Plaintiff’s wife devised her interest to plaintiff. In an action to determine the construction of the will of plaintiff’s wife, the deed, and for specific performance, to which all parties interested were made parties, it was held that by the true intent and meaning of the agreement and deed the premises were conveyed to defendant subject to the widow’s dower, and that on her death defendant became liable to the grantors for the balance of the purchase price, and judgment was rendered for such balance. Held, no error; that defendant was protected, as upon payment of the judgment he would have a perfect title to the premises conveyed.
    3. Bar—Former adjudication.
    The mere fact that the judgment rendered in the action might have been rendered in a former action between plaintiff and one of the present defendants, does not render such action a bar to the present action.
    Appeal from judgment entered upon findings of the court at special term, and from order granting an extra allowance.
    Action for the construction of a will, deed, and for specific performance of an agreement for the sale of real estate. Plaintiff’s wife and other joint owners of a farm entered into an agreement to sell the same to defendant, Fancher, for $130 per acre, excepting therefrom their interest in their mother’s dower, which they agreed to sell to him on her death at the same price. A deed was accordingly executed and delivered containing said exception and agreement Plaintiff’s wife died, leaving a will, by which she gave to him all her interest in her father’s property and made him executor. After the death of the widow this action was brought to determine the construction of the will of plaintiff’s wife, the agreement and deed, and to require the defendant to accept a deed for the dower interest, and pay therefor, to which action all the grantors were made parties defendant. The trial court found that by the true intent and meaning of the agreement and deed the lands were conveyed to defendant subject to the widow’s dower, and that on her death the defendant was bound to pay the balance of the purchase price to the grantors in the deed and plaintiff, as representing his wife; ascertained their respective shares, and rendered judgment in favor of each for the sum due him against defendant

      M. N. Kane, for app’lt; Bacon & Merritt, for resp’t.
   Pratt, J.

—This action was well brought as a suit in equity, as it required a construction of a will, deed and certain written agreements between the parties, and the relief prayed for was in part for a specific performance of a contract.

The court having obtained jurisdiction could give such relief as the facts proved required. Welles v. Yates, 44 N. Y., 525 ; Code, § 1207.

The question under the contract whether any further deeds were required was passed upon at the trial, and it was held that no further conveyance was necessary to perfect the title in the defendant, and, therefore, all there was left to be done was for the defendant to pay the price he had agreed to pay, and judgment was given accordingly.

All persons having any interest in the premises were parties to the suit, and the judgment is conclusive upon all of them.

The defendant will have, therefore, under the judgment a per-feet title to what he had agreed to buy when the judgment is executed by payment of the price agreed upon.

We do not think the action of Nanny v. Fancher is a bar to this action.

It is sufficient to say that the parties and the allegations are not the same and entirely unlike relief is prayed for in this suit. It does not follow that because the judgment rendered in this suit, to wit, damages for the price of land, might have been rendered in the former suit, that it is a bar to the present action.

The other defendants had a right to be heard upon the question of the construction of the deed and agreement for the purchase, and whether any further conveyance was necessary.

The question of costs was discretionary with the trial judge. We find no error sufficient to warrant a reversal of the judgment It must, therefore, be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not'sitting.


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    In the Matter of the Application of Edward B. Long et al., Trustees of the Village of White Plains, to acquire certain lands for sewerage purposes.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Costs—Special pboceedings—Code Civ. Pito., § 8240.
    Where there has been a trial of the issues raised in a proceeding to acquire land for public purposes and an appeal taken from the order granting the petition, the case is one within § 3240 of the Code, and costs as in an action may properly be allowed.
    Appeal from order denying motion to retax costs."
    This is a proceeding to acquire the lands of Charles Butler and others to construct and maintain the sewerage system of the village of White Plains.
    On the application to J ustice Barnard for the appointment of commissioners of appraisal, Charles Butler appeared by attorney, served a verified answer denying many of the allegations of the petition and raising several issues of fact and of law and asked for a dismissal of the petition.
    The issues raised by this answer were tried by the court, evidence being introduced by Mr. Butler and the applicants.
    The court overruled Mr. Butler’s objections and found that it was necessary to acquire his land in order to construct this sewerage system.
    Findings of fact and conclusions of law were signed by the trial court.
    From-the order granting the petition Mr. Butler appealed to the general term, where the order was affirmed, with costs. 34 N. Y. State Rep., 778.

      W. P. Butler, for app’lt; H. T. Dykman, for resp’ts.
   Pratt, J.

—We think the costs were properly taxed and must stand. This matter comes under § 3240 of Code of Civil Procedure. There was a trial and questions of law and fact litigated, and costs having been allowed as for like services in a civil action, they must stand.

Although in the form, of an appeal from an order, there were issues tried and an adjudication had in a special proceeding.

Order affirmed, with costs.

Barnard, P. J., concurs; Dykman, J. not sitting.


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    Leman C. Miner, Jr., Resp’t, v. Bernhard Baron et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Pleading—Amendment on tbial.
    It is not error to refuse to allow an amendment to an answer by striking out an admission of an allegation of the complaint after plaintiff has closed his case.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    Action to recover damages for an alleged breach of contract.
    The complaint alleged an agreement by which plaintiff gave to defendants the exclusive right to manufacture and sell his patented cigar perforators for three months, with the right to purchase the patent at the end of that period or to take an exclusive right to manufacture and sell the same on their guaranteeing to manufacture and sell at least 13,000 within three years and pay a royalty thereon ; that defendants elected to take such exclusive right j that thereafter the agreement was modified so that plaintiff should have the right to sell to others than defendants and the latter should during the year manufacture not less than 4,000 and pay royalty thereon; that they manufactured and took only 200. The answer admitted the making of the first agreement and the allegation as to the election, but alleged that the contract had been cancelled.
    At the close of plaintiff’s case defendants moved to amend the answer by striking out the admission as to the election, which motion was denied.

      Leopold Wallach, for app’lts ; Carpenter & Roderick, for resp’t.
   Dykman, J.

