text:
    MICHAEL QUINN, as Administrator, etc., of JOHN FAHEY, Deceased, Respondent, v. GEORGE H. POWER, Appellant.

      Evidence — action far negligent killing — the general character of the deceased for industry and kindness may he shown — specific acts cannot.

    This action was brought by the plaintiff, as administrator of his son, to recover damages for the alleged negligent killing of the latter by the defendant. Upon . the trial letters written by the son to his father, who lived in Ireland, were against the defendant’s objection and exception received in evidence. The letters tended to show the good character of the deceased, his affection for his father and relatives and his good intentions in their behalf.

      Held, that the court erred in admitting the letters.
    Although in actions of this kind it is proper to show the habits and character of the deceased for industry and active kindness towards his relatives, specific acts or declarations cannot be shown unless, perhaps, on cross-examination.
    (Per Learned; P. J.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial made upon the minutes by the justice before whom the action was tried.
    The action was brought to recover damages for the death of the plaintiff’s intestate, his son, which was alleged to have been caused by the- defendant’s negligence. The action has been tried three times; has been twice before the General Term and once before the Court of Appeals. The opinion of the General Term upon the first appeal is reported in 17 Hun, 102.

      Newkirk c& Chase, for the appellant.

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

The only question which need be considered is that as to the admission of letters, written by the deceased to his father. That was not passed upon when the case was here before.

The counsel for the plaintiff admits, in arguing, that, if these letters are admissible, then verbal statements made by the deceased to his father of the same character would also be admissible. And clearly no distinction could be made.

It is claimed by the ¡fiaintiff that the letters tend to show the pecuniary damages caused to the father and other relatives by the death of the deceased. The only manner in which these letters could have any such tendency is by showing the character of the deceased, his affection towards his relatives and his good intentions in their behalf. And it must be said that the letters are very creditable to the deceased, and indicative of a right disposition on his part towards his father’s family.

We think, although the question is not presented directly, that in such an action as this it is proper to show the habits and character of the deceased for industry and for active kindness towards his relatives. But assuming this to be so, we are of the opinion that specific acts are not to be proved, except as they might perhaps be brought out on cross-examination. The habits and character of the deceased, are topics, on which the defendant may, with fairness, be assumed to be prepared wi<h answering evidence, if such there be. But the defendant could not be expected to meet and contradict specific acts of kindness or specific expressions of good will. Furthermore if specific acts are to be admitted on the one side, they must be on the other; and each must be open to contradiction and explanation. This might make a very wide field for inquiry, in regard to the particulars of which the opposing party would generally be unprepared. And the result of all would only be to establish what were the character and habits of the deceased, in the respects above mentioned. These are matters as to which direct proof is possible.

We are referred to no authority to justify the admission of those letters; and wre cannot think that their admission is sustained by principle. They are only the statements of the deceased, which can seldom be allowed to be proof in his favor or in favor of his administrator.

For these reasons the judgment and order must be reversed and a new trial granted, costs to abide the event.

Present — Learned, P. J.; Boardman and Bockes, JJ.

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


source: Caselaw Access Project

author: By the Coukt :

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES H. EVERETT and JOSEPH C. TREADWELL, Respondents, v. THE BOARD OF SUPERVISORS OF ULSTER COUNTY, Appellant.

      Commissioners of highways are not agents of the town — a judgment against the commissioners is not a judgment against the town.

    A judgment recovered against the commissioners of highways of a town is not a judgment against the town, and the hoard of supervisors of the county cannot he compelled hy mandamus to levy the amount thereof, upon the property of the town.
    Appeal from an order awarding a peremptory writ of mandamus commanding the defendant to apportion the amount of a certain judgment recovered by the relator, upon certain towns in Ulster county, which formerly constituted the town of Kingston, and to levy the amount so apportioned upon them. The relators recovered the judgment on January 2, 1882, against the then commissioners of highways of the town of Kingston. The judgment was recovered for services rendered in grading and repairing a highway in the ‘town, in pursuance of a contract entered into with the commissioners of highways.

      John J. Lmson and Howard Chirp]), Jr., for the appellant.

      J. Newton Fiero, for the respondents.
   By the Coukt :

A question is presented in this case which does not arise in the cases of similar character argued at this term.

The relators have only a judgment against the commissioners of highways. This is not a judgment against the town. (People ex rel. Van Keuren v. Auditors, 74 N. Y., 311; Laws 1880, chap. 554; 2 R. S., m. p. 474, § 102, etc.)

The judgment is to be collected from the commissioners (2 R. S., m. p. 476, § 108, as modified by section 1931, Code of Civil Procedure). When they shall have paid it, it may be allowed in their accounts. We cannbt determine whether or not these commissioners will have any claim against the town upon their accounting. There is nothing in the remark to which we are referred, made in Van Alstyne v. Freday (41 N. Y., 177), which should change the principle above stated. At present there is no judgment against the town and no allowance of the claim by the town auditors.

For these reasons, without passing on the other questions, the order should be reversed, with costs of appeal, and motion for mandamus denied, with fifty dollars costs, under section 2086 of the Code.

Present — Learned, P. J., Boardman and Bocees, «TJ.

Order reversed, with costs of appeal, and motion for mandamus denied, with fifty dollars costs, under section 2086 of the Code of Civil Procedure.


author: Learned, P. J.:

text:
    OLIVE L. BABCOCK, Administratrix, etc., of HIRAM BABCOCK, Deceased, Respondent, v. HORACE C. GIFFORD, Appellant.

      Commissioners of highways — individually Haile for a failure to repair the highway.

    An action to recover damages occasioned by a failure to keep in proper repair the highways and bridges of a town will lie against one of the commissioners of highways individually, even though all the commissioners were guilty of negligence in failing to make the requisite repairs.-
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover the damages occasioned to the plaintiff, from a horse belonging to her as administratrix having stepped through a' hole in a bridge or culvert in a highway.

      Samuel Foster, for the appellant.

      Edgar L. Fursman, for the respondent.
   Learned, P. J.:

It cannot be necessary to discuss at this day the subject of the liability of commissioners of highways for neglecting to repair highways and bridges. They are liable after sufficient notice, if they have sufficient funds or are able .to procure funds. (Hoover v. Barkhoof, 44 N. Y., 113 ; Warren v. Clement, 31 S. C. [24 Hun], 472; Laws of 1858, chap. 103.) This statute imposes an affirmative duty to make repairs, and to present vouchers for the expense'at the next town meeting. The appellant insists that the place where the injury occurred is not a bridge created over a stream intersecting a highway. Some of the witnesses speak of the'place as being where flat stones were laid across a hole; others as a culvert. It is not very material what name is given to it. It was in the highway, and whether a stream ran under the stones or whether the stones lay over a hole, through which no stream ran, the defendant was equally bound to keep the place iü repair. (1 R. S., m. p. 502, § 1., sub. 4.)

The appellant further insists that the action was not maintained against the defendant individually; that if there be any negligence it is that of the board of highway commissioners.

In Bassett v. Fish (75 N. Y., 303) it was held that an action for negligence could not be maintained against the trustees of a Union free school district individually ; because the statute made them not a quasi corporation, but a body corporate. On the contrary the commissioners of highways are, at the most, but a quasi corporation. They may then be sued individually for liabilities; as they have been sued in cases above cited.

