author: Beady, J.:

text:
    PATIENCE M. GARDNER, Respondent, v. JAMES GARDNER, Appellant.

      Temporary injunction — when it is not dissolved ly the entry of a final judgment.

    The entry of a final judgment in an action does not, uiiless it be so expressly declared therein, dissolve a temporary injunction theretofore granted in the action, where the defendant has appealed from the judgment and given an undertaking to stay all proceedings during the pendency of such appeal.
    Appeal from a judgment of the Special Term adjudging the defendant guilty of contempt.
    The action was brought by the plaintiff to procure a limited divorce from her husband for cruel and inhuman treatment.

      Conlon & McCrea, for the appellant.

      C. F. Whittemore, for the respondent.
   Beady, J.:

The defendant was adjudged guilty of contempt, and an order was made directing his imprisonment until he paid a fine of $600, and the additional sum of $250 imposed upon him for costs and expenses of the proceedings, for a violation of an order of Mr. Justice Donohue made in this case on the 7th of October, 1878, restraining him until the further order of the court from interfering with the plaintiff in her possession and occupancy of the house No. 221 West Fiftieth street and her furniture therein, and from abusing her; and further, adjudging him guilty of contempt in failing to pay the -alimony and allowances directed to be paid by the order of this court, dated October 7th, 1880, and ordering his imprisonment until he paid such alimony, the referee's fees, and a sum unpaid, granted to the plaintiff as an allowance in the action.

This suit appears to have been commenced in 1878, and an injunction was obtained by which the defendant was restrained from conveying, transferring, incumbering or otherwise disposing of any of his property, real or personal, standing in his name or owned by him, wheresoever situated, and he was also enjoined from interfering with the plaintiff and her peaceable occupation of the house No. 221 West Fiftieth street, where she then resided, and from interfering with her keeping and using, as her own, the furniture therein. And he was further enjoined from removing the same or any portion therefrom, and also from abusing or maltreating the plaintiff until the further order of the court. This injunction was dated October 7, 1878. On October 7, 1880, the final judgment or order was made herein upon the report of the referee, but no mention was made in the judgment or order, of the injunction of October 7, 1878, and it contained no continuance thereof by express reference thereto. An appeal was duly taken from the judgment by the defendant, and an undertaking to stay the execution thereof, approved by the court, was duly filed.

It appears, however, that in March, 1878, the defendant sold the premises mentioned and others to his nephew, William H. Moger, and a reference which involved that subject was made, and the referee declared as the result of his examination that the transfer to Mr. Moger was made in fraud of the plaintiff’s rights in the premises and with the intent to delay and hinder her. It is true that he found that in making the transfer the defendant had not acted in disobedience and contempt of any judgment or order of the court, but this would naturally result from the fact of the transfer having been made in March, 1878, and prior, therefore, to the order of injunction which, as we have seen, was granted in October, 1878. The fact is found, however, that the transfer of the premises mentioned was in fraud of the plaintiff’s rights, and with the intent to hinder and delay her, and therefore was void as to her and any rights that she had in reference to them.

It further appears, as a part of the scheme which was designed between the defendant and Moger, that the nephew rented to the former the premises mentioned, and in October, 1880, and after the judgment had been rendered herein, the nephew proceeded to dispossess the defendant for non-payment of rent, and it appears from the evidence that the latter was active in that proceeding, having assisted in procuring the men to remove the furniture and assisting therein, and also to put his nephew in possession of the premises.

The appeal from the order rests chiefly upon the proposition that the injunction granted, being only until the further order of the court, was abrogated by the final judgment.

The answer to this proposition is that the judgment was not accepted, the defendant having appealed therefrom. We think that the following authorities sustain the doctrine that finder such circumstances the injunction is continued unless dissolved by express order of the court, viz.: Power v. Village of Athens (19 Hun, 165); Erie Railroad Company v. Ramsey (45 N. Y., 637); Sixth Avenue Railroad Company v. Gilbert Elevated Railroad (71 id., 433). In this connection see, also, Fellows v. Heermans (13 Abb. [N. S.], 12).

This case illustrates the mischief which might be done by the adoption of the converse rule, it appearing that after the judgment was rendered and the appeal taken, the defendant by collusion with Moger, proceeded to dispossess the plaintiff, and thus to accomplish what the injunction expressly prohibited. As said by Allen, J., in Sixth Ave. R. R. Co. v. The Gilbert R. R. Co. (supra): “ The court should have, and doubtless has the power, notwithstanding an appeal, especially so long as the action is pending in the same court upon appeal from the Special to the General Term, to command respect for its judgments and obedience to its mandate until they are reversed. This power is essential to the administration of justice, and to the respect which the courts of justice have a right to demand from suitors. It would seem to be preposterous that a party could, by the mere order of the court staying his hands from executing a judgment not yet executed, be deprived of the whole fruit of the judgment by the lawless act of the defeated party pending an appeal, without remedy; that he must stand by, and without possibility of' redress, see the subject-matter of the litigation destroyed, so that if he succeeds in affirming the judgment it will be a barren victory.” The principle underlying these observations is equally applicable to this case, for the effect of holding that the appeal supersedes the injunction would be to enable the party, while he repudiated the judgment, to deprive the plaintiff of the benefit which the latter derived from the injunction mandate.

No order dissolving or superseding the injunction was contained in the judgment, and the defendant made no application to attain that result. Assuming, therefore, that the injunction order continued, the conduct of the defendant, as demonstrated by the affidavits, and to which reference has been made, was a clear violation of its terms, and for which he ought to be punished.

The evidence in this case warranted the imposition of the fine, because it appears that the furniture was seriously damaged by the manner in which it was removed to the sidewalk, and the action of the court in inflicting a fine for expenses was also justified. The fine to be imposed shall be sufficient to indemnify the party injured, and to satisfy his costs and expenses. (De Jonge v. Brenneman, 23 Hun, 332.) It appears in this case that the actual damage to the furniture was $427, without reference to the loss of some of it, and the storage thereof, and the inconvenience resulting from the want of it during the time which would be consumed in repairing it, and.from the necessity of repairing and replacing-it. The fine, it is true, must be fixed by proof of the damages sustained, according to the rules of law which would apply in an action for such damage. (De Jonge v. Brennemam, supra.) And such proof was given under the law as it exists. We are inclined to the opinion that the fine imposed was not excessive, and that the order should be in that respect affirmed.

The defendant having given the security provided by the Code of Civil Procedure upon the appeal from the judgment, the order committing him for the non-payment of the sums directed to be paid by the judgment, seems to have been unwarranted.

It is true that the plaintiff’s attorney alleges, that after the service of the undertaking on appeal, he gave notice of his exception to the sufficiency of the sureties, and that the notice of justification in answer thereto was not served in season, and for that reason was rejected at the time. But the undertaking itself, as appears by the appeal papers, was first approved, as required by law, by Justice Lawrence, on the 11th of October, 1880, and then, and it would seem subsequently to the act of that justice, the bond was indorsed, “ I think the sureties sufficient; bond approved. • C. D.” Which indicates a further approval by Mr. Justice Donohue of the bond given, and in the absence of proof to the contrary the assumption is justified that the approval of the last named justice was given after the justification required by law.

The effect of the appeal, the proper bond having been given and approved, was to stay the collection of any of the sums directed to be paid; and we think, therefore, that the order appealed from is erroneous in directing their payment.

For these reasons the order appealed from should be modified so as to require the payment of the amount of the fine and the expenses, namely, $850; and as to the balance, reversed, without costs to either party.

Davis, P. J., and Daniels, J., concurred.

Order modified as directed in opinion.


source: Caselaw Access Project

author: Daniels, J. :

license: Public Domain

text:
    GEORGE W. SMITH, Appellant, v. THOMAS LANE, Respondent.

      When one ma/y administer treatment to a sick persons without a license and is entitled to compensation then'efor — Chapter 486 of 1874 — to whom it is not applicable.

    Chapter 436 of 1874, declaring it to he a misdemeanor for any person to practice medicine or surgery who is not authorized so to do by a license or diploma from some chartered school, etc., does not apply to one who undertakes to cure diseases by manipulating the patient’s body by rubbing, kneading and pressing it; and such person is entitled to recover a compensation agreed to be paid for such services, although he is not a graduate of a medical school and has no license permitting him to practice either medicine or surgery.
    Appeal from a judgment in favor of the defendant, entered upon a trial had before a referee.

      William W. Northrup, for the appellant.
    Winfield, Leeds & Morse, for the respondent.
   Daniels, J. :

The action was brought to recover the price which it was alleged the defendant agreed to pay the plaintiff for the treatment of himself and his wife for certain bodily disabilities. It consisted entirely of manipulation with the hand. It was performed by rubbing, kneading and pressure. The evidence given by the plaintiff was to the effect that he was employed by the defendant to perform these services for a specific compensation, and that he had performed them until the amount due to him was the sum of $149. Upon the close of the case on his part, the referee dismissed the complaint because it appeared that the plaintiff was not a graduate of any medical school, and had no license permitting him to practice either medicine or surgery.’ The direction was given because of the prohibition contained in chapter 436 of the Laws of 1874, and as no other reason appeared in the case or the evidence which was given that would prevent the plaintiff from recovering, and whether this act contains anything subjecting him to such disability, is the only substantial point which requires to be considered in the case. The act did not in terms prohibit any person from following an occupation of this description, and without some prohibition it would seem to be as lawful as any other in which one person might render services at the request of and for the benefit of another. The statute in terms merely declared it to be a misdemeanor for any person to practice medicine or surgery who is not authorized to do so by a license or diploma from some chartered school, state board of medical examiners or medical society, or who shall practice under cover of a medical diploma illegally obtained. (Laws 1874, p. 557, sec. 3.)