—This is an appeal from a judgment entered upon a verdict and from an order denying a motion for a .new trial upon the minutes of the court

The action was for the recovery of the amount due upon a contract, and the only question of fact involved was whether the original contract had been modified in the manner claimed by the plaintiff or as insisted by the defendants. That question was fairly submitted to the jury and the verdict was for the" plaintiff.

The testimony was contradictory, and we must assume now in view of the verdict that the jury found the facts according to the plaintiff’s testimony and insistence, and that was sufficient to sustain the verdict In our view the evidence introduced by the plaintiff was quite preponderating.

It was not erroneous to deny the motion of the defendants to amend their answer upon the trial and we find no error in the record.

The judgment and order should be affirmed, with costs. Barnard, P. J., and Pratt, J., concur.


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    Harriet S. Rumsey et al., Resp’ts, v. The New York & New England R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Verdict—Second trial.
    Where, upon substantially the same facts, the verdict on a second trial is in conformity to the law as laid down by the court of appeals on a reversal of the former judgment, it will not be disturbed.
    Appeal from judgment in favor of plaintiffs, entered upon verdict.
    Action to recover damages claimed to have been occasioned by defendant’s railroad being built between plaintiffs’ dock and brickyard property and the channel of the Hudson river, and to compel the removal of said railroad at the point in question.
    The facts are the same as on the former trial of the case. See 114 N. Y., 423; 23 N. Y. State Rep., 928; 125 N. Y., 681; 34 N. Y. State Rep., 454.
    On this trial judgment was rendered for $10,500 damages and for the removal of the railroad.

      W. C. Anthony, for app’lt; H. H. Hustis, for resp’ts.
   Dykman, J.

—This is an appeal from a judgment in favor of the plaintiff upon the second trial of the cause.

Upon the first trial the decision was in favor of the defendant, and that judgment was affirmed at the general term, but reversed by the court of appeals.

The law being thus settled in favor of the plaintiff, the second trial was had in conformity with the decision of the court of appeals ; and the case presented being substantially the same, the judgment was rendered for the plaintiff.

Upon the authority of the court of appeals, therefore, the judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


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    Mary E. Sanger et al., App’lts, v. John C. Merritt, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    "Ejectment—Title—Allotment of land.
    On a former appeal in this case the court of appeals held that the allotment, in 1793, of land to Hartt, plaintiffs’ predecessor in title, was void as in violation of the act for the prevention of fraud; that there was no evidence that he was one of the original proprietors, or that he ever claimed to own or entered on the land. Held, that evidence on the last trial that Hartt’s father was an original proprietor, and conveyed his rights to Hartt by will in 1794, and that Hartt,_paid for a survey, was not sufficient to show that the allotment was valid.

      Appeal from judgment dismissing the complaint.
    Action of ejectment. This is the fourth trial of the action. On this trial evidence is claimed to have been given that John Hartt’s father was one of the original proprietors of the land; that John Hartt became possessed of his interest in the common lands under his father’s will, in 1794; that the land was set apart to him in 1793; that he paid for a survey thereof; that the land in question was known by his name.

      Sanger & Davis, for app’lts; Thomas Young, for resp’t.
   Pratt, J.

—This is an action of ejectment. It has been tried four times. The defendant had a verdict on the first trial, in April, 1882. Plaintiff paid the costs and took a new trial under the statute. It was tried again in October, 1883, resulting in a second verdict in favor of defendant. Judgment was entered October 25, 1883, from which plaintiff appealed, and the result was an order for a new trial -in February, 1885. 35 Hun, 669. It was tried again in February, 1886, when a verdict was directed for the plaintiff. Judgment was entered on this verdict February 16, 1886, and defendant appealed. The general term affirmed the judgment. Defendant appealed to the court of appeals and this judgment was reversed and a new trial ordered. 120 N. Y., 109; 30 N. Y. State Rep., 870.

The cause was again tried in October, 1890, resulting in a dismissal of the complaint. Judgment was entered on this decision December 19, 1890, and now the plaintiff appeals again.

The learned trial judge granted defendant’s motion to dismiss, holding that the plaintiff had not proved facts sufficient to justify submitting the cause to a jury, if one had been present.

The plaintiff claimed title to a lot of wood land in the town of Huntington, Suffolk county, through one Hartt She claimed, and it was conceded, that the land was owned by the town prior to April 12, 1793. She offered proof tending to show that the holders and proprietors of lands in the town met in 1792 and appointed four trustees to act for them in respect to said lands, and that on April 12, 1793, these trustees allotted this land in question to Hartt, and that the town authorities subsequently ratified that allotment. The court of appeals has held that this allotment was not sufficient to pass a title, and that since there was no evidence before it showing that Hartt was a proprietor at the time of the allotment, or that he ever entered into possession under it, there was nothing to sustain the theory of a valid parol partition. Hence, the questions before us are, whether or not plaintiff met these difficulties on the last trial.

We do not see that plaintiff changed the essential features of the case on the new trial, or that she offered any evidence which, if received, would have wrought such change. ' Hence, we think, the judgment should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


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    In the Matter of the Estate of Adolphus F. Ockershausen, Deceased.

      (Superme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Executors and administrators—Accounting—Premature order.
    On an accounting as survivor of a firm by one who was also an executor of his deceased partner, the account showed that one of the heirs was entitled to a certain sum as his share of loss on a sale of the firm real estate, but an offset was claimed on other transactions. At this time proceedings were pending for a geneial account by the executor and an action to determine the balance due from him as surviving partner. Eeld, that an order to pay the whole of the sum mentioned to the heir was premature.
    Appeal from order of the surrogate of Richmond county, directing the executor, as surviving partner of the firm of Ockershausen Brothers, to pay to petitioner the sum of $842.10.

      Charles P. Buckley, for ex’r, app’It; William M. Mullen, for petitioner, resp’t.
   Barnard, P. J.

—The appellant, George P. Ockershausen, is the executor of the last will and testament of Adolphus F. Ockershausen, deceased. By the terms of the will the estate of deceased was given to the testator’s four children equally, except that the share of the respondent, Henry A. Ockershausen, was charged with an advancement of $10,000.