Then it is insisted that the action will not lie against one of them alone, for a negligence imputable to all. Certainly the general rule is where there are several wrong-doers any one may be sued. (Creed v. Hartmann, 29 N. Y., 591.) We do not see why a liability of several officers is not within this rule, even though they are, in some respects, a quasi corporation. They are liable personally to pay from their own individual property for their wrongful acts. Because the action is based on a personal wrong-doing. And if this be so, it seems to follow that one may be sued. The difficulty in the case of Bassett v. Fish was that the alleged wrongful act was the act of a coi’poration. Therefore it was necessary that the corporation should be sued. Here it is the act either of the defendant alone, or,, as defendant claims, of the three commissioners. We may notice in passing that in the case last cited it is suggested on page 313 that even in the case of a corporate body, if one of that body were duly charged by them with a special duty, the neglect therefor would make him personally liable to an injured person. But it is not necessary in this case to apply that rule.

We see no error in the case. The judgment is affirmed with costs.

Present — Learned, P. J\, Boardman and Bocees, JJ. :

So ordered.


text:
    THE MOHAWK NATIONAL BANK OF SCHENECTADY, Respondent, v. CHRISTOPHER VAN SLYCK and Others, Appellants.

      Partners — when the parties to an agreement are liable as — adopting the name of one partner as the firm name — liability of the pcurtners for notes indorsed in such name — a purchaser of the note is not affected by the misapplication of the pi'oceeds.

    On April 24,1878, the defendant Toll and the other four defendants entered into a written agreement under seal by which Toll was to make and the others were to indorse his note for $4,000. Toll was to have the note discounted and with the avails thereof purchase brooms, which he was to have insured in his own name, it being understood that the agreement was to be kept secret. The brooms were to be held by Toll, not exceeding three months, until a majority of the others should direct a sale. After deducting from the proceeds of such sale the said note, and any others given in the like manner and for the like purpose, together with his actual disbursements, the residue was to be divided equally between the said five parties, and the losses, if any, were to be equally borne by them. Thereafter four notes were made and indorsed in pursuance of the agreement. All of these were discounted for and placed to the credit of Toll by the plaintiff’s bank, and the proceeds thereof were drawn out by Toll by his checks and used to purchase brooms. Pursuant to the directions of the other defendants he commenced to sell the brooms in September, and continued to do so until he failed in December. Toll was also during all this time engaged in selling brooms on his own account. His individual business and the business conducted under the agreement were kept in separate books, but he kept but one bank account.
    In October, Toll sold some of the brooms purchased under the agreement and received in payment therefor two notes, payable to his own order, which were indorsed by him with his own name, and were discounted by the plaintiff and the proceeds thereof placed to his credit. In this action, brought by the plaintiff against the defendants to recover the amount due upon the said two notes:

      Held, that the agreement and the acts of the parties under it made them copartners That the capital of the firm was the avails of the discounted notes and Toll’s-name was the firm name.
    That the notes, having been received upon the sale of brooms belonging to the film, were firm property; and that as they were indorsed with the firm name, and the proceeds thereof were placed to the credit of the account in which the firm moneys were deposited, the defendants were liable as indorsers.
    That if Toll afterwards used money from the mixed account for his own purposes which should have been used for the firm business, that was an act to which the plaintiff was in no way a party and for which it was not responsible.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon tbe minutes of the justice before wbom the action was tried.
    The action was brought to recover the amount due upon two-promissory notes, the plaintiff claiming that the defendants were-liable ¿ás indorsers thereof.
    On the 24th of April, 1878, the defendants made a written and sealed agreement; the defendant Toll being the party of the second part, and the other defendants parties of the first part; The defendants Bronson and Stratton composed the firm of E. O. Bronson & Co. The defendants Van Slyck and De Forest composed the firm of Van Slyck & JDe Forest. Each firm was to be considered as one-person ; and therefore, in this respect, there were three persons parties to the agreement. By this agreement Toll was to make his-note for $4,000 which was to be indorsed by the others. He was to have this note discounted and with the avails he was to purchase-brooms. He was to insure them in his own name; was to retain them until a majority of the other persons should direct a sale, or until three months from the date of the agreement. He was then to sell them, and with the avails pay the note and any other notes-made in like manner and for like purpose, after deducting his actual expenses and disbursements. The residue he was to distribute to-the five persons equally, he being one. In case of loss on the whole-transaction, each person, Toll being one, was to lose one-fifth. It was understood and agreed by the parties at the time that the agreement should be kept secret, and it was kept secret until after the discounting of the notes in question in this action.
    Under this agreement and under directions of defendants, given from time to time, Toll made and they indorsed four notes, whicli were discounted for him and the proceeds placed to his credit in his bank account, and the avails expended by him from time to time by his checks drawn against his bank account for brooms bought in New Yoi’k. All of these brooms were bought in his own name and were shipped to Schenectady. Such purchases continued to about ■September 1,1878. Meetings of the defendants were held about every two weeks, and they ordered the making of the additional notes. No directions were given him to sell until September first, when they ordered him to sell. He did so,-and continued to sell from time to time till his failure in December, 1878.
    While he was selling such brooms he was also engaged in' selling brooms on his own account. His individual business and the business carried on under the agreement were kept separate, and separate books were kept. The banking business was all done by Toll in his individual name. All payments on account of the contract were made by drawing on his individual account.
    In October, 1878, he sold some of the brooms purchased under the agreement and took two notes therefor, one dated September 15, 1878, at four months, for $418; the other dated October 11, 1878, at three months, for $299.40. These notes were payable to his order and were indorsed by him'; they were discounted by the plaintiff, and the amount was put to his credit in his bank account. The plaintiff had not then any knowledge of the agreement, and •discounted the notes on the credit of the makers and of Toll. -The first note was discounted the twelfth, the second the fifteenth of October. These notes were not paid at maturity and were dulj protested, etc. On the eleventh of October his account was over drawn $126.54. Hpon obtaining the discount, October twelfth', he drew against it-for $200, and the account was overdrawn four do! lars and twenty-six cents. On the fifteenth of October, after crediting the avails of the other note, there stood to his credit $1,044.80. He made no payment on account of any liability under the agreement between October eleventh and October thirtieth. On the last mentioned day he drew' $550, with which he paid one of the notes made by him and indorsed by the other defendants as aforesaid, which had been discounted to raise money to buy broorrs as aforesaid.

      S. W. .Jackson, for the appellants.

      Alonzo JP. Strong, for the respondent.
   Learned, P. J.:

The agreement and the acts of the parties under it made them copartners. This is not such a case as that of Burckle v. Eckhart (1 Denio, 337), cited by defendant, where there was no community of interest in the capital stock; where Eckert acted only as agent or servant; subject to orders of his employers; having nothing to do with losses; but taking his share of profits in lieu of wages. On the contrary, in this agreement, each person was to share equally in losses as well as profits. It is expressly said that, in case of loss, Toll was to contribute ratably. The capital was the avails of the discounted notes. And Toll had a community of interest therein. Toll was not only interested in the profits, as such, but he was the active partner in the business. And between all the persons interested there was a community of interest as to profits and losses. (Leggett v. Hyde, 58 N. Y., 272.) Nor did the defendants offer to give evidence that their motive in what they did was to aid Toll by way of friendship or the like. (Tracy v. McManus, 58 N. Y., 257).

The agreement shows that the business was to be done in the name of Toll. He was to purchase and to sell — in whose name, if not in his own \ He was to insure expressly in his own name. Therefore his name was the partnership name. (Bank of Rochester v. Monteath, 1 Denio, 402 ; Nat. Bank of Watertown v. Landon, 45 N. Y., 410; Ontario Bank v. Hennesy, 48 id., 545.)

Again, the notes in question were given by the makers in payment of brooms belonging to the defendants, which brooms were sold to the makers by that one of the defendants who had charge of the business, and were sold by their directions. The notes therefore were the property of the defendants, payable to them, under the name by which they were conducting the business. Hntil the rights of Iona fide holders should intervene, the defendants might claim that these notes were their property and were not the property of Toll individually.