And for the purpose of qualifying a person, neither licensed nor possessing a diploma of the nature of that mentioned, to practice medicine or surgery, it was provided that he should obtain a certificate from the censors of a medical society either in the county, district or State, in which it should be set forth that he had been found qualified to practice all of the branches of the medical art mentioned in it. (Id., 556, sec. 1.)

The second section of this act is not required to be considered, for it merely provided the manner in which persons might be obliged to apply for and obtain the certificate. It was in no manner shown upon the trial that either of these societies would issue a certificate for the mere purpose of including in it the occupation followed by the plaintiff. And the language of the act is at varience with the supposition, that it would be done, for the certificate is not permitted to be issued unless the person applying for it shall be found qualified to practice all the branches of the medical art mentioned in it. To entitle a person to a certificate under this provision, it would be necessary that he should be qualified either to practice medicine or surgery in all its branches. If that was not made to appear he could receive no certificate under the provisions of this act. For that reason it appears to be quite manifest that the object of the legislature in the enactment of this chapter was only to provide for regulating the practice of medicine or surgery, as those terms are usually or generally understood, and confining them to such significance, it is evident that they would not include the occupation of the plaintiff. The practice of medicine is a pursuit very generally known and understood, and so also is that of surgery. The former includes the application and use of medicines and drugs for the purpose of curing, mitigating or alleviating bodily diseases, while the functions of the latter are limited •to manual operations usually performed by surgical instruments or appliances. It was entirely proper for the legislature, by means of this chapter, to prescribe the qualification of the persons who might be intrusted with the performance of these very important duties. The health and safety of society could be maintained and protected in no other manner. To allow incompetent or unqualified persons to administer or apply medical agents, or to perform surgical operations, would be highly dangerous to the health as well as the lives of the persons who might be operated upon, and there is reason to believe that lasting and serious injuries as well as the loss of life have been produced by the improper use of medical agents and surgical instruments or appliances. It was the purpose and object of the legislature by this act to prevent a continuance of deleterious practices of this nature, and to confine the uses of medicines and the operations of surgery to a class of persons who, upon examination, should be found competent and qualified to follow these professional pursuits. No such danger could possibly arise from the treatment to which the plaintiff’s occupation was confined. While it might be no benefit, it could hardly be possible that it could result in harm or injury.

And for that reason no necessity existed for interfering with this pursuit by any action on the part of the legislature. It may be that credulous persons would be deceived into the employment of the plaintiff, and in that manner subjected to imposition. But it was no part of the purposes of this act to prevent persons from being made the subjects of mere imposition. If the plaintiff’s pretentions were well founded then diseases would no longer be formidable, and even death itself would be deprived of its terrors. But because he has professed more than he has the ability to accomplish he cannot, on that account, be subjected to the disability provided for in this act. His system of practice was rather that of nursing than of either medicine or surgery. It could, in no event result, in any other injury to the person practiced upon than that of possible financial loss. No bodily disability or diseases could either result from or be aggravated by the applications made by him. And what he did in no just sense either constituted the practice of medicine or surgery. He neither gave nor applied drugs or medicine, nor used surgical instruments. He was outside of the limits of both professions, and neither one of the schools or societies mentioned in the act had jurisdiction over him or could have intervened to authorize, restrict or prevent him in the occupation he was engaged in following. While his services may have afforded no benefit to the persons receiving them, he was not prohibited from performing them by anything in this act; and no other law was violated by the contract which the evidence tended to show had been entered into.

It was not necessary that proof should be given of the value of the services. It was sufficient for the purposes of the action that a contract had probably been made, by which a specific sum was agreed to be paid for their performance. As the case stood, the referee was not justified in dismissing the complaint. The judgment for that reason should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Daniels, J.:

text:
    FRANCIS B. WALLACE, Respondent, v. SAMUEL O. DIMMICK, Appellant.

      Irregularity in form of summons — when the court may allow it to he amended.

    A failure to name in tlie summons tlie county in which, the plaintiff desires the trial to he held, is not such a defect as requires the court to set aside its service absolutely; the court may in a proper case deny a motion to set aside the service of such a summons on condition that a proper summons shall, within five days after the entry of the order, he served upon the defendant.
    Appeal from an order made at Special Term, denying a motion made to set aside the service of the summons on the ground of its irregularity, provided that a summons properly corrected should, within five days after the entry of the order, be served upon the defendant.

      D. Mitchell, for the appellant.

      L. Seymour Ashley, for the respondent.
   Daniels, J.:

The irregularity in the summons consisted in the omission to name the county in which the plaintiff desired the trial to be had. While the provision contained in the Code, declaring the form of the summons, was mandatory in its nature, it did not follow because of that circumstance, that it should have been absolutely set aside because of the defect relied upon in support of the motion. It was, on the other hand, one of those omissions which the court had the power to allow to be corrected.

The authority prescribed on this subject is very extended, including as it does, any omission on the part of the attorney or counsel of the party by which the adverse party is not prejudiced. This was an omission of that description, and within the authority given to correct irregularities of this nature, it could be supplied, as that is allowed to be done by the order from which the appeal has been taken. (Code Civil Procedure, §§ 417, 721, subd. 12 and § 722.)

The case of Osborn v. McCloskey (55 How., 345), did not proceed upon any different construction of these provisions of the Code, or of their force or effect. The circumstances there were peculiar, and not deemed sufficient to justify the interference of the court to relieve the party from the effect of the irregularity appearing in the case. The present case appears to have been a peculiarly proper one for the equitable interposition of the court, by way of allowing the summons to be amended. The order for that purpose was judicious, and it should therefore be affirmed.

Davis, P. J., and Brady, J., concurred.

Order affirmed.


text:
    In the Matter of the Petition of GEORGE M. MILLER, to vacate an Assessment, etc.

      Seduction of assessment — as to the charging of interest upon it.

    Where, upon an application to vacate an assessment, the amount thereof is reduced, interest can only be charged upon the assessment, as so reduced, from the time that the amount thereof is ascertained by the order directing the reduction.
    Appeal from an order made at Special Term, discharging an assessment for sewers in Tenth avenue, between Seventy-seventh and Eighty-first streets. Among the other irregularities claimed by the petitioner to exist, it was shown that the rock excavation which was required to be made in the completion of the work, had not been submitted to competition.

      J. A. Beal, for the Mayor, etc., appellant.

      James A. Deering, for the petitioner, respondent.
   Daniels, J.:

The disposition of the merits of this case is controlled by the recent decision made by the Court of Appeals in that of Merriam, March 25, 1881. The order from which the appeal has been taken must accordingly be reversed and the assessment reduced, so far as that is required to deduct from it the expenses of the rock excavation. The excess beyond that is a legal and valid charge against the property of the petitioner, and the only point now to be determined, is from what period he should be required to pay interest. By section 270, chapter 86, Revised Laws of 1813, interest upon the amount paid to defray the expenses of the improvement was required to be included in the assessment, and by the succeeding section interest upon the amount of the assessment is allowed to be recovered in an action brought for the non-payment of the amount assessed. But neither of these provisions in any way control the point now to be decided, for the first includes only the interest accruing up to the time when the assessment shall be made, while the second provides for the recovery of interest after the assessment has been legally imposed. The present case is not within either of these provisions.

As this assessment cannot be in fact completed until it shall now be directed by the deduction required to be made, the owner of the property affected by it can in no way know the amount he may be required to pay until that shall have taken place. Before that the assessment will possess none of the elements of a completed charge upon his property, and he cannot be in default for failing to pay it. For that reason it would seem to be only equitable to charge him with interest from the time when the assessment shall be definitely and precisely ascertained in its amount. This as a general rule was considered to be a fair and proper exposition of the law in the case of The People v. New York (5 Cow., 331, 334.) And it is the principle which the legislature has incorporated in chapter 550 of the Laws of 1880, by which provision has been made for revising and correcting local assessments in the city of New York. (Laws of 1880, p. 802, § 12.) This, though not controlling, is an unequivocal indication of what the legislature considered to be just and proper for such an emergency.

In the Matter of St. Joseph's Asylum (69 N. Y., 353, 357), a similar point received the attention of the Court of Appeals, and it was there held that interest could only be added to the assessment from the time when it became fixed in amount according to law. That case though different in some of its circumstances from the present, is still the same in principle, and must be regarded as a controlling authority upon this subject.

Upon principle as well as by the force of these authorities, interest can only be charged upon the amount of the assessment from the time when that shall be ascertained by the order to be entered in this proceeding.