The whole estate was subject to a life estate, which has expired. The case shows that the executor was called to account, and that in the accounting proceedings before a referee, the executor, who was one of the firm of Ockershausen Brothers, was required to file an account of his discharge as surviving partner, and he did so, and in this account he stated that Henry A. Ockershausen, the respondent, would be entitled to one-fourth of the loss in certain real estate sold by the executor belonging to the firm, and this amount was stated at $842.10. In this account the executor claimed an equitable offset against this balance to the amount of $700 on a railroad stock transaction,' the merits of which do not appear.

The surrogate ordered the payment of the entire balance of $842.10 to be paid to Henry A. Ockershausen. The order was premature. There was no admitted general balance, and nothing but a general adjustment could determine the rights of the several parties.

There is a proceeding pending for a general accounting of the executor, and an action at law also pending to determine the balance due from the executor as the surviving partner of the firm of Ockershausen Brothers.

The order should be reversed, with costs and disbursements, and the application denied without prejudice to the rights of the parties as they will be shown by the final accounting.

Dykman and Pbatt, JJ., concur.


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    Annie Mary Velie, App’lt, v. Samuel Titus, Ex’r, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Bills and notes—Consideration.
    Plaintiff rendered services for defendant’s testator, who was her grandfather, who gave her therefor a note for $1,000 payable on demand. It appeared that testator made declarations that he had given her the note and employed counsel to ensure its validity. Held, that a sufficient consideration was shown; that while the relationship of the parties to the note was such that a promise to pay could not be implied, yet a claim for remuneration would not be so clearly unfounded that its extinguishment would be no consideration for a promise.
    Appeal from order of special term, denying motion to set aside the report of a referee.
    Proceedings to determine a claim against an estate. The claim was brought upon a note, of which the following is a copy: “$1,000.
    “ On demand, I promise to pay to Anna Mary Yelie (my granddaughter) one thousand dollars in consideration of five dollars in hand paid and for services rendered me and for other good and valuable consideration equivalent to the above named sum, which sum when paid shall be in full of all demands for services or otherwise which she has against me.
    “ Dated, Coffins Summit, Eebruaiy 14, 1887.
    “(Signed) John H. Titus.”
    The claimant was a granddaughter of the deceased, and had waited on and performed services for him and continued to do so down to the time of his death. The note in suit was executed and delivered by testator after being informed that a previous one which did not express a money consideration was not good.
    The decedent frequently declared he had given, or was going to give, claimant a note of $1,000 “ for her kindness to him in waiting upon him,” “ because she was a good, kind little girl and waited on him so good,” “for being a good girl and a good waiter.” He said “he wanted to do this to reward her.”

      Daniel W. Guernsey, for app’lt; Milton A. Fowler, for resp’t.
   Pratt, J.

—It appears that the plaintiff rendered services to some extent to her grandfather, for which he executed and delivered to her his promissory note. That the sum was large for the amount of service shown must be conceded, but the amount was fixed by the maker himself and he had a right to make his own estimate.

It may well be, as held by the referee, that on account of the relationship between the plaintiff and her grandfather no promise would be implied to remunerate her for services. But it cannot be said that a claim for such remuneration would be so clearly unfounded that its extinguishment would be no consideration for a promise. The services continued after the note was made, and the circumstances indicate that the continuance of the services may have been, to some extent, a moving cause.

The reiterated, expressions of Mr. Titus that he wished the note paid; his employing counsel to ensure its validity, have weight towards proving a consideration, and it must be remembered that a consideration is implied by law.

It was for the defendant to prove affirmatively that no consideration existed. We think not only that he failed to do so, but that a sufficient consideration is affirmatively made out.

It follows that the order appealed from should be reversed and the motion to vacate the referee’s report should be granted, with costs to plaintiff of the general and special terms.

Dykman, J., concurs; Barnard, P. J., not sitting.


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    Lizzie Enggren, Resp’t, v. Christian J. Prinz, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Cohversioh—Title to febsonal pbopebty.
    In an action for conversion of a horse of plaintiff’s which had been levied upon for a debt of her husband and sold to defendant, plaintiff claimed to own it by an independent title. The defense proved a chattel mortgage including said horse given by her husband to plaintiff after the commencement of suit against him. It appeared that plaintiff did not examine the mortgage or know that it included the horse. Held, that a judgment in her favor would not he disturbed.
    Appeal from judgment of the county court of Queens county in favor of plaintiff.
    Action to replevin a. horse claimed to belong to plaintiff which had been seized by a constable on execution against the plaintiff’s husband and sold by him to defendant. The answer set up such levy and sale, and alleged on information and belief that the horse was the property of plaintiff’s husband. On the trial evidence was admitted, under objection, of a conversation between plaintiff and the constable at the time of the levy, in which plaintiff claimed the horse as hers.

      W. J. Stanford, for app’lt; William W. Gillen, for resp’t.
   Barnard, P. J.

—This is an action for the conversion of a horse. The issue raised by the answer was that the horse belonged to plaintiff’s husband and the taking was by execution and levy under a judgment in favor of one Nicholas Ryder. It appeared upon the trial that the husband of plaintiff had executed a chattel mortgage on certain property to his wife and that this horse was included in it. The wife claimed an independent title and she never saw the mortgage. It was put on record by her husband without her knowledge. The conversation between the plaintiff and the constable who made the levy was hearsay but it was wholly immaterial. The constable demanded fifty dollars and the plaintiff said she had nothing to do with her husband’s debt. The constable said he would levy and the plaintiff told him it was her horse. There is nothing presented by the case which calls for a reversal of the judgment.

Judgment affirmed, with costs.

Dykman and Pratt, JJ., concur.


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    In the Matter of the Estate of Seth Whitney, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Executors and administrators—Disputed claims.
    A claim apparently barred by the statute, but claimed to have been revived by a payment, was presented to the executors in 1888, and rejected by them in 1890. Held, that- although it was a long time before it was finally rejected, it was never really admitted, and was properly considered a disputed claim and the accounting postponed until the determination of a reference thereof.
    Appeal from the decision of the surrogate of Westchester county, suspending proceedings for an accounting until the determination of the validity of a claim against the estate.