When therefore Toll indorsed the notes, the indorsement was that of the partnership. Because the notes were payable to the partnership and belonged to the partnership. The liability, then, of the defendants to the plaintiff does not rest upon the plaintiff’s knowledge, but upon the fact that by the indorsement the defendants’ property was transferred to the plaintiff. If Toll had sold brooms belonging to the defendants, they would have been bound by the terms of the sale; for instance, to guaranty the title or the quality. He sold to plaintiffs two notes which belonged to the defendants, and they are bound by the terms of that sale, one of which was the guaranty of indorsement. (Winship v. Bank of U. S., 5 Peters, 529.)

This is not a case where a partner, whose name is assumed by the firm, borrows money only on that name, and where extraneous proof may be needed to show whether the transaction was that of the individual or of the firm. The difference is that there is no doubt that, in this case, Toll was dealing with partnership property. Whatever he received on the sale or discount belonged necessarily to the firm, because it was the avails of the firm property.

But it is insisted by the defendants that Toll misappropriated the avails of the notes and applied them to his individual account. That does not appear. There was no application made of the discount to the overdraft; and even if the account of Toll was overdrawn before the discount, we must .remember that such account was the firm account as well as Toll’s individual account. The overdraft may have been caused by payments for the firm as well as.for him as an individual. And again, deducting the second discount, October fifteenth, Toll’s account was, on that day, good for over $600, so that the temporary overdraft of October eleven had been more than made up. Further, on the thirtieth of October Toll drew from his account $550 and paid therewith a note of the defendants. So that they actually had the benefit of the greater part of these discounts.

Nor can it be said that Toll, by the discounting, misappropriated the notes or the avails, since, according to the agreement of the parties, he was to keep the account and do the business in his own name. He deposited the avails, therefore, to the credit of the account where the firm money was kept. Had he deposited the avails in the name of all the defendants, he would have violated the arrangement between them, which imposed secresy. And indeed the alleged misappropriation could only be made by indorsing the firm name, since, as we have seen, the notes were payable to the firm. Hence, when the notes were discounted, they had the firm name indorsed thereon, and the avails were deposited to an account, in which, according to the arrangement, the money of the defendants had been kept. If Toll afterwards, from the mixed account, used money for his own purposes, which should have been used for the partnership business, that was an act to which the plaintiffs were in no way a party, and for which the plaintiff is not responsible.

We see no error in the refusals of the court, and think that the case was properly decided.

Judgment and order affirmed, with costs.

Present — Learned, P. J., Boardman and Bocees, JJ.

Judgment and order affirmed, with costs.


text:
    JOHN F. SHARP and JOHN WHITMORE, as Overseers of the Poor, etc., Respondents, v. ELIAS D. FANCHER, Appellant, and Six Other Similar Cases.

      Security for costs — a person suing for a violation of the excise law may be required to fie it— Code of Civil Procedare, sec. 3271.
    A person who brings an action in the name of the overseers of the poor under section 30 of chapter 628 of 1857, as amended by chapter 820 of 1873, to recover penalties for a violation of the excise law, may be required to file security for costs under section 3271 of the Code of Civil Procedure.

      Board of Commissioners of Excise v. McGrath (27 Hun, 425) distinguished and not followed; Board of Commissioners v. Casiatir (62 How.,113) followed.
    Appeal from an order made at a Special Term denying a mqtion to require the relator, Robert Boocock, who brought these suits in the names of the overseers of the poor to recover penalties for a violation of the excise law, to file security for costs.

      Griswold <& Crowell, for the appellant.

      G. B. Adams, for the respondents.
   Learned, P. J.:

These actions are brought by Robert Boocock in the name of the plaintiffs, overseers of the poor, by -authority oí chapter 628, Laws 1857, section 30, as amended by chapter 820, Laws of 1873. The defendants moved that the plaintiff be required to file security for costs under section 3271, Code Civil Procedure. The Special Term denied the motion, placing the denial solely on the want of power. The appeal therefore brings up simply the question whether the court had power to require security for costs.

The defendants claim that the court had such power, because the plaintiff is a person expressly authorized by statute to sue.”

It is urged by the plaintiff that this question has been decided in their favor in Board of Commissioners of Excise v. McGrath (34 Sup. Ct. N. Y. [27 Hun], 425). But we think the question of power was not passed upon. It does not appear that the order was denied by the Special Term for want of power. And the order was affirmed as a judicious exercise of discretion. The opinion, it is true, indicates that section 3271, Code Civil Procedure, does not apply; But that was not necessary to the decision, and therefore could not be decided. A decision is only binding for such law as is necessarily decided therein.

The phrase “ a person expressly authorized by statute to sue ” appears first in this connection in the Code of 1851 (§ 317). By the amendment of that section in 1852 the right in the discretion of the court to require security is given. And that has so continued-until’ adopted into the Code Civil Procedure (§ 3271). It has been therefore the general law since 1851; applying generally to all statutes, before and since the enactment of the excise law of 1857. There is no reason to suppose that the excise law was intended to be any exception to this general law, if the language of the general law applies to cases of the kind in question. The only question then is whether this is an action brought' by a person expressly authorized by statute to sue. Certainly the action could not be brought except by the express authority of the statute. There is no-common law liability. And unless the section .of the Code applies to such cases as the present, it is difficult to understand to what cases it does apply. This view is taken in Board of Commissioners v. Casiatir (62 How., 113) and seems to us correct.

The order should be reversed, with ten dollars costs and printing disbursements in each case and the matter sent back to the Special Term that it may exercise its discretion thereon.

Present — Learned, P. J.; Boardman and Bockes, JJ.

So ordered.


text:
    ELIZA S. WILTSIE, Appellant, v. WILLIAM SHAW, Respondent.

      Legacy — when not a legal charge upon land devised — right of a devisee to convey land upon which a legacy is equitably charged.

    The plaintiff’s father died leaving two children, the plaintiff and a son George. He owned at the time of his death certain real estate and personal property amounting to over $50,000. By his will he gave two legacies, amounting to $1,100, to persons named, appointed the plaintiff and another person executors of his will, and gave to them the sum of $20,000 in trust, to invest the said sum in the best securities they could obtain, and to use the clear income thereof, in their discretion, for the benefit and maintenance of his son George during his natural life, and at his decease to pay the principal thereof to his daughter (the plaintiff) or the heirs of her body. He then gave the residue of his estate, both real and personal, to his daughter. The person named as the executor declined to qualify Ho money or property was set apart to provide •for the $20,000 legacy.

      Held, that one who had agreed to purchase a portion of the real estate from the daughter could not refuse to complete his purchase on the ground that the real estate was subject to the lien of the legacy given by the will and that the daughter could not give a good title thereto. (Bocees, J., dissenting.)

      It seems, that a devisee may sell and give a good title to land devised to him, even though it be subject to an equitable charge in favor of a legatee. (Per Learned, P. J.)

      Hmris v. Ply (7 Paige, 421) explained.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action at the circuit.

      Henry A. Merritt, for the appellant.

      JEseTc Gowen, for the respondent.
   Learned, P. J.:

On the 15th of March, 1881, the plaintiff contracted in writing with the defendant to sell him a lot of land. The sum of $1,000 is named as liquidated damages in tlie contract. The plaintiff at the proper time tendered a deed, and the defendant refused to perform. His sole defense is that, at that time, the property was subject to the lien of certain legacies.