The case of Willis is dependent upon the same point, and the •same disposition should accordingly be made of it.

Davis, P. J., and Brady, J., concurred.

Order modified as indicated in opinion.


author: Davis, P. J.:

text:
    DAVID DUNCAN and DAVID B. DUNCAN, Respondents, v. ISAAC B. GUEST, Appellant.

      Arrest of a defendant for fraudulently disposing of his property — when the fraud need not he alleged in the complaint — Gode of Oml Proaedu/re, §§ 549, 550.
    In an action brought upon a promissory note, an order for the arrest of the defendant may be granted where it is shown that he has, subsequently to the making of the note, disposed of his property with intent to defraud his creditors, although such fraudulent acts are not set forth in the complaint.
    Appeal from an order made at Special Term, vacating an order of arrest on the ground that the complaint did not contain a statement of the alleged fraud for which such order had been granted.

      T. Cleveland, for the appellant.

      Cooper & Bach, for the respondents.
   Davis, P. J.:

This action is brought to recover upon several promissory notes, set forth in the complaint. An order for the arrest of the defendant was obtained in the action on the ground that the defendant had, subsequently to the making of the notes, disposed of his property with intent to defraud his creditors. The motion to discharge was on the ground that no allegation of such fraud was set forth in the complaint. But the alleged fraud was an extrinsic fact which arose subsequently to the cause of action. It was not necessary, under the Code, that it should be set forth in the complaint. By subdivision 4, section 549, it is provided that in an action upon contract, express or implied, where it is alleged in the complaint that the defendant was guilty of fraud in contracting or incurring the liability, the plaintiff cannot recover unless he proves the fraud upon the trial. But that provision has no application to the case before us. The right to arrest in a ease of this kind is governed by subdivision 2 of section 550 of the Code of Civil Procedure, whiclj enacts that a party may be arrested in an action upon con tract, where, since the making of the contract or in contemplation of making the same, he has removed or disposed of his property with intent to defraud his creditors. There is no provision which requires such allegations to be set forth in the complaint. They are to be established to the satisfaction of the judge who grants the warrant of arrest, and are not involved in the issues made by the pleadings.

We think the learned judge was mistaken in the conclusion at which he has arrived, and that the order must be reversed and the motion denied, with ten dollars costs and disbursements.

Brady, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order reversed and motion denied, with ten dollars costs and disbursements.


text:
    MARCUS T. HUN, Receiver, etc., Plaintiff, v. JOHN W. SALTER, Defendant.

      Additional allowance — application for, must be made to the justice who 1/ried the ease— General Buie No. 44.
    An application for an additional allowance can only be made to tlie justice before whom tbe trial was bad.
    Motion, on behalf of the plaintiff, to place an appeal from an order, made in this action, upon the calendar for argument.

      Francis C. Barlow, for the plaintiff.

      George H. Forster, for the defendant.
   Daniels, J.:

The trial of this action took place before the Hon. James O. Smith, one of the justices of this court, then holding a Special Term in this department. Judgment has been ordered by him in favor of the plaintiff. An application was afterwards made-before another justice of this court, presiding at Chambers, for an additional allowance of costs. That was denied for the reason that the application should be made to the justice presiding at the trial, and it is from the order following that denial that the present appeal has been taken. The Code itself has not in terms provided to whom the application for the allowance shall be made, and to supply what, appeared to be deficient upon this subject, rule 44 of the general rules of the court was adopted. By that rule the application for an additional allowance of costs can only be made to the court before which the trial has been had. It is not technically a motion as that term has been used in the Code, but it is an application incidental to the trial, for the purpose of completing the relief intended to be afforded to the successful party by the judgment.

The considerations which should control its disposition ordinarily arise out of and are presented by the case itself, as that maybe established by the evidence. In that manner they become familiar to the justice presiding at the trial, and cannot be as well known or appreciated by another afterwards looking through the case. He and he alone must fully understand all its equities, and for that reason he much more competent than another justice of the court to determine whether an allowance should he made, and if it should be, what would he its proper amount. This is clearly the theory upon which this rule was adopted. The application to he made, should therefore have been heard and decided by the justice before whom the trial was had. It is true that in an application which was made before him, he appears to have taken a different view of this subject, but it probably was owing to the circumstance that its peculiarities were not pressed upon his consideration. After the evidence had been taken, it was within his power to reserve the cause for further consideration, and to listen to such arguments either oral or written, as might he pressed upon his consideration, and after deliberating upon them he could determine the case, although that might be done in a diffei’ent portion of the State from that where the tidal in fact had taken place. The consideration of the propriety of an allowance was within the clear limits of this authority. It was peculiarly an appropriate subject for his disposition, and by the terms of the rule he was the only judge of the court who could be properly applied to for the exercise of this ” authority. No useful purpose, therefore, cau be promoted by placing the appeal taken from the order denying the motion made at Chambers, upon the calendar of this court. The motion there was entirely unauthorized. The only mode of relief available to the plaintiff will be to bring the subject again before the learned judge who presided upon the trial, and lie undoubtedly upon giving to it further reflection, and considering the mandatory terms of the rule itself, as well as the fitness of addressing it to him, will be willing to reconsider and dispose of it upon its merits. The present motion must be denied, but without prejudice to the application already suggested.

Davis, P. J., and Brady, J., concurred.

Mo.tion denied.


author: Pee Cueiam :

text:
    ANNIE LAVELLE, Plaintiff, v. PATRICK SKELLY, Defendant.

      Notice of appeal— the court cannot, hy amending it, allow an appeal to he taken from a judgment after the time so to do has expired.

    Upon the trial of this action the complaint was dismissed and a verdict directed in favor of the defendant; and a motion for a new trial, made upon the judge’s minutes, was denied. The plaintiff appealed from the order denying the motion for a new trial, hut not from the judgment. Thereafter, and after the time to appeal from the judgment had expired, upon discovering that the questions he sought to review could not he considered upon the appeal from the order, he applied for leave to amend this notice of appeal hy inserting therein a notice of an appeal from the judgment as well as from the order.

      Held, that, as the time to appeal from the judgment had expired, the court had no power to grant the application.
    Motion for leave to amend a notice of appeal.

      E. D. Culver, for the motion.

      A. Mathews, opposed.
   Pee Cueiam :

On the trial of this action and at the close of the evidence the complaint was dismissed by the court, and a verdidt was directed by it. A motion was thereupon made on the part of the plaintiff for a new trial on the judge’s minutes, which motion was entertained by -the court and denied. The plaintiff then, in due time, served notice of appeal from the order denying the new trial but did not appeal from the judgment. He now asks leave to amend the notice of appeal from the order by inserting therein notice of appeal from the judgment also; and the question presented is, whether the court has power to grant such a motion.

The time for appeal from the judgment has long since expired, but it appears from the affidavits that it was supposed by the appellant’s attorney at the time of bringing the appeal from the order, that all of the questions that could be presented on an appeal from the judgment would be brought up on the appeal from such order, but he has now ascertained that the appeal from the order will not bring the material questions on the trial before this court for review. Assuming for the purposes of this motion that to be so, we are strongly of opinion that if in our power the motion ought to be granted, as otherwise the appellant will fail to be heard in an effort to review the rulings of the court below.

The Code of Civil Procedure (§ 184) declares that the court, or a judge thereof, is not authorized to extend the time fixed by law * * * to take an appeal after the expiration of the time fixed by law for doing it, except in a case where a party entitled to appeal from a judgment or order dies before the expiration of the time within which the appeal may be taken, in which case the court may, on motion, allow the appeal to be taken by the personal representative of the decedent at any time within four months after his death. It is clear from these provisions that the court could allow no appeal from the judgment to be taken as an original proceeding, and the only question is whether the power to amend a notice of appeal from an order can be exercised so as to allow a party to appeal, as of the time of its service, also from the judgment.

"We have looked into this question with care and are of opinion that the court has no authority either to amend the notice of appeal by changing it to an appeal from the judgment, or to add to the appeal from the order an appeal also from the judgment. It would be, in either case, a new appeal bringing up a new record, for the appeal frCm the judgment would of necessity call for a new return, and, as appears from the papers, of the judgment entered up subsequently to the time when the appeal from the order was in fact taken, we think the question is disposed of by the provision of the Code already referred to as well as by authority.

The motion should be denied, without costs.

Present — Davis, P. J., Brady and Daniels, JJ.

Motion to amend notice of appeal denied, without costs.


author: Daniels, J.;

text:
    HENRY W. WEIL, Respondent, v. RUNYON W. MARTIN, Jr., and others, Appellants.

      Failure 4o state the name of the wife of a defendant in a foreclosure suit, in the summons— When an amended complaint need not he served on parties appearing, hut in default —Order for service of summons hy publication — leave to serve it personally without the State need not he given.