      Abram J. Miller, for app’lt; Franklin Couch, for resp’ts.
   Barnard, P. J.

—The petitioner claims to hold a note for $600, upon which there is interest due from March 1,1886, against Seth Whitney, deceased. As such creditor he presented a petition asking for a judicial settlement of the accounts of the administrators. The administrators deny the debt. It appears that the claim was presented to the administrators in June, 1888, and it was finally rejected in July, 1890. The note was given in 1877, and was apparently barred by the statute of limitations when Whitney died. The claim is to be revived by a payment which is disputed. An administrator cannot allow a claim which is barred by the statute, and while it was a long time before the claim was finally rejected, it was never really admitted. Under the circumstances, the surrogate’s order that the claim be deemed a disputed claim and the accounting postponed until after the claim is established was just and proper, and his decree should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Barnard, P. J. Pratt, J. (dissenting.)

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    Elie Weill et al., App’lts, v. Joseph Malone et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Attachment—Fraud.
    Plaintiffs delivered to defendants certain steel, to be paid for as used. After a fire on defendants’ premises some of the steel was missing. It was shown that after the fire defendants sold some damaged steel, hut there was some proof that this was not the steel in question. Held., that an attachment granted in an action for conversion of the steel would not be vacated.
    (Pratt, J., dissents.)
    Appeal from order vacating an attachment obtained by plaintiffs in an action for conversion.
    The plaintiffs shipped to defendants ninety-two casks of steel, to be paid for as defendants used them. A fire occurred at defendants’ factory, and an agreement was then made that they should assign their policies of insurance to plaintiffs and divide the damaged steel. It was found that fifty-two casks were missing. This action was then brought and an attachment obtained on the ground that defendants were selling such damaged steel with intent to defraud plaintiffs.

      Eugene G. Kremer (Frederic S. Barnum, of counsel), for app’Its ; James C. Church, for resp’ts.
   Barnard, P. J.

—The plaintiffs delivered to the defendants ninety-two casks of steel. On the 26th of April, 1890, the defendants’ premises were burned. There were fifty-two casks of the steel missing after the fire. There is proof tending to show that some damaged steel was sold by defendants in May, after the fire. There is proof tending to show that this was not the steel in question. Even upon this point the case is not sufficiently clear to vacate the attachment. The conversion, in any case, remains proven. Assuming a conversion of fifty-two casks of steel, the statement that the defendants had disposed of the same with intent to defraud their creditor presumptively should be held good until the trial.

The order vacating the attachment should be reversed, with costs and disbursements.

Dykman, J,, concurs.

Pratt, J. (dissenting.)

—This motion only involves questions of fact, and an examination -of the affidavits satisfies us that the matter was correctly decided below.

The evidence failed to show with sufficient certainty that the defendants had disposed of any of their 'property with ' intent to defraud their creditors, and whatever there was alleged by plaintiff from which such an inference might be drawn was fully met and denied or explained by the defendants.

Order affirmed, with costs.


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    In the Matter of the Claim of William Lang, Ex’r, App’lt, v. The Estate of Eliza Stringer, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Decedent’s estates—Claims against.
    Four years before her death decedent sent for claimant and asked him to move into her house, saying she could not afford to run it or to board out. He did so and took the place and boarded her and paid the taxes at her request. Held, that he was entitled to be repaid for the taxes and board, less a fair rent for the premises or such part thereof as he occupied.
    Appeal from decree of the surrogate of Westchester county, dismissing the claim of William Lang, an executor.

      Arthur T. Hoffman, for app’lt; H. T. Dykman, for ex’rx, resp't.
   Barnard, P. J.

—William Lang is an executor of the will of Eliza Stringer, deceased. The claim is made up of taxes paid and for board of testatrix in the last year of her life.

The claim was rejected by the surrogate. The claim was proven so far as to call for a judgment for the claimant for some amount. He paid the taxes and gave the receipts to deceased. She asked him to pay the taxes, and they were taxes upon her land. The claim for board and services was proven also for an amount equal to their value.

The testatrix owned a house and two or three acres of land. She occupied it herself, with a servant girl and a young man. The young man was about to. leave, and the testatrix sent for Lang and asked him to move there. She said to him that she could not afford to run the place, and if he came there she would have a home for a lifetime, and that she could not afford to board out. After some hesitation, Lang consented to move on the place, and after that, for some four years, he kept up the place and boarded the deceased until two or three months before her death.

The claim, which shall be found to be the difference between the fair rent of the premises or of that part of the same which Lang occupied and the value of the boards should be allowed.

There is no proof that there was any special contract between the parties. There is a great conflict as to the facts which would go to the amount of the claim.

Ko finding is made as to the claim itself. It is simply found that there was a special contract between the parties. That it is not proven what it was, and that, therefore, the claim be rejected. An executed special contract may be sued upon generally, and the contract price will control the amount of the recovery. Higgins v. Newton, etc., R. R. Co., 66 N. Y., 604.

The proof shows a cause of action and a legal implication arises that the deceased promised to pay for what was furnished. There is express proof of a promise. The deceased accompanied the request by the statement that the claimant would lose nothing by coming.

The decree should be reversed and the proceedings remitted to the surrogate for a rehearing, with costs to abide the event.

Pratt, J., concurs; Dykman, J., not sitting.