The land belonged to Hiram Smith at his death, March 3, 1881. He left no debts; and’ was tbe owner, at his decease, of personal property, amounting to over $50,000. He left two children, the plaintiff and one George G. Smith. He left a will, duly executed, which had been duly proved. By this he gave two legacies, amounting to $1,100. Then he made the plaintiff and another executor and executrix of his will, and in the same clause gave to them the sum of $20,000 in trust “ to invest said sum in the best securities they can obtain and to use the clear i/ncome thereof , in their discretion, for the benefit and maintenance of my son, George G. Smith, during his natural life, and at his decease to pay the principal thereof to my daughter Eliza Wiltsie or the heirs of her body.” He then gave to his daughter, the plaintiff, the residue of’ his estate, real and personal. No money or property has been set apart to provide for the legacy of George G. Smith. The executor refused to qualify as executor.

The learned justice held that the legacy to Smith was a lien on the real estate; that therefore it was not free from incumbrance, and that the defendant should have judgment for costs.

Now it is first to be noticed that the will did not impose on the residuary legatee and devisee the duty of paying a certain income. But it established a trust, in two persons, of a certain definite sum. That money they were to hold as trustees. The principal thereof was not to go to the residuary legatee, as such. At the end of the trust it was to go to Eliza Wiltsie, if she were living; to her children if she were dead. The duty of the executrix and executor then was to set apart $20,000 for this trust. And, clearly, when that should have been done, that legacy would have been paid. The argument of the defendant is that, because that sum has not been actually set apart, there is a lien on the real estate which prevents the devisee from giving a good title.

Legacies are payable from the personal estate. If the personal estate is insufficient, they abate, unless the real estate is charged with them. There is here no express charge on the real estate. The intention (which may be assumed to have existed in the testator’s mind) that this legacy should be paid forms no argument for its being a charge. Because the personal estate is amply sufficient. (Bevan v. Cooper, 72 N. Y., 317.) This is not a case, like Goddard v. Pomeroy (36 Barb., 546), where there was such a complete disposition of the personal estate that there was not enough from which to pay an after given legacy.

The present case is nearly identical with those of Reynolds v. Reynolds (16 N. Y., 256); of Lupton v. Lupton (2 Johns. Ch., 623); of Myers v. Eddy (47 Barb., 263); of Babcock v. Stoddard (3 Thomp. & Cook, 207); of Kinnier v. Rogers (42 N. Y., 531); and of Spillane v. Duryea (51 How., 260). In all these cases a bequest and devise of the residue of the testator’s estate is held not enough to charge the real estate with legacies.

In Harris v. Fly (7 Paige, 421), there was a devise of a farm to the son; a devise of $1,000 to each of two daughters, to bepaid by the son. Then there was a gift over to the son, “ after payment of all my debts, legacies,” etc. It was held in that case that the devise, with direction to the devisee to pay the legacy in respect to the estate so devised to him, made the real estate chargeable in equity. There is no similarity between that case and this. There the devisee was directed to pay the legacy; and the direction was such that it was held that he was to pay it in respeet to the estate devised. In this case, rhe devisee is not directed to pay the legacy. The legacy is to be paid by the executrix and executor, while the land is devised to the daughter only. Nor does it alter the effect of the will that the executor renounced. Because the defendant’s argument is based on the intent of the testator. And that intent is not altered by the renunciation of the executor.

But there is another point which should be observed. The case of Harris v. Fly, on which the defendant’s counsel relies, does not hold that even in that will, the legacy was a legal charge; only it was an equitable charge. And an examination of the opinion, especially at page 427, will show that the chancellor does not intimate that /the devisee could not sell the premises and give a good title. For he says: If the devisee in this case had sold the premises for cash and had received the purchase-money, a question might have arisen whether the vendee was bound to see that the purchase-money was applied to pay off the legacies.” Thus the chancellor intimates, as will appear by his following sentence, that, even if the legacy were an equitable charge on the land, yet a devisee might sell the land. If he could not, then how could he pay the legacy ? To illustrate; it is the ordinary duty of an executor to pay debts and legacies out of the personal estate. Was it ever supposed that this duty prevented the executor from selling the personal estate ; although it was the primary fund from which to pay debts, and the sole fund from which to pay legacies ? Even then if it should be admitted, in this case, that the real estate might be resorted to, in aid of the personal, for the payment of the legacies, does that prevent the devisee from selling the land, and thus raising the money out of which to pay the legacy? 'It is worth observing that, as often happens, this case of Harris v. Fly is cited to sustain a doctrine which it does not assert. The chancellor after indicating that a sale for cash- and a payment would give the purchaser a good title remarks that no such question could arise in the case of a sale under execution against the devisee. Because, from the nature of the transaction, the purchaser would know that the money was not intended to pay the legacies; and the purchaser claiming title through the will had constructme notice. This last clause is frequently quoted, without regard to the fact that it was applied, by the chancellor, to a case, not of a sale by the devisee, but of adeyy and sale under execution. That the purchaser would not be bound to see to the application of the purchase-money follows, by analogy, from 1 Revised Statutes, 730, § 66.

If the legacy is an equitable charge on the land in this case, still the personal estate is the primary fund. The charge on the real estate is established, only because the courts hold that the testator desired the legacy to be paid at all events. Now in the present case the only payment of the legacy possible is that the executrix and executor should receive this $20,000 and hold it on trust. The money was not to be paid to George S. Smith, but to his trustees. One of them has refused to accept. The other, it is admitted, has the money. What further discharge, or payment, of the legacy can be made it is difficult to see, since it is already in the hands of the person who is to hold it.

No case is cited by the defendant’s counsel in which an equitable lien of this character has been enforced, where the personal estate was sufficient to pay all the legacies claimed to be a charge. In Dodge v. Manning (11 Paige, 334), the chancellor said that, before resorting to .the real estate, the complainant must show that the personal estate was exhausted, or that those who were accountable for it were irresponsible. In the present case there are no debts ; and no evidence that the executrix is irresponsible. The legatee, if not in fact already paid, can obtain payment at once.

I thinls the judgment should be reversed.

Bocees, J., dissented.

Present — Learned, P. J.; Boardman and Bocees, JJ.

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


text:
    THOMAS P. NILES and JOHN M. NILES, Executors etc., of SMITH SHAW, Deceased, Appellants, v. ALEXANDER CHACE, Respondent.

      Apportionment of rent — right of an executor to recover a portion aicrued, but not due, at the time of the testator’» death — by and against whom the action must be brought — 1875, chap. 543.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit."
    Smith Shaw, the testator, died- November 27, 1878. The plaintiffs are his executors. They bring this action to recover for the use and occupation of a farm of the deceased, N the defendant, from April 1, 1878, to the day of the death of the testator. It was proved on the trial that the defendant had occupied the farm for a number of years prior to the death of the testator, and continued to occupy it after the death of the testato', and down to the time of trial. The value of the use from Apri’ first to November twenty-seventh was also proved. No further p»of was given, and the plaintiffs were thereupon, on defendant’s notion, nonsuited. It appeared by the complaint and answer, that th< testator devised the farm to the defendant.
    The court at General Term said: “We tlink-that the learned justice was right in holding that, if there wa/ any tenancy, it must be presumed to be a tenancy by the year, tnder the facts shown. (<Jackson ex dem. v. Bryan, 1 Johns., 322.)
    “ The right to the proportionate part, givai by chapter 542, Laws of 1875, is qualified by the second section if the act. This gives the right of action to the persons who wouldhave been entitled if the act had not been passed, and limits the renedy to a recovery from such persons. The action, therefore, of he executors, in such a case, is against the heir or devisee. In the present instance the alleged tenant is the devisee. Very possibly, in such a case, upon a complaint properly framed, an action might be maintained by the executor against the heir or devisee who had been tenant of the deceased. But such was not the complaint here; nor was there any motion to amend.”