    Appeal from a judgment in favor of the plaintiff, recovered on trial of this action at the Special Term, and from an order denying a motion to vacate it.
    This action was prosecuted for the foreclosure of a mortgage, and the same objections were taken to the right of the plaintiff to recover upon the trial as were urged in support of the motion after-wards made to set aside the judgment. In the title of the action as it was given in the summons, and also in the complaint, two of the defendants were not named, but they were referred to and mentioned as the wives of two other defendants who were named. It appeared upon the motion that but one of these defendants had a wife, and the question was whether the omission of her name was such an irregularity as deprived the plaintiff of his right to judgment in the action.
    The court at General Term said: “ It was an irregularity for the reason that the Code required that the summons shall contain the names of the parties, or as much of his or her name as is known, adding in that case a description identifying the person intended.
    In this case only the description was given and that part of the name that was known, and must have been the same, as her husband’s was omitted. In this respect the title was defective under the provisions contained in the Code declaring what it should be. (Code of Civil Procedure, §§ 417, 451.)
    Put this defect was amendable. It did not deprive the plaintiff of the right to a judgment, nor entitle the defendants to have it vacated after it had been entered. Upon that subject it has been provided that a judgment shall not be impaired or affected by a mistake in the name of a party or other person, or for any omission of the attorney or counsel, by which, the adverse party has not been prejudiced. And such omission, defects or imperfections not altering the issue between the parties must, where necessary, be supplied, and the proceeding amended by the court in which the judgment is rendered or by the appellate court. And for. that purpose, the court upon the trial or at any other stage of the action, before or after judgment, is allowed to amend the process as well as the pleadings by correcting a mistake in the name of a party, or adding or striking out such name. In every stage of the action the court is also required to disregard any error or defect in the proceedings aot affecting any substantial right of the adverse party. (Code of Civil Procedure, §§ 721-723.) * * *
    After the complaint had been served it was amended on motion. And in support of the motion to set aside the judgment it was urged that the motion to amend had been made without notice to the attorneys of the parties who had appeared in the action. But the order which was then made recites the fact that due proof of service of notice of that motion upon the attorneys of all the parties who had appeared and demanded service of papers had been filed, and that recital is at least presumptive evidence of the truth of the fact so asserted. By the order then made the name of one defendant was stricken out and those of three others were added. And it has been objected that the proceeding afterwards taken was irregular, because neither this order nor the complaint so amended had been served upon the parties who appeared in the action. The objection cannot be maintained, for there was no necessity for serving either the order or the complaint. The latter was in no way changed in any of its substantial allegations. No different case was made by it against the defendants now complaining of these omissions, and no other relief was sought by means of it, so far as they were concerned, than that which had been demanded by the complaint served upon them, and which they did not find it necessary for the protection of their interests to answer. The cases of McMurray v. McMurrm/ (60 Barb., 117); and People v. Woods (2 Sandf., 653), have been relied upon as authorities requiring that the complaint which had been amended should have been served upon the parties who are in default for want of an answer. But in those cases the complaints were amended in material respects, affecting the rights of the parties who were entitled to be served with a copy of it, while in this case no such change was made in the cause' of action. By the service of a copy of the complaint before these changes were made, the parties in the action had a full and complete statement of the plaintiff’s entire cause of action, and that of the relief which was sought to be obtained by means of its prosecution. And there was certainly no advantage to be secured to them by the service of a copy of the complaint so amended. The amendment related only to the parties to the action and not to the subject of the litigation. For that reason the rule sustained by these authorities required no further service of the complaint to be made upon these defendants. * * *
    The order made, which directed the publication of the summons, did not declare that the summons and complaint might, at the option of the plaintiff, be served personally upon the defendants outside of the limits of the State, and on that account it has been objected to as insufficient. But as no service of that nature was made upon either of these defendants there does not appear to be any substantial support for this objection. The case of Ritten v. Griffith (16 Hun, 454) is not an authority sustaining the propriety of the position which has been taken, for there the order contained no direction for any publication whatever, while the provision made by the Code is peremptory that such direction must be given to warrant a substituted service of this nature of the summons and complaint. To that extent the order is required to go in all cases in order to conform to the unqualified enactment contained in the Code upon this subject. (Code of Civil Procedure, § 440.)
    It is only when the plaintiff may desire to avail himself of the privilege created of serving papers personally out of the State that the order is required to provide for the exercise of that right.
    It is an alternative which he may or may not desire to secure, and when it is not expected that the papers will be served personally beyond the limits of the State no propriety exists for the insertion of the optional right to make such service, in the order of publication. For the purpose of authorizing the service which was made, the order was entirely complete, and the objection taken to it was rightfully overruled in the decision of the motion.”

      A. J. Vanderpoel and Wm. R. Martin, for the appellant.

      Frederic B. Jennings, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Beady, J., concurred.

Judgment and order affirmed.


text:
    JOHN LANDERS, Respondent, v. MORTON C. FISHER, Appellant, Impleaded, etc.

      Appeal — when it should he taken from the original order, and not from a subsequent one amending it — Injunction ordm' — when a party, not restrained by it, may appeal therefrom.

    Appeal from an order made at Special Term denying a motion to vacate an injunction.
    The action was brought to restrain the defendants Meyer and Adíen from paying over to the defendant Fisher certain moneys in their hands arising from the sale of stock belonging to Fisher, on the ground that the plaintiff was entitled to a portion thereof as a commission earned by him for negotiating- and bringing about the sale.
    The court at General Term said : “ By the terms of the injunction order it is stated to have been made upon the complaint, as it had been verified by the plaintiff, and the affidavit of Joseph M. English. Nothing beyond the recital of the fact that this affidavit was produced is made to appear in the ease. For according to the order by which the motion is denied it does not appear to have then been before the court, and it forms no part of the case upon which the appeal has been heard. The right to the injunction must, therefore, depend upon the papers which have been produced in the case, which do not include any affidavit made by English. After the order was made it was amended by adding a recital of further papers which were used upon the motion, beyond those at first mentioned in it. But this addition did not supersede it or make ■another order of it. It still remained the same order which was made denying the motion, corrected only by a further recital. The appeal was, therefore, properly taken from this order. That was the order by which the relief asked for was denied, and the one afterwards made simply corrected it so far as it had been formerly deficient.
    The injunction order did not in terms restrain the defendant Fisher, who was the only party that has appealed from the denial of the motion made to vacate it. But it nominally restrained the other two defendants from paying to Fisher any part of the purchase-price of certain stock belonging to him. By the terms of this order the entire amount of money which had been received by the other defendants upon the sale of Fisher’s stock was required to be held by them and detained from him. lie was no otherwise than this made a party to the order, for it did not m terms prohibit him from receiving the money. It did that, however, in effect, for as long as the other defendants withheld the money from him and were prohibited from paying it over to him, he was in fact precluded from receiving it. And because the order operated in this manner upon his rights and interests he was a party enjoined by it, within the meaning of the terms used in the Code of Civil Procedure, to designate the party who may apply by motion to vacate^the injunction. As to the other defendants the injunction was no cause of embarrassment, for it simply entitled them to hold in their hands over $150,000 not belonging to them. And they, clearly for that reason, had no motive whatever for complaining of its restraint.
    If the party to whom money is payable could not move to vacate the order, then the law might very well be made the cause of great injustice by permitting a person without substantial right to collude with those holding the money or property of another, for the sole purpose of preventing it from going into the hands or possession of the true owner. And the provisions contained in the Code on this subject should not be construed in such a manner as to produce such an unintended result. As they have been framed that construction is not required to be given to them, for the party enjoined must be intended to include the person who in fact is prevented by means of the injunction from receiving what he would otherwise be entitled to take. The defendant Fisher was this party, and he had the right to move to vacate the injunction so that he might be at liberty to receive the money belonging to him. (Code of Civil Procedure, §§ 626, 627.)
    But if these provisions should not be construed as broadly as they have been, then as a party injured by the order he had the right to move to vacate it under the general principle of law sanctioned by the courts, and applied to the relief of a party who may be embarrassed in the enjoyment of his rights by an order improvidently made by the court. (Lowber v. The Mayor, etc., 5 Abb., 325 ; S. C., 26 Barb., 262; Dwight's case, 15 Abb., 259 ; Gould v. Mortimer, 16 id., M8.)

      William G. Wilson, for the appellant.

      D. O. Briggs, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Order reversed and motion granted, with ten dollars costs and disbursements.


text:
    In the Matter of the Petition of STEPHEN UPSON to Vacate an Assessment, etc.

      When the subject of an act is sufficiently expressed in its title— Qhapte/r 872 of 1872, is constitutional — Effect of a clause in a contract requiring extra work to be done at specific prices — to what work it is not applicable.