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    Michael Malone, App’lt, v. Gussie Knowlton, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Animals—1Trespass—Chabge.
    In an action for injuries to plaintiff caused by defendant’s bull while trespassing on plaintiff’s land, Held, that it was error for the court to refuse to charge as requested that “if the animal wa,s trespassing on the property of the plaintiff, and while there trespassing did damage to the plaintiff then, whether he was a vicious animal or known to be so to the defendant or not, the plaintiff is entitled to recover for the injury.”
    Appeal from judgment in favor of the defendant, and from order denying motion for a new trial on the minutes.
    This action was brought by the plaintiff and appellant against the defendant and respondent to recover damages for injuries sustained by plaintiff by being attacked by defendant’s bull and being thrown down and hooked by him while plaintiff was on his own premises. About 12 o’clock noon of the 17th of June, 1889, while plaintiff'was driving his cows to water, the defendant’s bull jumped over defendant’s portion of the line fence into the field of the plaintiff, and while plaintiff was trying to drive the bull off his premises he was attacked by him and sustained the injuries for which this action is brought.

      Charles Haines, for app’lt; Edwards & Odell, for resp’t.
   Barnard, P. J.

—Proof was given on the trial of this action tending to show that the bull at the time he injured the plaintiff was a trespasser upon the plaintiff’s lands. The plaintiff requested the court to charge “ that if the animal was trespassing upon the property of the plaintiff, and while thus trespassing did damage to the plaintiff thereon, whether he was a vicious animal, or known to be so by the defendant or not, the plaintiff is entitled to recover for the injury.” - The court declined so to charge. The ruling was erroneous. Van Leuven v. Lyke, 1 N. Y., 515. The judgment should therefore be reversed, and a new trial granted, costs to abide event.

Pratt, J., concurs ; .Dykman, J., not sitting.


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    Henry Fleer, Resp’t, v. John Finken et al., Adm’rs, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Decedent’s estates—Claim: against.
    Plaintiff occupied his aunt’s house under an agreement to pay rent, and boarded her therein, for which she promised to pay. Held, that the relationship between them was insufficient to impose upon him any obligation for.her support, and that he was entitled to compensation from her estate for the board, lodging and washing supplied to her.
    ' Appeal from judgment in favor of plaintiff, entered upon the report of a referee.
    Reference of a disputed claim against an estate. The claim presented amounted to $3,068, for board, lodging and washing furnished to decedent between June, 1879, and June, 1887, on which $241 had been paid in 1885 and 1886, leaving due the sum of $2,827. During this period the plaintiff occupied a house belonging to the decedent under an agreement to pay rent therefor.

      Hugo Hirsh, for app’lts; Stephen B. Jacobs, for resp’t.
   Dykman, J.

—This is an appeal from a judgment entered upon the report of a referee.

The plaintiff presented a claim against the estate of Treno Yung to her administrators, which was rejected and referred to a referee for determination under the statute.

The referee reported in favor of the plaintiff and a judgment was entered upon his report.

The claim against the deceased was large and had accumulated during her life, and was properly viewed with suspicion by the administrators, but the proof produced in its support upon the trial found favor with the referee and commanded his belief, and it was natural and unaffected by any inherent improbability.

The proof offered by the defendant was in part stricken from the record because it was inadmissible, and what remained was entirely insufficient to answer the case made by. the plaintiff.

The relationship existing between the plaintiff and the deceased was insufficient to impose upon him any obligations for her support, and there was, moreover, proof of a promise on the part of the deceased to pay for the same. The statute of limitations does not apply.

We find no error in the record and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


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    In the Matter of the Probate of the will of Julia Portingall, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Will—Undue influence.
    Decedent requested her lawyer to draw a new will making a change in the guardian of her children, stating that it was according to the wish of a Catholic priest, who was present. W., the guardian under the former will, objected to her executing it on the ground of undue influence of the priest, and finally tore up the will. Decedent was removed from W.’s house and next day executed another will similar in its provisions, and denied any undue influence on the part of the priest, but stated she had been afraid of W. Seld, that there was no proof of undue influence and that the will was properly admitted to probate.
    Appeal from decree of surrogate admitting the will in question to probate.

      James D. Bell, for app’lt; M. F. McGoldrick, for resp't.
   Barnard, P. J.

—Julia Portingall died in Brooklyn on the 26th of October, 1889, and left the will offered for probate which was executed on the 10th of October, 1889. She had executed a previous will on August 29, 1889. She left three minor children and both wills gave the property to her children. The only material change is in the testamentary guardian of the children. The first will named John Wallace as guardian and the second Mrs. Alice Tombs. The testatrix was a Catholic; her husband was a Protestant in his lifetime and he had been dead about six years before the will was made. The evidence is quite voluminous, but there is not the slightest proof of lack of capacity in the testatatrix. The great issue upon the probate was whether the will was executed under undue influence. Was the alteration of the guardian made by a refusal to administer the rites of the Catholic Church unless the change was made. Upon this point the evidence sustains the finding of the surrogate that it was not so made. Religious feeling entered in the change without doubt. The testatrix on the 9th of October, 1889, was living in the house of Mr. Wallace. On that day a Catholic priest, Father Hash, accompanied by a lawyer, Mr. McGroldrick, went to the Wallace house and after some hesitation was admitted.

The testatrix told McGroldrick that she wished to change her will, and used expressions that the change was according to the wish of Father Nash. She was told that any will must be of her own free will, and she then requested the will to be drawn. It was drawn and read over, and she said it was satisfactory. The will was read over to Mr. Wallace, and he noticed that it named no executors. A new will was drawn with the executors in the former will inserted. It was again read over, and the testatrix said it was' satisfactory. Wallace objected, and the priest was called in and an unpleasant scene occurred. The priest said Wallace was not a Catholic, and Wallace replied that he was not. The testatrix requested permission to sign the paper, and as she took the pen in her hand Wallace reached over and forcibly took the will from before her and tore it up. The testatrix was removed from Wallace’s to the house of a Mrs. Campbell. The next day a new will, like in its terms to the destroyed will, was executed. There were three witnesses to it. The testatrix stated that what she had said the day before about Father ¡Nash was by reason of threats made by Mr. Wallace, and that she wanted to execute this will. This remark was made in the presence of her attending physician, and subsequently to the witnesses to the will. She explained her motion for the change in guardianship and denied all influence over her by Father ¡Nash.

The proof of the transaction at the Wallace house is very contradictory. It is quite- convincing, however, upon a careful reading that there was too much anger to accept the testimony without scrutiny, and that upon the whole evidence there was no undue influence. The testatrix heard objections to the will, but she was firm in her resolution to execute the paper.