      McClellan c& Brown, for the appellants.

      MewTcvrk <&■ Chace, for the respondent.
   Opinion by the court.

Present — Learned, P. J., Boardman and Bockes, JJ.

Judgment affirmed, with costs.


text:
    GARRET DEVOE, Respondent, v. BENJAMIN VAN VRANKEN, Appellant.

      Evidence — action to recover damages for a personal injury — when the excessive use of intoxicating liquor by the plaintiff, prior to the accident, may be shown in reduction of damages.

    Appeal from a judgment in favor of the plaintiff, 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 damages for injuries alleged to have been caused to plaintiff, by his being thrown against the dashboard of a wagon. He was in the wagon with one Deming, who was driving. It was in the night, and the night was dark. The horse ran against a barrier'which .defendant had created in the highway around an excavation
    The defendant offered to show that the plaintiff’s habits as to the use of intoxicating liquors had been bad ; that he had been unable from constitutional condition or otherwise, to do a full day’s wort; that the use of intoxicating liquor had rendered him unqualified. This was offered in mitigation of damages. It was objected to by the plaintiff and excluded.
    The plaintiff had previously testified that the effect of the accident had been that he could not do any hard work ; that he could not do a day’s work as he used to. A physician had testified as to the plaintiff’s having internal hernia (claimed to have been caused by the accident), and that such hernia probably created to a laboring man an amount of disability equal to one-half.
    The court at General Term said: “We think that in view of this proof previously given by the plaintiff, it was competent to prove that his previous habits had been such that he was unable to do a full day’s work. The excessive use of intoxicating liquor does unfit men for doing work, and the extent of the plaintiff’s pecuniary damage might have been modified in the minds of the jury by the proof excluded.

      Alexander J. Thomson, for the appellant.

      Yates & Gutter, for the respondent.
   Opinion by-the court.

Present — Learned, P. J., Boardman and Bookes, JL

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


author: Learned, P. J.

text:
    ELBRIDGE G. PHELPS, Respondent, v. HIRAM GEE, Appellant.

      Pendency of a former action for the same cause — when the object of the first action, in which the summons only has been served, cannot be proved by panol evidence.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions, and upon the ground of newly discovered evidence.
    The defendant pleaded, among other defenses, the pendency of another suit for the same cause of action. Upon the trial he offered to prove by the plaintiff that, prior to the commencement of this action, he had commenced another action against the defendant upon the same cause of action, and that such former action was still pending undetermined.
    The court at General Term said : “ The defendant, on the trial, proved that the plaintiff, about August .twelfth, commenced an action against the defendant. He offered to show that it was for the same cause with the present. It was objected that he could not prove that in this manner. It was admitted that the summons was served and a notice of retainer, biit that no complaint had ever been served. And the defendant offered to prove for what that action was brought. The court said that all which it would be possible to prove was what the action was designed for, and excluded the evidence.
    “We think the court decided correctly. It is very true that parol evidence may be given for the purpose of showing what the actual controversy was in a former action. (Doty v. Brown, é N. Y., 71.) But the difficulty here is that the subject of controversy in the former action was still uncertain. The plaintiff in that action might serve a complaint upon any cause of action consistent with the summons. Nor was this difficulty obviated by the defendant’s question, whether he had any other cause of action than that now before the court. Because the plaintiff could serve a complaint setting forth a fictitious cause of action. And it could not be averred that the former action was certainly for such a cause until the complaint had been served.”

      'Merritt King, for the appellant.

      Smith Brothers, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and Bookes, JJ.

Judgment and order affirmed, with costs.


text:
    The People of the State of New York, Respondent, v. Julius W. Burleigh, Appellant.
   Judgment and conviction affirmed. Opinion by Bookes, J.


text:
    John F. Sharp and John Whitmore, Overseers, etc., Appellants, v. Michael Prendergast, Respondent. Same v. Thomas Prendergast, Respondent. Same v. Thomas Mullen, Respondent. Same v. James M. Mackey, Respondent. Same v. John F. Sharp, Respondent.
      Same v. James Gray, Respondent.
   Order reversed, with ten dollars costs and printing disbursements in each case, and motion to dismiss action and set aside summons and complaint granted, with ten dollars costs in each case. Opinion by Learned, P. J.


text:
    Edward H. G. Clark, as Receiver, etc., Appellant, v. Franklin J. Parmenter, Respondent.
   Judgment affirmed, with costs. Opinion by Boardman, J.


text:
    Flavia M. Bristol and another, Respondents, v. Edwin Sears, Appellant.
   Judgment reversed, referee discharged, new trial granted, costs to abide event. Opinion by Learned, P. J.


text:
    Charles W. Miller, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   — Motion for new trial denied and judgment ordered for plaintiff on verdict. Opinion by Bockes, J.


text:
    John I. Shufelt and others, Appellants, v. Maria Watrous and others, Respondents.

   — Judgment reversed and new trial granted; referee discharged, costs to abide event. Opinion by Learned, P. J. Mem. by Boardman, J.


text:
    Sarah C. Chambers, Respondent, v. John S. Jones, Appellant.
   J udgment affirmed, with costs. Opinion by Bockes, J.


text:
    The People of the State of New York, Plaintiff, v. The Home Insurance Company, Defendant.
   Judgment ordered for plaintiff for $7,500, and interest from January 15, 1882, with costs. Opinion by Boardman, J.


text:
    The People of the State of New York, Plaintiff, v. The Albany Insurance Company, Defendant.
   Judgment ordered for plaintiff for $2,812.50, and interest from January 15,1882, with costs. Opinion by Boardman, J.;

Learned, P. J., not acting.


text:
    Jennie McKallor, Plaintiff, v. Cornelius A. Waldron and others, Defendants.
   Judgment affirmed, with costs. Opinion by Bockes, J.


text:
    In the Matter of Probate of Will of Eliza M. Smith, Deceased.

   — Decree affirmed, with costs against appellant. Opinion by Learned, P. J.;

Bockes, J. dissenting.


text:
    John O. Murdock, Appellant, v. William Youmans, and John J. Youmans, Respondents.

   — J udgment affirmed with costs. Opinion by Bockes, J.;

Learned, P. J., and Boardman, J., concurring.


text:
    Ralph Newell, Appellant, v. Richard Whigham and others, Respondents.

   — Judgment affirmed, with costs. Opinion by Boardman, J.


text:
    The People of the State of New York, Respondents, v. Wayland N. Trumble, Appellant.

   — Judgment of Sessions reversed, and appeal to that court from judgment of Police Justice dismissed for want of jurisdiction. Opinion by Bookes, J.


text:
    The People of the State of New York, Respondents, v. Spencer French, Appellant.

   — Same as in last case.


text:
    The People of the State of New York, Respondents, v. Mahlon J. Lord, Appellant.

   — Same as in case of Trumble.


text:
    Henry E. Fisher, Respondent, v. Enoch H. Bishop and another, Appellants.

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


text:
    Harriet Keeler, Appellant, v. Burr Keeler 2d, and others, Respondents.

   — Judgment affirmed with costs. Opinion by Boardman, J.


text:
    Benjamin A. Vredenburgh, Respondent, v. The Fireman’s Fund Insurance Company of California, Appellant.
   Judgment and order affirmed, with costs. Opinion by Boardman, J.


text:
    John H. Hintermister, Plaintiff, v. William F. Lane, Defendant.