    Appeal from an order made at Special Term denying the application of the petitioner to vacate an assessment.
    The expenses of the work for which the’ assessment was made, were created by changes in the grade of Fifth avenue, between Ninetieth and One Hundred and Twentieth streets, and were for regulating, grading, curbing and guttering that avenue. The changes were principally made by the commissioners of the Central Park under the authority of chapter 697 of the Laws of 1867.
    The grade of the avenue was again changed in the year 1872, by the department of public works, under the authority of chapter 626 of the Laws of 1870, as that was affected by chapter -872 of the Laws of 1872. By the first of these acts, unqualified power was given to the department of public works to alter, amend and establish the grade of any street retained by them within the boundaries mentioned in its first section, and this avenue was included within that locality.
    By chapter 872 of the Laws of 1872, their powers were transferred to the department of public works, so far as they related to streets, avenues and roads above Fifty-ninth street, and not embraced within the limits of any park or public place. It was in terms there provided as to such streets and avenues that all the provisions of law conferring powers, and devolving duties upon the department of public parks in relation thereto, were transferred to, and conferred upon the department of public works.
    The court at General Term said: “ It has been insisted as this was a local act, that it was- not constitutionally enacted because the subject to which it relates was not sufficiently expressed in its title. By that it was stated to be an act in relation to the Croton aqueduct and other public works in the city of New York. Bnt the. improvement of these streets and avenues and the regulation of their grades was a public work in the city of -New York, and sufficiently related to the other work mentioned, as with it to constitute only one subject. Practically the provisions all relate to one general subject-matter, and for that reason could very well be embodied in the same act. And when that appears to be the case it is not necessary that a detailed statement of the subject of the act shall be contained in the title in order to prevent its failure under the provisions of the Constitution including this subject. The provisions made by the act are local and relate only to the public works of the city, and the title applied to it was sufficiently broad to comprehend them. Upon this subject it has been held that the Constitution does not require that the title of the act should be the most exact expression of the subject which could be invented. It is enough if it fairly and reasonably announces the subject of- the act. A subject is that of which anything may be affirmed or predicated, and if the various provisions have respect to or relate to local improvements the act is not obnoxious to the constitutional objection interposed, and the degree of relationship, if it legitimately tends to the accomplishments of the general purposes, is not material. (.Matter of Mayer, 50 N. Y., 504, 506, 507 ; People ex rel. City of Rochester v. Briggs, Id., 553 ; Matter of Saclcett, Douglas and DeGraw Btreets, 74 N. Y., 95;- Matter of Zborowshi, 68 id., 88; Harris v. People, 59 id., 599.)
    Under these authorities as well as those referred to in the opinions given, the title of the act of 1872 may well be held to be a sufficient statement of its subject to comply with what the constitution has required for the enactment of local and special laws. By means of its authority the powers previously vested over this avenue in the department of public parks were transferred and reposed in that of public works of the city of New York. * * *
    It appeared that other work of a similar nature had been let by contract for the grade of the avenue in August, 1859, and that contract continued to be in force in January, 1875, when the contract was made for the performance of the work required to conform the street to the changes in its grade, established by the commissioners of the Central Park and the department of public works. The first contract contained a clause by which it was agreed that in case the grade should he changed on the avenue or the adjoining streets during the progress of the work, the contractor would conform to the altered grade at the prices estimated in his agreement as far as they were applicable. And it appeared that the expense of the additional work afterwards required to be performed at the prices stipulated for in the first contract, would have been less by the sum of $48,734.63, than as it was in fact done. For that reason it has been claimed that at least a corresponding deduction in the assessments made should he ordered, but when the first contract was entered into, no changes of this nature, under the authority of either of these departments could have been anticipated by the parties, for the laws were not then in existence under which they have been made. It could not consequently have been intended by this clause, inserted in the contract, that the contractor should be required to perform work of the nature of that ordered under the authority of these statutes. It could not by any possibility have been contemplated that such an emergency would arise, and for that reason it could not have been 'within the intention of the parties in making this portion of their agreement. At the time when this contract was made, a different grade had been adopted as the established grade of the. avenue, and its object and purpose evidently was to impose upon the contractor the obligation of doing what further might become necessary by any changes in the grade of the avenue, which the authorities acting under the law, as it then existed, were at liberty to make. And that was clearly not sufficient to include the work required to be done by the action taken by these departments under the authority of the statutes afterwards, enacted. That work on the contrary was a new subject-matter required to be let by itself, as it was, and performed under an agreement adapted to the state of affairs which had then arisen. And the authorities, by whose action it was made, derived their power to make it from laws not in existence at the time of the execution of the first contract. While the terms of this contract were literally broad enough to include the additional work required to be done, it would be a manifest violation of the intention of the parties to extend and apply them to the new subject-matter arising out of the final changes in the grade of the avenue which appear to have been made.

      Charles E. Miller, for the petitioner, appellant.

      J. A. Beall, for the mayor, etc., of New York, respondent.
   Opinion by

Daniels, J.;

Davis, P. J., concurred.

Brady, J., dissented.

Order appealed from affirmed.


text:
    LOUIS DUPARQUET and another, Respondents, v. HERMAN KNUBEL, Appellant.

      Parol evidence of am, independent agreement not contained in a written instrument— when admissible.

    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover the price of a range placed by John G. Armour in May, 1873, in a hotel owned by the defendant, known as the Central Park Hotel. Armour leased the hotel property from the defendant and soon after became dissatisfied with it, and made an arrangement by which he surrendered the premises, together with the range and other things to the defendant. At that time he was indebted to the plaintiffs for the purchase-price of the range. The surrender of the premises themselves was made in writing, and it was stated to have been based upon the consideration of one dollar and other considerations thereunto moving the tenant. The instrument executed, related by its terms only to the surrender of the leasehold premises. As part of the consideration inducing it, evidence was given tending to show that the defendant obligated himself to pay to the tenant the sum of $200, and also to pay to the plaintiffs the debt owing to them for the price of the range.
    The court at General Term said : “ As no provision was inserted in the instrument, by which the surrender of the premises was made, for the disposition of the range, it was entirely consistent with all that was contained in it to show the existence of the agreement alleged to have been made for the payment to the plaintiffs. This was a new subject-matter in no way whatever affected by or alluded to in the written agreement, and in no respect in conflict with any •stipulation or recital contained in it. For that reason the plaintiffs were at liberty to show as they endeavored to do by oral evidence, the existence of the agreement forming the basis of their recovery in this action. Parol evidence may always be given under such circumstances for the purpose of proving a separate and incidental .agreement, relating to matters neither contained in nor alluded to by the terms of a cotemporaneous writing.” (Morgan v. Griffith, Law Bepts., 6 Exch., 70; Pym v. Campbell, 6 E. & B., 370; Limdley v. laeey, 17 Oom. Bench [N. S.], 585 ; Allen v. Pink, 4 31. & W., 142 ; Angelí v. Duke. Law Bepts., 10 Queens B., 174; Butler v. Smith, 35 Miss., 463 ; Miller v. Henderson, 10 Sergt. & Bawle, 290; Huger v. Jacobs, 7 Hun, 220 ; Brewers Fire Ins. Co. ■v. Bwrger, 10 id., 56 ; Lewis v. Seabury, 74 N. Y., 409.)
    As the evidence which was received was admissible in the case, .and it directly tended to establish the making of the agreement ■relied upon by the plaintiffs, there was sufficient disclosed by it, if ;it should be credited by the jury, to render the defendant liable.
      {Burr v. Beers, 24 N. Y., 178 ; Lawrence v. Fox, 20 id., 268; Hutchings v. Miner, 46 id., 456.)

      Isaac L. Egbert, for tlie appellant.

      Frank J. Dupignac, for the respondents.
   Opinion by

Daniels, J.;

Davis, P. J., and Beady, J., concurred.

Judgment and order affirmed.


author: Daniels, J.

text:
    In the Matter of the Petition of Charles E. Appleby to vacate an Assessment, etc.
   Order denying application affirmed. Opinion by

Daniels, J.

       Handed down April, 1881.


author: Daniels J.

text:
    In the Matter of the Petition of Harriet Bell to vacate an Assessment, etc.
   Orders affirmed without costs to either party. * Opinion by

Daniels J.


text:
    In the Matter of the Petition of Lewis Knaust to vacate an Assessment, etc.
   Order appealed from reversed and motion of petitioner denied. * Opinion by

Daniels, J.


author: Davis, P. J.

text:
    Robert Stewart, Respondent, v. John Stewart and others, Appellants.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    William H. Shipply, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Judgment affirmed. Opinion by

Davis, P. J.


author: Daniels, J.,

text:
    The People of the State of New York, Respondents, v. Henry Beyer, Appellant.

   Judgment affirmed. Opinion by

Daniels, J.,

and by Brady, J., dissenting.


text:
    Catherine Hart, Respondent, v. Theodore E. Lyon, Appellant.

   Judgment affirmed. Opinion by

Davis, P. J.


text:
    John Beattie, Survivor, etc., Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellants.

   Judgment affirmed. Opinion by

Daniels, J.


text:
    Mary Ann Campbell, etc., Respondent, v. Charles L. Beaumont, Appellant.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Abraham J. Decker, Appellant, v. Mary McLean, Respondent.

   Judgment reversed, new trial granted, costs to abide event. Opinion by

Davis, P. J.


text:
    Joanna M. Hoare, Appellant, v. James B. Miller, Respondent.

   The principal order modified as directed in opinion, and the other orders affirmed, without costs to either party. Opinion by

Davis, P. J.


text:
    Howard National Bank, Respondent, v. William King and others, Appellants.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    The People’s Bank of the City of New York, Appellant, v. William Heerdt and others, Respondents.