Upon the execution of the will there is no conflict.

The will was the act of a free and capable testatrix. She gave the reasons for her will and for the change in it, and stated that she had been afraid, not of the priest, but of the guardian of her children named in the first will on the 9th of October, 1889.

The decree of the surrogate should be, therefore, affirmed, with costs.

Dykman and Pratt, JJ., concur.


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    John McBride, Resp’t, v. The Orange County R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Appeal—Verdict.
    Where the evidence as to the existence of a breach of a covenant was conflicting, hut the testimony of plaintiff, if believed, was sufficient to warrant a verdict in his favor, such verdict will not be disturbed on appeal.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Action to recover damages for breach of a covenant, contained in a deed of lands to defendant, that it would construct a grade crossing at a given point. In July, 1889, plaintiff conveyed a right of way through his land to defendant by a deed containing such covenant, which right of way cut off three acres of his land. Defendant’s contractor raised an embankment three feet high along the right of way with ditches on each side, but built no crossing until April, 1890. By reason thereof plaintiff claims that he was unable to get his crops of hay and onions on his three acres to market, and was damaged thereby.
    Defendant claimed that the cutting off of plaintiff from the use of his lands was the act of an independent contractor, for which it was not liable.

      John J. Beattie, for app’lt; J. W. Gott, for resp’t.
   Dykman, J.

—This appeal presents no error. The defendant was bound, under the agreement with the plaintiff which was contained in his deed, to build and maintain a grade crossing for his use, and the action was for the recovery of damages resulting from a failure to perform that agreement.

Whether there was a breach of the, agreement was the question litigated upon the trial and submitted to the jury, and the verdict was for the plaintiff. The questions of fact being thus settled upon testimony sufficient to sustain the finding, the verdict and judgment cannot be disturbed.

The record presents no error, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


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    The Warburton Hall Association, Resp’t, v. Patrick J. Flannery, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Pleading—Complaint.
    The amended complaint, served on defendant after he had been brought in by interpleader, alleged the performance of services for the city by a certain firm, and the assignment of the claim therefor to plaintiff; its nonpayment; that defendant made claim to said fund, which claim was worthless, and that he was a defendant by interpleader, and demanded judgment against him for the amount of said fund and costs. On demurrer, jHeld, that the complaint stated a cause of action.
    :2. Same—Demurrer.
    It is not a ground for demurrer that the judgment demanded is inappropriate.
    Appeal from interlocutory judgment overruling a demurrer "to the complaint.
    The complaint was as follows:

      First. That the plaintiff and defendant, The Board of Education in the City of Yonkers, are corporations duly organized and ■existing under the laws of the State of New York, and so organized and existing at the times herein mentioned.

      Second. That plaintiff and defendant, said Board of Education, mow are and were, at the time of the commencement of this action, residents of the city of Yonkers, having their offices in, andtrans•acting their business in, said city.

      Third. That heretofore and at all the times mentioned, prior to "the commencement of this action, Thomas Stratford and Ernest .A. Lynde were civil engineers and surveyors, and formed a copartnership for business under the firm name of Stratford & Lynde.

      Fourth. That during said copartnership, and in the month of J une, 1890, said firm was employed by defendant, said Board of Education, to do certain work, consisting of laying out the grounds, drawing plans and superintending work in and about the new high school of defendant on South Broadway, Yonkers, and said work of said firm was reasonably worth the sum of one hundred and thirty-two and 50-100 dollars ($132.50), which said board promised and agreed to pay, and which became due and payable about Sept. 1, 1890.

      Fifth. That thereafter and before the commencement of this action, said claim of Stratford & Lynde was duly assigned for value to the plaintiff, of all of which said Board of Education had notice before the commencement of this action, but declined to pay in whole or part

      Sixth. That no part of said claim has been paid, and that Patrick J., defendant, makes claim to said.fund, but which claim is worthless, and said Flannery is defendant by interpleader.
    Wherefore, by reason of the premises, plaintiff asks judgment against the defendant, Patrick J. Flannery, for the sum of one hundred and thirty-two and 50-100 dollars ($132.50), with interest from September 1, 1890, besides costs.

      F. X. Donoghue, for app’lt; John F. Brennan, for resp’t.
   Pratt, J.

—Although unartificial in form the complaint contained a cause of action.

It showed the'existence of a cause of action, its assignment to plaintiff, that defendant claimed to hold it and had been made defendant in interpleader.

The demand for judgment was inappropriate, but that is not ground for demurrer.

The court properly overurred the demurrer, and. upon expiration of the time given to answer over, entered the proper judgment giving to plaintiff the fund in suit with the taxed costs.

The judgment appealed from is affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


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    The Warburton Hall Association, App’lt, v. Patrick J. Flannery, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Appeal from order denying motion to correct a printed case on appeal.

      John F. Brennan, for app’lt; F. X. Donoghue, for resp’t.
   Pratt, J.

—By the affirmance of the judgment appealed from the appeal of the plaintiff from the order refusing to amend the case loses all importance.

Order affirmed, without costs.

Barnard, P. J., and Dyehan, J., concur.


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    Robert McCulloch, App’lt, v. James Dobson et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Lease—Rep axes by lessee.
    In an action for injury to the premises by the neglect of defendants to keep and perform the covenants of a lease as to repairs, the answer contained a denial and set up a counterclaim for repairs done on the employment of the lessor. The evidence was conflicting, but defendants’ testimony was express that plaintiff told them to get the place put in order and charge it to him. Held,, that a judgment in favor of defendants would not be disturbed.
    Appeal from judgment in favor of defendants, entered on the report of a referee.

      Benno Loewy, for app’lt; George L. Carlisle, for resp’ts.
   Barnard, P. J.