   — Motion for leave to go to Court of Appeals denied.


text:
    In the Matter of the New York, West Shore and Buffalo Railroad Company v. The Knickerbocker Ice Company
   Three appeals. All three orders reversed, with single costs of appeal and disbursements as in reversal of judgment on appeal, and proceedings on petition and answer remitted to Special Term for further action. Opinion by Bockes, J. Order to be settled! by Bockes, J.


text:
    The Attorney General of the State of New York v. The Continental Life Insurance Company, Respondent (Claim of Benjamin N. Feltwell and others, Appellants).

   — Order affirmed, with ten dollars costs and printing disbursements against appellants. Opinion by Learned. P. J.


text:
    The People of the State of New York, Plaintiff, v. The Fire Association of Philadelphia, Defendant.

   — Judgment for defendant, with costs. Opinion by Boardman, J., and by - Learned, P. J., dissenting.


text:
    John G. Bain v. Thomas Kinch.
   Judgment reversed, new trial granted, costs to abide event. Opinion by Bockes, J. /,


text:
    Bartholomew Feiden, Appellant, v. The President, etc., of the Delaware and Hudson Canal Co., Respondent.
   Judgment affirmed, with costs. Opinion by Boardman, J.


text:
    Rutsan Hunt, Appellant, v. Aaron Becker and others, Respondents.
   Judgment of County Court reversed and that of Justice’s affirmed, with costs. Opinion by Bockes, J.


text:
    Ann Kenney, Respondent, v. The City of Cohoes, Appellant.
   Judgment and order affirmed, wifh costs. Opinion by Learned,


text:
    Jane E. Thompson, Respondent, v. Hiram Whitmarsh, Appellant.

   Judgment affirmed, with costs. Opinion by Boardman, J.


text:
    Edward A. Durant, Respondent, v. John O’Brien, Appellant.
   Judgment affirmed, with costs. Opinion by Bockes, J.


text:
    Albert Shea and another, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order reversed, new trial granted, costs to abide.event. Opinion by Boardman, J.


text:
    Mary Salow, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   — Judgment affirmed, with costs. Opinion by Bookes, J.


text:
    Esther R. Corbin, Respondent, v. The Trustees of the Village of Canajoharie, Appellants.

   — Judgment and order affirmed, with costs. Opinion by Learned, P. J.


text:
    Edward Newcomb, Receiver, etc., Plaintiff, v. Charles Almy, Defendant.

   Judgment ordered for plaintiff for $1,856.81, with interest from December 17, 1881, with costs. Opinion by Boardman J., and by Learned, P. J., dissenting.


text:
    Julian Gifford, Respondent, v. Henry Waterman, Appellant.
   Judgment and order affirmed, with costs. Opinion by Learned,


text:
    James D. White, Respondent, v. Eliakim Cheesbro, Appellant.
   Judgment affirmed, with costs. Opinion by Boardman, J.


text:
    Barnett Geelan v. Julia A. Geelan
   — Judgment reversed, new trial granted; referee discharged, costs to abide event. Opinion by Bocees, J.


text:
    John Salisbury, Respondent, v. Schuyler Steamboat Line, Appellant.

   — Judgment and order reversed, new trial granted, costs to abide event. Opinion by Learned, P. J.


text:
    Jacob F. Genther, Respondent, v. The Atlantic Mutual Insurance Company, Appellant.

   — Judgment affirmed, with costs. Opinion by Boardman, J.


text:
    James I. Murray, Respondent, v. Luther Roper, Appellant.
   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by Bockes, J.


text:
    Elias Auble, Respondent, v. Jonathan Auble, Appellant.

   — Order modified so as to include costs of motion for new trial, and, as modified, affirmed without costs of appeal. Opinion by Boardman, J.


text:
    Catherine Kane, Respondent, v. Carlos Cortesy, Appellant.

   — Judgment reversed, new trial granted referee discharged, costs tc abide event. Opinion by Bockes, J.


text:
    Jane Boyce, Respondent, v. Aaron P. Stowers, Appellant.

   Judgment affirmed, with costs. Opinion by Boardman, J. *.

Learned, P. J., not acting.


text:
    John Beardsley, Respondent, v. George S. Clark, Appellant.

   — Judgment and order affirmed, with costs. Opinion by Learned.


text:
    Water Hoos, Appellant, v. James Person and others, Respondents.

   — Judgment affirmed, with costs. Opinion by Bockes, J.


text:
    James Sutton and others, Appellants, v. William A. Wilkins, Respondent.

   — Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    Harriet M. West, Respondent, v. John H. Kiersted, Appellant.

   — ■ Motion for reargument to go to Court of Appeals denied.


text:
    In the Matter of the Petition of Stephen Carroll for the Removal of Daniel P. Wilson, Justice of the Peace.
   Motion granted and Wilson removed.


text:
    In the Matter of the Central Trust Company.
   Application denied, on the ground that the rules should be modified by the convention of justices.


text:
    In the Matter of the Attorney-General, Appellant, v. The Atlantic Mutual Life Insurance Company, Respondent.
   Motion for reargument or to file additional briefs denied, with ten dollars costs.


text:
    The Attorney-General v. The Guardian Mutual Life Insurance Company.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    John Reed Respondent, v. George McConnell, Appellant.
   Appeal sent to Second Department.

Bockes, J., not acting.


text:
    William Shutter, Appellant, v. Walter S. Ward, Respondent.
   Motion for reargument denied, with ten dollars costs.


text:
    The Attorney-General v. The North America Life Insurance Company.
   Order affirmed, with ten dollars costs and printing disbursements.

Bockes, J. taking no part.


text:
    John Pettit, Respondent, v. The City of Kingston, Appellant.
   Order reversed, without costs. Opinion by Boardman, J.


text:
    Teunis H. Haulenbeck, Appellant, v. Alfred T. Van Nostrand and others, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    William C. McHarg, Respondent, v. Elizabeth Crounse, Appellant.
   Order reversed, without costs. Opinion by Boardman, J.


text:
    Cornelia J. Davenport, Respondent, v. Lewis N. Ireland, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Paul Cushman as Trustee, etc., v. Charles E. Leland, Appellant. Charles E. Knowlton, Respondent, and others.
   Order reversed, with ten dollars costs and printing disbursements, and motion to withdraw answer and dissolve injunction denied, with ten dollars costs against defendant Knowlton. Opinion by Boardman, J.


text:
    Myron Gates, Appellant, v. Adam Fry, Respondent.

   — Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by Bockes, J.


text:
    George C. Newman, Appellant, v. Daniel Fish and Eugene Hyatt, as Administrators, Respondents.
   Judgment affirmed, with costs on opinion of referee.


text:
    Fannie B. Haight and others, Appellants, v. Giles S. Brisbin and others, Respondents.
   Judgment affirmed, with costs. Opinion by Learned, P'. J.


text:
    Mary A. Richmond, Plaintiff, v. Emeline Penoyar and others, Defendants.
   Order affirmed, with ten dollars costs and printing-disbursements. Opinion by Learned, P. J.


text:
    Clara B. Allen, Appellant, v. Walter S. Allen, Respondent.

   Order affirmed, without costs. Opinion by Boardman, J.

Learned, P. J., taking no part.


text:
    William H. Hale, Appellant, v. James H. Crutchley, Respondent.

   — Appeal dismissed, with ten dollars costs and printing disbursements.


text:
    Herbert L. Abbott, Appellant, v. Monroe D. Costlow, Respondent.
   Judgment of County Court reversed, and that of Justice affirmed, with costs.


text:
    John Trainor, Respondent, v. Alexander Pidgeon, Appellant.
   Judgment reversed, new trial granted, referee discharged, costs' to abide event.


text:
    George T. Hall, Respondent, v. The Ogdensburgh and Lake Champlain Railroad Company, Appellant.