   Judgment affirmed. Opinion by

Davis, P. J.


author: Brady, J.

text:
    Theresa Schiff, Appellant, v. Michael J. O’Reilly, Respondent.
   Judgment affirmed. Opinion by

Brady, J.


text:
    In the Matter of John Schreyer.
   Appeal dismissed, without costs. Opinion by

Brady, J.


text:
    Brewers and Grocers’ Bank, Respondent, v. Moses Mehrbach and Isaac Mehrbach, Appellants.

   Judgment reversed, new-trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    Anna Meiers, Appellant, v. The Metropolitan Gas Light Company, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


author: Brady and Daniels, JJ.

text:
    Adolphus H. Maas, Respondent, v. Cyrus H. Chatfield, Appellant.

   Judgment affirmed, with costs. Opinions by

Brady and Daniels, JJ.


author: Brady, J.,

text:
    Louis Reichardt, Appellant, v. Patrick Sheahan, Respondent

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.,

and by Davis, P. J., dissenting.


text:
    Darius Benham and others, Appellants, v. Michael Dooley and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Thomas Mullaly v. The People of the State of New York.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Patent Elastic Felt Company, Respondent, v. Francis B. Spencer, Appellant.
   J udgment affirmed. Opinion by

Brady, J.


text:
    Adam Moser v. The Mayor, etc., of the City of New York.
   Judgment affirmed. Opinion by

Brady, J.


text:
    The Farmers’ Loan and Trust Company, Respondent, v. Sarah James and others, Appellants.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Davis, P. J., and Daniels, J.

text:
    George A. Vogel, Appellant, v. The Mayor, etc., of the City of New York, Respondent.

   Judgment affirmed. Opinions by

Davis, P. J., and Daniels, J.


text:
    Maria Metzger, Appellant, v. Henry Herrmann, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Alexander Low, Appellant, v. The Brooklyn, Flatbush and Coney Island Railroad Company, Respondent.

   Judgment affirmed. Opinion by

Daniels, J.


text:
    Frederick De Peyster, Respondent, v. John Bright and others, Appellants.

   Judgment reversed, and judgment to be entered as directed in opinion, cost of all parties to be paid out of the fund. Opinion by

Davis, P. J.


text:
    Riley A. Brick, Respondent, v. Frank F. Fowler, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Erastus F. Mead and David S. Duncomb, Trustees, etc., Respondents, v. The Housatonic Railroad Company, Appellant.
   J udgment affirmed. Opinion by

Daniels, J.


text:
    John G. Gottsberger, Appellant, v. Ann Farrell, Respondent
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Edmund J. McCarthy, Appellant, v. John Kelly, Sheriff, etc., Respondent.

   Judgment reversed, new trial ordered, costs to abide dvent. Opinion by

Brady, J.


text:
    Jacob Miller, Appellant, v. John McCloskey, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Brewster Maverick and others, Respondents, v. William D. Marvel, Appellant.
   Judgment and order affirmed. Opinion by

Davis, P. J.


text:
    William R. Kirkland, Appellant and Respondent, v. Samuel R. Krille, Appellant and Respondent, Impleaded with James L. Carnaghan and others.
   Judgment modified as directed in opinion, and affirmed as modified, without costs. Opinion by

Daniels, J.


text:
    Ira G. Whitney and others, Appellants, v. John Waterbury and others, Respondents.

   Judgment affirmed. Opinion by

Davis, P. J.


text:
    Elias L. Frank v. James F. D. Lanier.
   Judgment reversed, and a new trial ordered, unless plaintiff stipulates to deduct the costs included in the judgment; in the event of such stipulation, the judgment, as so reduced, affirmed, without costs to either party. Opinion by

Davis, P. J.


text:
    Walter Shriver and others, Plaintiffs, v. Edwin T. Shriver and others, Defendants.

   Order modified as directed in opinion, and affirmed as modified, without costs. Opinion by

Davis, P. J.


text:
    The Lake Superior Iron Company, Appellant, v. Joseph W. Drexel, Respondent.
   Judgment and order affirmed. Opinion by

Davis, P. J.


text:
    Zophar Mills, Respondent, v. Albert A. Miller, Appellant.
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    Henry Hentz, Respondent, v. Albert A. Miller, Appellant.
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    Edmund R. Morris, Respondent, v. Ira B. Tuthill, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    John Clapp, Jr., Respondent, v. Warren B. Sage, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Joseph Emerson, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
   Judgment reversed, new trial ordered. Opinion by

Daniels, J.


author: Davis, P. J.,

text:
    The People of the State of New York ex rel. John Murphy, Appellant, v. Stephen B. French and others, Commissioners, etc, Respondents
   Proceedings affirmed. Opinion by

Davis, P. J.,

and Daniels, J.; and by Brady, J., dissenting.


text:
    Charles Pfaendler, Respondent, v. Peter Bowe, Sheriff, etc., Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Frank W. Greene, Respondent, v. Artemas Bigelow and William A. Thomas, Appellants.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Theodore W. Dwight, Respondent, v. Samuel N. Dada, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Samuel Philips, Appellant, v. William Mackellar, Respondent.
   Judgment affirmed. Opinion by

Davis, P. J.,

and by Daniels, J., dissenting.


text:
    The People of the State of New York ex rel. O. L. Jones, Appellant, v. William H. Kelly, Respondent.

   Motion to quash inquisition granted. Opinion by

Daniels, J.


text:
    In the Matter of Benjamin A. Willis.
   Order modified as indicated in opinion of Daniels, in the Matter of Miller.


text:
    People ex rel. Julius Meyer, Plaintiff in Error, v. The Court of Special Sessions, etc., Defendants in Error.

   —Judgment affirmed. Opinion by

Daniels, J.


text:
    Randolph Guggenheimer, Plaintiff, v. John Sullivan, Defendant.
   Judgment ordered as directed in opinion. Opinion by

Daniels, J.


text:
    Ambrose J. Agate, Appellant, v. Ann Eliza Agate, Respondent.

   Judgment reversed, new trial ordered, costs to both parties to abide event. Opinion by

Davis, P. J.


text:
    Augustus D. Leighton, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Judgment affirmed. Opinion by

Daniels, J.


text:
    Catharine Mallon, Respondent, v. James Duffy and others, Appellants.

   Judgment affirmed. Opinion by

Brady, J.


text:
    In the Matter of the Security Life Insurance Company.
   Order affirmed on the opinion of Daniels, J., in the court below.


text:
    Samuel Gross and others, Appellants, v. Aaron M. Clark, Administrator, etc., Respondent.

   Order affirmed with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Abraham J. Friedman, Respondent, v. Israel Grodzinski, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of John Matthews.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Theodore Moss, Respondent, v. William B. Barton and Frank Lawlor, Appellant.

   Order reversed and motion denied, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    John Kelly, Respondent, v. Nelson J. Waterbury, Appellant.
   Order modified as directed in opinion, and affirmed as modified. Opinion by

Daniels, J.


text:
    Eleanor B. King, Respondent, v. William Mackellar, Appellant.

   Judgment affirmed.


text:
    The General Theological Seminary of the Protestant Episcopal Church of the United States, Respondent, v. Morris Lesser and Louis Lesser, Appellants.

   Judgment affirmed.


text:
    George Leeds, Respondent, v. The Metropolitan Gas Company, Appellant.

   — Judgment affirmed.


text:
    Edward J. King and Rosalie King his wife, Respondents, v. Sylvester Brush and Sarah his wife, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Stephen Lee and others, Appellants, v. John Pfeiffer and others, Respondents.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Emma J. Mason, Appellant, v. Lydia C. Libby, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Dora Schniker, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Judgment affirmed.


text:
    Thomas Hassett, Respondent, v. The Mayor, etc., of the City of New York, Appellant.

   Judgment reversed, motion denied, with costs. Opinion by

Davis, P. J.


text:
    Darley Randall, v. The Mayor, etc., of the City of New York.
   Motion granted, unless appellants file the papers required by rule forty-four with the clerk within forty days and pay fen dollars costs of motion.


text:
    Appleton Morgan, v. I. C. Clemens.
   Motion granted, unless appellant print and file the papers required by rule forty-four with the clerk within forty days and pay ten dollars costs of motion.


text:
    Moses Heilman, Respondent, v. Isaac Lazarus, Appellant.
   Judgment affirmed.


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    The People of the State of New York ex rel. Thomas F. Schaeffer, Appellant, v. Stephen B. French and others, Commissioners, etc., Respondents.

   Writ dismissed on the ground of laches, without costs.


text:
    Samuel R. Dummer, v. Henry A. Frost.
   Motion granted, unless appellant propose and serve papers on appeal within sixty days, without costs.


text:
    The People of the State of New York ex rel. Thomas Gilmore v. John Callahan.
   Order settled.


text:
    The People of the State of New York ex rel. Thomas Flynn, Appellant, v. William A. Butler, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


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    Harvey Farrington and others, Respondents, v. Samuel H. Stevenson, Appellant.

   Order reversed, and motion granted, with ten dollars costs and disbursements.


text:
    Emma L. Van Ness Appellant, v. William Noble, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    The New York Silk Manufacturing Company, Respondent, v. Edwin J. Epstein, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


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    Emma J. Dargin, Respondent, v. Palmer B. Wells, Appellant, Impleaded, etc.
   Order reversed, and motion granted, with ten dollars costs and disbursements, without prejudice to another application upon proper papei’s. Opinion by

Brady, J.


text:
    Acalus L. Palmer, Respondent, v. Erwin A. Hussey, Appellant.