—On the 4th of September, 1884, the plaintiff leased to the defendants a mill in Rockland county for the term of two years from 30th of September, 1884. The lease had a privilege of renewal for an additional term of three years. The rent was $5,000 a year, payable half yearly in advance. The machinery was included in the leasing, and it was agreed that the premises should be in good repair before the defendants took possession. The defendants were to keep the demised property in repair and to surrender at the end of the term in as good state and condition “ as reasonable use and wear thereof will permit.” There was a provision in the lease that if the defendants run the mill overtime the additional insurance risk should be paid by defendants. The occupancy was_ only for the two years. The action is-brought to recover for injury done to the premises and machinery by the neglect of the defendants to keep and perform the covenants as to the repairs of the property. The claim is a large one, amounting to $11,500. There is also a claim made for $300 additional insurance by reason of the mill running overtime. The answer denies the claims in respect to the failure to keep the property in repair, and avers by way of counterclaim that the property was not delivered in good repair; that there was false representation made as to the power of the mill, and that the defendants were employed by the plaintiff to make repairs on the premises, and that they did so to the value of $2,500.

The action was referred by consent and the referee has found that the defendants made repairs upon the premises of plaintiff .and are entitled to pay therefor to the amount of $2,413.15. That -the property was delivered back to the plaintiff in as good condition as reasonable use would permit and in a better condition than it was received by the amount of the repairs made by the defendants under plaintiff’s permission. That there was a failure to deliver twenty dollars worth of the property; that the defendants caused additional insurance to the amount of $362.12. That ■there was a misrepresentation as to the power of the mill, but that the damage therefor could not be estimated from the proof.

The referee gave judgment in favor of the defendants for the ;sum of $2,031.03, being the balance due them after deducting the insurance and non-returned property. The findings cover the issues and all of them. The requests which were not passed upon are all which respects the evidence which bear upon the issues tried. The lease is annexed to the defendants’ answer and no finding as to its terms was needed. Whatever finding was proposed by the plaintiff may be considered as denied and no legal injury would result. The testimony upon the part of defendants is express that the plaintiff told defendant, “You get the place put in order and charge it to me.” While the evidence is conflicting, there is no such preponderance as will justify an appellate court in setting aside the report There is even sufficient evidence to support the finding to be gathered from the very voluminous record which is brought up by the appeal.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: ■ Barnard, P. J.

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    Robert McCulloch, App’lt, v. James Dobson et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Refebence—Incapacity of befebee.
    The report of a referee will not be set aside on the ground that his intellect was impaired when he signed the same, in a case where he died six days after making it from heart disease, where it appears that he personally attended to business as usual up to two days before his death.
    Appeal from order denying motion to set aside the report of a referee.

      Benno Loewy, for app’lt; George L. Carlisle, for resp’ts.
   ■ Barnard, P. J.

—The referee in this case made his report on the 14th of July, 1888. He died on the 20th of July, 1888. A motion was made to set aside his report on the allegation that the referee’s mind was impaired when he signed the same. The proof is overwhelming upon this question in favor of the referee. Up to two days before his death he attended to a leading business personally, with a mind as sound as it had ever been. This is established by members of his family; by his leading clerk; by his physician and by the testimony of lawyers and business men who knew the referee. While there had been failing health for some time before his death, there was no impairment of intellect, and his death was sudden at least from heart disease.

The order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


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    Robert McCulloch, App’lt, v. James Dobson et al., Resp’ts.

      (Supreme Court, General Term, Second, Department,

      Filed July 2, 1891.)

    Costs—Extba allowance.
    The action was brought to recover over $11,000 for non-performance of covenants of a lease ana defendants recovered over $2,000 on a counterclaim. The issues were litigated with great bitterness, and the preparation for trial involved careful study of the subject involved in order to properly examine expert' witnesses. Held, that an extra allowance was properly granted

      Appeal from order refusing to set aside an extra allowance granted to defendants.

      Benno Loewy, for app’lt; George L. Carlisle, for resp’ts.
   Barnard, P. J.

—The order for an extra allowance was properly made. The issues were litigated with great bitterness and a large number of witnesses were called. Some of the questions involved the examination and cross examination of expert witnesses. The attorneys were called upon to examine these witnesses after careful study of the subject involved in the issues.

The case is, therefore, one which called for the additional allowance and the order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


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    In the Matter of the Judicial Settlement of the Account of Henry R. Gordon, Adm’r with the will annexed of Cuthbert C. Gordon, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Exectjtobs and admimistbatobs — Accounting — Policy payable to wipe.
    Policies of insurance payable to the wife of. decedent, who was also ex ecutrix, were paid to her, and she handed them to her son, now administrator, who placed the moneys in bank in his own name as agent. After her death he made a settlement with his half brother, in which he allowed him half of said moneys. Held, that such moneys belonged to the wife and never constituted any part of the estate and were not chargeable to the administrator on his accounting; that he was not estopped by such settlement from claiming that he owned said moneys as sole heir of his mother.
    Appeal from decree of surrogate settling the accounts of the administrator.
    It appeared that certain policies on the life of the testator in favor of his wife had been paid to her; that she had given the moneys so received to her son, the accounting administrator, who placed them in bank in. his own name as agent; that in a settlement made with his half brother after his mother’s death he included such insurance moneys. The surrogate on the final settlement of his accounts allowed him credit for" such moneys as erroneously allowed on such settlement made with his brother.

      Joshua M. Van Cott, for O. G. Bogert, app’lt; Arnold & Greene, for resp’t.
   Dykman, J.

—Without a recitation of the facts which led up to his appointment, it is sufficient to say now that Henry R Gordon became the administrator with the will annexed of his father Cuthbert C. Gordon, deceased, after the death of his mother and brother who were named as executors in the will After his appointment as such administrator, Henry R. Gordon applied for an accounting, and the only person entitled to a notice of the application was O. Gordon Bogert, exeeutor of Cuthbert 0. Gordon, deceased. Cuthbert 0. Gordon was a half brother of Henry B. Gordon, being the son of his father by a former wife, but not the son of Henry’s mother, who was .his father’s second wife.

Bogert appeared in the proceedings and filed objections to the account, and a referee was appointed who examined the same and made a report, which was affirmed by the surrogate, and from that decree we have this appeal.