   — Judgment reversed, new trial granted, costs to abide event. Opinion by Board-man, J.


text:
    Cornelius Rhoades, Respondent, v. John Cameron, Appellant.
   —Judgment affirmed, with costs. Opinion by Bookes, J.


text:
    John Ferguson, Supervisor, etc., Appellant, v. Antonia Scrivani, Respondent.
   Judgment affirmed, with costs.


text:
    Edward S. Sauter, Respondent, v. Josiah C. Hunt and another, Appellants.
   Judgment affirmed, with costs.


text:
    Annis W. Hogeboom, Appellant, v. Nathan C. Hogeboom, Respondent.
   Judgment affirmed, with costs.


text:
    Amanda Lewis and others, Respondents, v. Person D. Ogden and others, Appellants.

   — Judgment affirmed, with costs.


text:
    Esther M. Van Hoevenberg, Respondent, v. The City of Kingston, Appellant.
   Judgment affirmed, with costs.


text:
    Peter L. Osterhout, Appellant, v. The Town of Shawangunk, Respondent.

   — Motion to go to Court of Appeals denied, with ten dollars costs.


text:
    William N. Brockway, Respondent, v. Jefferson Goodell, Appellant.

   Orders as entered amended so as to conform to decision.


text:
    In the Matter of Toomey to Review, etc., and Twelve Other Cases.
   — Order making contractor a party granted.


text:
    Archibald D. O’Neill, Respondent, v. John Waller, Appellant.

   — Motion for leave to go to Court of Appeals denied, without costs.


text:
    Henry Crandall, Respondent, v. Andrew Gourley and another, Appellants.

   — Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York ex rel. John Sanderson, Respondent, v. The Board of Canvassers of Greene County, Appellants.

   — Motion to dismiss appeal granted.


text:
    The People of the State of New York ex rel. John Sanderson, Respondent, v. Homer N. Payne and others, Appellants.

   — Motion to dismiss appeal granted.


text:
    Kittie V. Merchant, Respondent, v. Charles T. Newton, Appellant.

   — Order affirmed, with ten dollars costs.


text:
    Patrick Ronan, Respondent v. The Hudson River Bridge Company at Albany, Appellant.

   — Judgment and order affirmed, with costs.


author: Barnard, P. J.:

text:
    HENRY A. DINGEE, Respondent, v. NORMAN K. SHEARS, Appellant.

      Set-off — right to set off a judgment for costs — when it may he done after the judgment for costs has been assigned to the attorney — entry of a judgment recovered, after the refusal to accept an offer — when the defendant is entitled to costs.

    The plaintiff, after having refused an offer made by the defendant to allow judgment to be taken against him for $108, recovered a verdict for just that amount. The plaintiff entered a judgment for $136.02 on December 14, 1878.
    On January 25,1878, the defendant, who was insolvent, had assigned all his right, title and interest in any sum that might be allowed to him for costs to his attorney. On March 24, 1882, the defendant entered a judgment for his costs of thirty-eight dollars and sixteen cents.

      Held, that it was proper to allow the judgment recovered by the defendant to be set off against the one recovered by the plaintiff upon the latter’s application.
    The proper way to enter judgment in such a case is, to suggest the right of the defendant to costs after offer, as taxed; and when the plaintiff’s claim and costs are greater than the defendant’s bill of costs, as taxed, to deduct the same from the plaintiff’s claim and enter a judgment for the balance.
    Appeal from an order of tbe City Court of Yonkers by which a judgment for thirty-eight dollars and sixteen cents, rendered in this action in favor of the defendant and against the plaintiff, was set off against so much of the judgment in the same action for $132.06 in favor of plaintiff and against the defendant.

      The plaintiff sued the defendant to recover $600. The defendant made an offer to allow judgment for $108, which was not accepted. The action was tried January 2, 1878, and the plaintiff obtained a verdict for $108, thus giving costs to the defendant. On January 25, 1878, the defendant in writing assigned his recovery, if, any, to one William Eomer, his attorney. The defendant then was and now is insolvent. . The judgment for costs was not entered until March 21,1882. The plaintiff moved and obtained an order setting off the defendant’s judgment against an equal amount of the plaintiff’s judgment.

      William Eomer, for the appellant.

      Ralph E. Prime, for the respondent.
   Barnard, P. J.:

The right to set off interlocutory costs has been established. (Doe v. Allsop, 9 B. & C., 760 ; Doe v. Carter, 8 Bing., 330.)

In cases where the plaintiff was entitled to judgment and the defendant to costs there could be but one record. (3 Wend., 308.) The plaintiff made a suggestion upon the record of the defendant’s right to costs, and if he refused to do so the court would compel it. This was done to avoid circuity. The present case arises under the Code and is new to the old practice.

By reason of a failure upon the part of the plaintiff to recover a verdict in excess of an offer made, he was entitled to recover the verdict and the costs up to the date of the offer and must pay costs of the action after the offer. The verdict determined the rights of the parties.

The proper way to enter a judgment in such a case is, to suggest the right of the defendant to the costs after offer, as taxed; and when the plaintiff’s claim and costs is greater than the defendant’s taxed bill to deduct the same from the plaintiff’s claim and exter judgment for the balance. This is the rule when a counter-claim less than the plaintiff’s claim is set up. (Code C. P., § 512.) No other rule would work justice. The same vej'dict settles all the rights of the parties, and the judgment should only be for the portion due after set-off of the respective claims. Set-off has always been favored to avoid circuity of action or redress.

At the time of the assignment to the attorney by the defendant there was a legal set-off existing and nothing passed by it.

The order should therefore be affirmed, with- costs.

Dtkman and Cullen, JJ., concurred.

Order setting off costs against judgment affirmed, with costs and ■ disbursements.


text:
    WILLIAM E. KENYON, Appellant, v. JAMES S. SEE and Others, Executors, etc., of JOHN MILDERBERGER, Deceased, and others, Respondents.

      Will — legacy upon a condition precedent— renunciation of, by the legatee — vesting of.

    The defendants’ testator gave one-third of his estate, real and personal, to a grandchild, Selden M. Spencer, “ to he paid to him at the time of his marriage; ” and one-third to another grandchild, W. B. Kenyon, “at the time of his marriage.” He then gave to his grandson, Selden M. Spencer, at the time of his marriage, the remaining third, in trust, to pay the interest thereon semi-annually to his grandson, Seymour H. Spencer, upon the express condition that the said Seymour H. Spencer should renounce the Etonian Catholic priesthood, the payment to'commence at the time of such renunciation; and upon the further condition that if he should marry, then he should have, and the testator gave to him, the said trust fund, with the accumulated interest. In case of the death of the said Seymour before marriage, he gave the said share to Selden “ at the time of his marriage.”
    Selden married September 2,1881. On September 15, 1881, Seymour, by a sealed instrument reciting that he never intended to renounce the priesthood or to marry, conveyed all his interest under the will to his brother Selden. Selden died September 26, 1881.

      Held, that by the release and conveyance Selden acquired an absolute title to the trust estate, and an immediate right to the possession thereof, and that the same passed to his executors upon his death.
    Appeal from a decree of tbe surrogate of Westchester county, entered upon the accounting of the defendants, as executors of John Milderberger, deceased.

      John A. Rusted, for the appellant.