   Order affirmed, with, ten dollars costs and disbursements, on the opinion of

Daniels, J.


text:
    Mary Richardson, Respondent, v. The Westchester Insurance Company, Appellant.

   Judgment affirmed.


text:
    William Tracy and Frederick S. Tallmadge, Respondents, v. Daniel Stearns and Henry Stearns, Appellants.

   Order reversed, case restored to calendar. Opinion by

Daniels, J.


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    John A. Gray, Appellant, v. Henry A. Burr, Respondent.

   Order modified as directed in opinion, and affirmed as modified, without costs to,either party. Opinion by

Davis, P. J.


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    Dudley E. Gautier and Josiah H. Gautier, Respondents, v. Thompson J. Flint and The Russell & Erwin Manufacturing Company, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    George P. Kuntz, Respondent, v. Christian Bachman, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements, Opinion by

Brady, J.


text:
    In the Matter of the Broadway Underground Railway Company.
   Motion granted. Commissioners appointed and order entered.


text:
    The Rocky Mountain National Bank, Appellant, v. George Bliss, Respondent.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Samuel H. Randall, Appellant, v. Josiah Carpenter and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


author: Per Curiam.

text:
    The People of the State of New York v. The Manhattan Railway Company.
   Motion denied. Opinion

Per Curiam.


author: Smith, J.:

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    JOSEPH A. STULL, Appellant, v. GILBERT WESTFALL, Respondent.

      Injunction — must rest on allegations of complaint — the affidavits only corroborative — Injunction to restrain the doing of an act “ to the injury of the plaintiff,” denied— Vovencmt in absolute restraint of trade, not presumed.

    On an application for an injunction, facts as to which the complaint does not contain any allegations, must not be alleged in the affidavits, as the affidavits are to be considered only as evidence of the allegations made in the complaint.
    An injunction will be denied where it is asked not to restrain the doing of an act, but the doing of the act ’to the injury of the plaintiff; such injunction will be denied because of the inconvenience of enforcing an injunction, for every alleged breach of which a trial must be had in order to determine whether the act was or was not injurious to the plaintiff.
    What is not a violation of an agreement not to solicit customers on a certain milk route, to buy milk or to injure a certain business.
    A covenant in absolute restraint of trade is not to be implied from doubtful-words.
    Appeal from an order of tbe Monroe Special Term, setting aside an injunction order granted ex parte.

      Stull cfc Bennett, for tbe appellant.

      P. B. Huleit, for tbe respondent.
   Smith, J.:

The injunction order was granted upon the complaint and certain affidavits accompanying it, alleging an employment by the plaintiff of the defendant in the business of selling milk in the city of Rochester, in the production of which the plaintiff was engaged on a farm owned by him a few miles from said city, and a parol agreement on the part of the defendant not to solicit business from the customers of the plaintiff after the termination of that employment. The defendant’s agreement, as alleged in the complaint, was that he would not, at or after the final termination of such employment, in any manner, directly or indirectly, himself or by his agent, solicit the customers or any of them on said milk route of said plaintiff, to buy milk of him, said defendant, or do anything whatever to divert the trade or injure the business of said plaintiff in said city of Rochester, or in any manner, directly or indirectly, interfere therewith.” The affidavits state the agreement more broadly, and aver that the defendant was employed upon the express understanding and agreement, not only that he would not in any manner interfere with or divert trade from the plaintiff on his said route or injure his business in any manner, but also that he would not sell or offer to sell milk or cream to the plaintiff’s customers or any of them on his said route. The injunction order restrained the defendant from soliciting trade upon the milk route of the plaintiff, and from selling or offering to sell milk or cream to any of his customers upon said route. In chancery the rule was that facts not founded on allegations in the bill must not be introduced into the affidavits, and that the affidavits are to be considered only as evidence of the allegations made in the bill and cannot be attended to as laying a foundation for equities not otherwise claimed. (Kerr on Injunctions [Boston ed.], 1811, p. 613, § 23; Dawson v. Yates, 1 Beav., 301; Burgess v. Horne, 14 L. T., 461.) The same rule is yet in force, although under the present Code an injunction order may be granted on affidavits before the complaint is filed or served. (Sec. 608.) Section 628 of the Code provides that the granting or denial of an application to vacate or modify an injunction order, either upon the papers on which the order was granted or upon proof by affidavit on the part of the defendant, or both, does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint which had not been made at the time of the former application, to set forth a cause .of action sufficient to entitle the plaintiff to the injunction order upon one or more grounds recited therein. We are to take the agreement then, as stated in the complaint, and, as there alleged, the defendant agreed not to solicit the plaintiff’s customers to buy of him, and not to divert his trade, or injure or interfere with his business. He did not bind himself not to sell milk, but his agreement was not to sell to the prejudice of the plaintiff. A covenant in absolute restraint of trade is not to be implied from doubtful words. If purchasers applied to the defendant of their own accord, without any solicitation on his part, his agreement did not stand in the way of his selling to them, even although they were former customers of the plaintiff. The affidavits on the part of the defendant tend, very strongly, to show that he has done just that and no more. The plaintiff alleges sales to forty of his old customers, but the affidavits of about that number of persons are produced, who state that they were customers of the plaintiff and that since the defendant set up for himself, they have bought of him, but without any solicitation on his part, and the defendant swears to the same thing. If, after the defendant engaged in the business, the plaintiff’s old customers partronized the defendant of their own motion, without any solicitation or interference on his part, the defendant is not thereby chargeable with a breach of his agreement, for his sales were not injurious to the plaintiff, in a legal sense. He had a right to engage in the business of selling milk in Rochester, and to sell to all who voluntarily came to him, including the plaintiff’s customers, if not solicited by him or his agents. If the injunction were to stand, it would be necessary in every case of an alleged breach of its provisions, to try the question whether the sale was under such circumstances as to amount to a legal injury to the plaintiff. That is a sufficient reason for denying the injunction and leaving the plaintiff to his remedy upon the agreement. The case of Collins v. Plumb (16 Vesey, 454), cited in Stephens v. Aulls (3 T. & O., 781), is in point. There was a covenant, upon a conveyance in fee, with the grantors, lessees of water works, not to sell or dispose of watei from a well to the injury of the proprietors of the water works. A demurrer to the bill was allowed from the inconvenience of enforcing, such a covenant by injunction, inasmuch as upon every alleged breach a trial must be had to ascertain whether the act was injurious to the plaintiffs. Lord Eldon, in deciding the case, said: This, however, is a covenant not against selling the water of this well, but against selling it to the injury of the proprietors of these water works, and those words being ■ infused into the covenant, the plaintiffs at law must prove not only that the covenant is broken, but that it is broken in a sense that can be represented as injurious.”

The plaintiff’s affidavits, as has been said, allege that the defendant agreed not to sell to plaintiff’s customers on his route, and the injunction restrained the defendant from so doing, but in that particular the affidavits and injunction are not sustained by the complaint. We are of the opinion that the order vacating the injunction should be affirmed on the ground above stated, without considering the other points made by the respondent’s counsel.

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

Order vacating the injunction affirmed, with ten dollars costs and. disbursements.


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    ROBERT W. LAIRD and PETER B. LAIRD, Respondents, v. RUSSELL G. ARNOLD, as Administrator, etc., of ASHBEL H. ARNOLD, Deceased, Appellant.

      Tombstone — a charge against the estate — action at law for the price thereof, against an administrator as such, proper. — effect of the administrator giving his individual note for the price.

    A tombstone was erected over the grave of the defendant’s intestate by defendant’s direction. After the tombstone was ordered the defendant said that he had not the money to pay for it, and at his request the plaintiffs accepted his individual note for its value.
    In an action against the defendant as administrator, held, that the funeral expenses of the intestate were a charge upon his estate and that the defendant was liable in an action at law as administrator, unless he contracted with the plaintiffs solely in his individual capacity.
    That as there was evidence tending to show that the defendant made the contract for the tombstone as administrator, and it did not appear that his individual note was not given merely as collateral to his original indebtedness as administrator, that the plaintiffs should not have been nonsuited.

      Appeal by the defendant from an order of the Monroe Special Term, setting aside a nonsuit ordered herein and granting a new trial.

      Paggert <& Norton, for the appellant.

      A. M. Bingham,, for the respondents.
   Smith, J.:

The action was brought to recover the price of a monument or tombstone, manufactured and furnished by the plaintiffs and erected by them over the grave of the defendant’s intestate and the intestate’s wife, at the request of the defendant, as administrator. It appeared at the trial, that after the tombstone was ordered, the defendant said that he had not the money to pay for it and requested the plaintiffs to take his note for it, which they did. At the close of the plaintiff’s testimony the defendant moved for a nonsuit on the ground that the receiving of the individual note of the defendant was payment; that there was no evidence that he contracted the debt as administrator; that the debt proved is one against the defendant personally and not as administrator; and that if any cause of action exists against the estate, it is an equitable one and not an action at law. The motion for a nonsuit was granted and the plaintiffs excepted.