But two questions were argued before us, and we assume that the other questions presented by the objections to the account have been abandoned.

It was insisted before the surrogate, and the same insistence is made here, that the administrator is chargeable with the amount of certain insurance money paid to the widow of the deceased on two policies of insurance upon his life, and also that he is chargeable with certain bank stock.

The referee found upon the evidence that the life of the testator was insured for $5,000 for the use of his wife Harriet L. Gordon, the mother of Henry, and that the policies contained a covenant to pay the amount to the assured. After the death of the testator, the amount due on the policies, $5,995.93, was paid to the assured, Harriet L. Gordon. She delivered the same to her son Henry on the 5th day of February, 1884, and on the same day he deposited the money in the bank in his own name as agent.

This statement of the case is sufficient to show that the money derived from the insurance company belonged to the wife of the testator, and never constituted any part of his estate, and as a consequence that Henry E. Gordon did not hold the money as the administrator of his father, but held and owned the same as the sole heir at law of his mother after her death.

The next question relates to the ownership of the bank stock, and it is sufficient to say upon that subject that soon after the death of his mother Henry ascertained that the bank stock belonged to her, and that he was entitled to the same as her only heir. That claim was laid before his brother Cuthbert and he acknowledged its justice and made a voluntary transfer of the stock to Henry and allowed him a credit for certain shares which had been paid off.

A question was raised also respecting some Brooklyn bonds, but as it appears that they were purchased with funds received from the insurance company, it follows that they formed no part of the estate of the testator.

It was the contention of the appellant that the conduct of the parties in respect to the insurance moneys indicated their understanding and belief that they belonged to the estate of the testator, and the claim finds support in the evidence and circumstances, but we find nothing which amounts to a waiver of the rights of the respondent.

Our conclusion is that the decree should be affirmed, with costs.

Barnard, P. X, and Pratt, J., concur.


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    Anna Mahoney, Adm’rx, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Master and servant—Negligence.
    There were no eye witnesses of the accident by which plaintiff’s intestate met his death, but it was stipulated that he was injured between two designated cars while coupling them, and that one of the cars was out of repair by reason of the absence of a bumper, which permitted the cars to come so close together as to crush him. Held, that this was sufficient to warrant the submission to the jury of the question whether deceased was injured by reason of the defective car.
    2. Same—Contributory negligence.
    It is not negligence for a railroad brakeman to attempt to couple cars on the inside of a curve, when the signals necessary for him to observe were given on that side.
    3. Same—Defects.
    It is not the duty of an employe to examine cars for defects before attempting to couple them, nor is an accident caused by such a defect as existed in this case one of the risks assumed by him in his contract of service.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Action to recover for the death of plaintiff’s intestate, who was crushed between two freight cars while attempting to couple them in the night time.

      Ashbel Green (A. S. Cassedy, of counsel), for app’lt; John M. Gardner, for resp’t.
   Pratt, J.

—This is an action for damages in causing the death of plaintiff’s intestate, James Mahoney, an employe, on Feb. 11, 1890, while coupling cars.

Three defenses are interposed. 1st. Contributory negligence on the part of the intestate; 2d. That the accident was a risk taken by the defendant in his employment; and 3d. Freedom of negligence on the part of the defendant Coupled with these three defenses is a preliminary one that the evidence does not show with sufficient certainty how the accident occurred.

It was stipulated upon the trial that the intestate was injured between two certain designated cars while coupling the same, and that one of the cars was out of repair by reason of the absence of the bumper, which permitted the cars to come so close together as to crush the deceased.

We think, under the stipulation and proofs, there was sufficient evidence from which the jury might be permitted to infer that the deceased was injured by reason of the defective car. The .exact time and place of the accident was proved; the defect in the car, and the fact that he was crushed between the two designated cars, taken together, afford very strong proof as to how the injuries were inflicted ; enough, at all events, to warrant a submission of the issue to the jury.

The defendants claim that the deceased ougnt not to have, attempted to couple the cars upon the inside of the curve. The evidence disposes of this contention, as it appears the signals were given upon that side which'it was necessary the deceased should observe.

Whether the intestate should not have observed the defect in the car before attempting to couple it is a more serious question, but that has been passed upon by the jury; and in view of some late decisions, we cannot say that their finding should be set aside.

The case of Goodrich v. The N. Y. C. & H. R. R. R. Co., 116 N. Y., 398; 26 N. Y. State Rep., 767, seems analogous to this case in principle, and must be regarded as controlling upon the questions of negligence of the parties, and also whether the accident was a risk assumed by the intestate in his contract of service.

The fact that such work is performed, much of it in the.night time, and in great haste and under much noise and excitement, makes it reasonable that the employe should receive all the protection that reasonable care upon the part of the employer can give.

A fine point is made as to the inspection of this defective car after its arrival at the yard. The jury may have found that the company was negligent in not inspecting it before the accident, and hence not have believed the witness who testified that it was seen and marked “ dead head ” soon after the accident. If we assume it was so marked before the accident, then it would seem to follow that the deceased should have seen the mark and avoided the accident, and also to follow that the defendant did its whole duty in matters of inspection.

So far as the evidence shows the bumper may have been off the car for a long time prior to the accident If such an impression could be drawn, something more was necessary on the part of the defendant than to show a rule of the company by which the inspectors were to be appointed. It was the duty of the defendant to furnish safe cars and to remedy any defects upon reasonable notice or reasonable opportunity to be apprised of any defects.

This part of the case is not as clear ana satisfactory as it might be, but all the issues of negligence were fairly left to the jury, and we think their verdict should stand.

The plaintiff had a right to avoid the release, by showing that it was fraudulently obtained.

We also think the court was right in refusing to fix a time within which the defendant would not be negligent in inspecting the cars at this placa It is plain that such matters depended upon circumstances, such as the number of cars and amount of labor to be performed at the tima It was, therefore, left to the judgment of the jury.

We have examined the exceptions and find no error sufficient to reverse the judgment, which is, therefore, affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.