In the case of Dalrymple v. Arnold, admr. (21 Hun, 110), which was an action against this same defendant, as administrator, for the price of the coffins in which the intestate and his wife were buried, we held that the funeral expenses of the intestate and those of his wife were a charge-upon his estate. The case of Patterson v. Patterson (59 N. Y., 574), was cited as authority. Reference was also had to section 1, title 4, chapter 6, part 2 of the Revised Statutes, as amended by chapter 267 of the Laws of 1874. Our decision was published after this cause was tried, and it is understood that in consequence of it, the learned judge who tried the cause, set aside the nonsuit. Adhering to that decision we hold that the defendant was liable as administrator, unless the plaintiff contracted with him solely in his individual capacity. There was some evidence tending to show that the defendant contracted as administrator, and for aught that appears, the note, which seems to have been given subsequently to the making of the contract, was merely collateral to the original indebtedness. At least, the evidence on those points justified the plaintiffs request that the case be submitted to the jury.

The order should be affirmed.

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

Order appealed from affirmed.


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    CHARLES L. BINGHAM as Administrator with Will annexed of VERONA JONES, Deceased, Respondent, v. GRACE E. JONES and MARY A. JONES, Appellants, Impleaded with JAMES JONES and Others.

      "Witt — suspension of power of alienation — Bight of an administratin' with the will annexed to exercise a power of sale.

    A testator gave one-third of his estate to a son for life, and. directed that on the son’s decease such third should be added to the other two-thirds of which the interest was directed to be paid to the testator’s grandchildren, share and share alike; and further provided by his will, “and then from and after the decease of my grandchildren, I direct my executor to pay the amount remaining after paying all expenses of settlement and disbursements thereof, to each of my great-grandchildren share and share alike.”

      Held, that the gift to the grandchildren was to each of them in severalty and not to them jointly, and that on the death of each grandchild his share would pass directly to the great-grandchildren as absolute owners. That therefore as to the one-third of the estate given to James for life, the power of alienation was not suspended for more than two lives in being, and as to the remaining two-thirds of the estate for only one life.
    The will provided that in case certain of the grandchildren neglected to support their parents, “ the said legacy in payment to them to be stopped and the said payment shall revert to the general fund for the benefit of my other grandchildren and great-grandchildren as hereinbefore mentioned.”

      Held, that the effect of a failure on the part of the grandchildren to support their parents, would be to work a forfeiture of the remainder of their life estates and transfer such life estates to the other grandchildren, who would hold such forfeited estates only during the lives of the grandchildren by whom they had been forfeited, and on the death of the latter such interests would uass to the great-grandchildren.

      Held, further, that the title to the personal property vested in the administrator with the will annexed, in trust for the purposes of the will.
    That the title to the real estate was vested in the devisees, subject to a power of sale to be implied from the provisions of the will.
    That it appeared from the provisions of the will that the testator intended to clothe his executor with a power of sale over the real estate, and as such power was essential to the discharge of his duties, and not discretionary, that such power vested in the administrator with the will annexed.
    Appeal from a judgment, entered on a decision made at the Monroe Special Term, giving a construction to the will of Verona Jones, deceased, and adjudging that said will “ in all things except as to the appointment of an executor and the provisions for the payment of debts was wholly void and of none effect.”

      A, J. Abbott, for'the appellants.

      L, N. Bangs, for James Jones, defendant.

      A. M. Bingham, for James H. Clute and certain others, infant defendants.

      W. A. Sutherland, for the respondent.
   Smith, J.:

By the first clause of her will, the testatrix gave the use of one-third of her estate, real and personal, to her son, James Jones, for his rise during his natural life, and then proceeded in the following words: “ From and after his decease the said one-third part shall revert to the general fund which I do hereinafter establish for the benefit of my grandchildren and great-grandchildren.” The second clause was as follows: “ Second. I give and bequeath the use of the remaining portion of property during the life-time of my son James Jones, to each and every one of my grandchildren, share and share alike,- in the use and interest thereof, and from and after the decease of my son, James Jones, I direct my executor, hereinafter nominated, to pay to each of my grandchildren the interest which shall have accumulated thereon to my said grandchildren, share and share alike, and therefrom and after the decease of my grandchildren, I direct my executor to pay the amount remaining, after paying all expenses of settlement and disbursements thereof, to each of my great-grandchildren, share and share alike, to have and to hold the same forever as their right and property, provided the children of my son George W. Jones shall provide for and care for the wants of their father and mother, during the term of the natural life of each, and in case the said children shall neglect to provide the natural needs and wants and necessaries of life of their said parents, then, ^.nd in that case, I do order the said legacy in payment to them to de,stopped, and the said payment shall revert to the general fund for the benefit of my other grandchildren and great-grandchildren as- hereinbefore mentioned. And I further direct my said executor to keep said general fund, before mentioned, secured and loaned upon real estate by bond and mortgage.”

The testatrix left real estate worth about $1,100, and personal property of the value of $5,000. She left two sons, James and George. James was unmarried at the time of the death'of the testatrix, but has since married and at the time of the trial had no issue.' -George was married and had three children, who are defend ants in this action, two of whom are the appellants. George was largely in debt and was insolvent. The defendants, James H., Charles and Sarah J. Clute, are the children of a deceased daughter of the testatrix, and the defendants William and Charles O. Clute, are children of James H. Clute, and great-grandchildren of the ■testatrix-.

- "It is claimed on the part of James Jones, that the intention of the testatrix, as manifested by the second clause of the will, was that no part of the estate should go to the great-grandchildren until after the death of all the grandchildren, and that an illegal suspension was thereby created. The learned judge who tried the case at Special -Term, was of the opinion, however, that the gift to the grandchildren was to each one in severalty, and not to them jointly, and in that we concur. (Savage v. Burnham, 17 N. Y., 561; Everitt v. Everitt, 29 id., 39; Stevenson v. Lesley, 70 id., 512; Monarque v. Monarque, 80 id., 320.) Thus construed, the provision does not work an illegal suspension, as on the death of each grandchild his share will pass directly to the great-grandchildren as absolute owners. As to the one-third of the estate given to James for life, the power of alienation of the real estate and -the absolute ownership of the personal property are not suspended for more than two lives in being, and as to the remaining two-thirds, the suspension is for one 'life only.-

It is further contended by the respondents that an illegal suspension may be produced by a breach of the provision contained in the second clause for the support of George W. Jones and his wife by their children, and in that view the special term judge concurred, and on that ground he held the entire will void so far as it undertook to dispose -of the estate. That conclusion seems to have been reached by assuming that on a breach of the condition by the children of George, their shares would pass to the other grandchildren, and at their death to the great-grandchildren, and thus the absolute ownership of the portion of the one-third of the estate given to James for life, which forms part of the three shares set apart for the three children of George, would be suspended in the event of a breach of the condition for a longer time than is allowed by law ; first, for the life of James ; secondly, from the death of James to the time of the breach ; and, thirdly, for the lives of the other grandchildren (three in number), for whose benefit such shares are to be held in casé of such breach.

But as we read the will the period of suspension would not be extended by a breach of the condition. The only effect of such breach would be to work a forfeiture of the remainder of the several life estates of George’s children, and to transfer such life estates to the other grandchildren. On the death of one of George’s children, the estate so forfeited by and transferred from him would cease. It would not endure during the lives of the other grandchildren as seems to have been assumed at Special Term. So that whether there be a breach or not, the ownership of the share of one of George’s children would not, in any event, be suspended for more than two lives, to wit, his own life and the preceding life of James.

In short, we think the proper construction of the will is that as to the third given to James, successive life estates are created, first in James in the entire third, next in the grandchildren in severalty in equal shares, remainder in each share on the death of its taker to the great-grandchildren absolutely, and that such remainder vested on the death of the testatrix, subject to open and let in after-born great-grandchildren.

One of the questions submitted is whether the title to the real and personal property is vested in the executor or in the administrator with the will annexed as a trustee under the will, or whether it is vested in the beneficiaries who are finally to receive the same. The title to the personal property is in the administrator with the will annexed, in trust for the purposes of the will. The title to the real estate, we conceive, is vested in the devisees, as already stated, subject probably to a power of sale to be implied from the provisions of the will. As the use of one-third of the real estate, as well as personal, is given to James during his life, no power to sell is created by the will until after his death, but the direction that on the happening of that event, the said third shall fall into the general fund established by the will, and that the executor shall keep said general fund invested in bond and mortgage, the income of which he is required to pay to the several legatees as therein specified, very clearly implies that the testatrix intended to clothe the executor with a power of sale, since without it he could not discharge the duties devolved upon him. And as the duty of selling was not left to his discretion, but was made imperative, we incline to the opinion that the power is vested in the administrator with the will annexed and so hold in this case, though the latter point is not well settled. (See Bain v. Matteson, 54 N. Y., 663, and cases there cited by Reynolds, Com.)

The judgment of the Special Term should be reversed, and a judgment ordered declaring the will valid and construing it as above indicated, with costs of the appellants and of the plaintiff to be paid out of the estate.

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

So ordered.