      Alexander <& Green, for executors of SeldenM. Spencer, deceased, a legatee.
   Barnard, P. J.:

John Milderberger, a resident of "Westchester county, died on the 27th of November, 1871, leaving a last will. By this will he gave one-third of his estate, real and personal, to a grandchild, Selden M. Spencer, “ to be paid to him at the time of his marriage.” He gave one other third to another grandchild, William E. Kenyon, at the time of his marriage.” Both of these grandchildren married and no question is made as to ■ the several thirds so given to each of them. The testator had another grandchild, Seymour M. Spencer, who was a priest in the Eoman Qatholie Church. By the eighth clause of the will it was directed as follows:

“Eighth. I give, devise and bequeath to my said grandson, Selden Milderberger Spencer, at the time of his marriage, one other third of my real and personal estate not hereinbefore disposed of in trust to pay the interest thereon semi-annually to my grandson, Seymour Herbert Spencer, upon the express condition that the said Seymour Herbert Spencer shall renounce the Eoman Catholic priesthood, said payment of interest to commence at the time of such renunciation; and upon the further condition that the said Seymour Herbert Spencer shall marry, I give devise and bequeath the said money held in trust together with the accumulated interest thereon to my said grandson, Seymour Herbert Spencer.”

By the tenth clause the will provides as follows:

“ Tenth. In case of the death of the said Seymour Herbert Spencer before martiage, I give, devise and bequeath his said share to my grandson, Selden Milderberger Spencer at the time of his marriage.” ,'

Selden M. Spencer married on the 2d of September, 1881. On the 15th of September, 1881, Seymour Herbert Spencer, by a sealed instrument reciting that he never intended to renounce the priesthood or to marry, conveyed all his interest under the will of John Milderberger, deceased, to his brother Selden M. Spencer. Selden M. Spencer died on the‘26th of September, 1881.-

Under these facts Kenyon claims the third given to Selden M. Spencer in trust and upon the condition named, because by. the death of Selden before his brother, Kenyon is entitled as heir in reversion, and by the renunciation he is entitled to the possession now in absolute ownership.

The executors of Selden claim it as owner of the reversion under the tenth clause of the will, and by the renunciation they are entitled now to the absolute possession.

I think it was not the intention of the testator by the tenth clause of the will to require Selden to survive his brother to be entitled to the reversion of his brother’s third, if the conditions were not fulfilled by Seymour. The testator’s language seems to be plain. There is no condition to the gift of the reversion, except that Seymour should die before marriage — before Seymour’s marriage.

The words “ at the time of his (Selden’s) marriage,” is in harmony with the entire will, which is so drawn that neither grandchild could take unless married. Selden could not be trustee for his brother until at the time of his marriage.”

The use of these words in the tenth clause only required that Selden should marry before he could take either his' third or his brother’s in trust, or the reversion of his brother’s.

When he married he was competent to take and then did take this reversion of his brother’s share. His subsequent death did not divest the bequest. If we are right in this conclusion, the appellant has no interest in the tenth clause or in the estate created thereby. If Selden took the reversion he held the third in trust: 1st. To pay the interest to his brother during his entire life if he would renounce the priesthood; and, 2d. In trust to pay the same to his brother upon his marriage. Seymour had his whole life to accept and perform these conditions. He has, as yet, done neither, but if he fails to do so, Selden takes the share under the tenth clause. I think by the release Selden got an absolute title. Seymour was competent to contract. He could convey nothing becausé he had nothing to convey. The conditions were conditions precedent, and no estate vested until performance. But he could waive a condition made in his favor. He has done so by deed. If we wait until the expiration of his life, he can then, only by refusal to renounce or marry, express the same thing which he has expressed by this deed. If Seymour had an estate in expectancy, the authorities would warrant his conveyance. (Miller v. Emans, 19 N. Y., 385 ; Ham v. Van Orden, 84 id., 257.) If Selden held an estate in trust for his brother upon his performing certain conditions, it was competent for this brother to renounce the condition and release his claim and let the estate pass at once. The surrogate’s decree should be affirmed, with costs against the appellant.

Dykman and Cullen, JJ., concurred.

Decree of surrogate affirmed, with costs.


text:
    GEORGE W. KIDD, Respondent, v. WILLIAM CURRY, Appellant.

      Vacation of a judgment after it has been paid — remedies of the judgment debtor.

    Where, after the amount due upon a judgment has been collected under an execution issued thereon, the judgment is vacated and set aside, the judgment-debtor may either apply for an order for the return of the money so paid, under section 1323 of the Code of Civil Procedure, or may bring an action to recover it.
    Appeal from a judgment of the County Court of Kings county in favor of the plaintiff.
    The defendant recovered a judgment on August 29,1878, against the plaintiff for $122.88, upon which he issued an fexecution and collected the sum of $182, being the whole amount due thereon, with poundage, etc. On June 20, 1879, this judgment was vacated and set aside. The plaintiff then, after demand, brought this action against the defendant and obtained a judgment for the amount so paid under the execution, with costs. From this last-named judgment the defendant appealed to the General Term.

      E.* J. Morris, for the appellant.

      T. J. & B. F. Tilney, for the respondent.
   Barnard, P. J.:

There is no basis for this appeal. The defendant obtained a judgment against the plaintiff and collected it by execution. The judgment was subsequently vacated and set aside.” The defendant therefore holds the plaintiff’s money without any right to retain the same. An action lies to enforce its repayment. (Clark v. Pinney, 6 Cow., 299; Sturges v. Allis, 10 Wend., 354.) It does not even appear that a new trial was ordered. Upon an application for restitution by order, made to the court, equitable considerations may arise and conditions be put upon the restitution in reference to the safe keeping of money collected.

The money, upon a new trial, may .still belong to the creditor, but as against an action there is no legal defense.

The remedy is either by motion (Code C. P., § 1823) or by action. (Lott v. Swezey, 29 Barb., 88.)

The judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ABRAHAM D. STEPHENS and Others, Highway Commissioners, etc., v. J. BENEDICT SEE, Town Clerk, etc., and Others.

      Laying out of highways — reassessment of the damages awarded hy the commissioners— notice of — mthinwhat túrne it must he served — its service is necessa/ry to confer jv/risdiction— 1847, chwp. 455 sec. 5.
    Where a person is dissatisfied with the award made by commissioners appointed to appraise the damages occasioned by the laying out of a highway, and desires to have them reassessed by a jury, as provided by chapter 455 of 1847, the notice of his dissatisfaction and his demand for a jury must, under section 5 of the said act, be made returnable upon a day not less than ten days from the day of its service upon the town clerk, and not more than twenty days from the day of the filing of the award of the commissioners.' (Cullen, J., dissenting.)
    The notice is a prerequisite to the acquisition of jurisdiction over the subjectmatt'er. Jurisdiction cannot be conferred by the voluntary appearance of the commissioners of highways upon the reassessment, when no proper notice has been served upon them. (Cullen, J., dissenting.)
    Certiorari to review the action of the respondents in reassessing damages awarded by commissioners upon the laying out of a highway;

      Upon the hearing before the jury the commissioners of highways and the land owners appeared with their counsel and were heard.

      Edward Wells and Henry G. Griffin, for the relators.

      W. J. Townsend, for See and others.
   Barnard, P. J.:

The commissioners of highways of the town of Mt. Pleasant, in the county of Westchester, laid out a highway in that town on the 10th of September, 1880. The damages sustained by the land owners by reason of the laying out such'highway were assessed by commissioners appointed by the county judge of Westchester county on the 28th of October, 1881. Their award was filed in the office of the town clerk of Mt. Pleasant on the 3d of November, 1881. Helen M. Diggle and George Bockwell, two of the land holders, were dissatisfied, and on the 19th of November, 1881, served on the town clerk of Mt. Pleasant a notice demanding that a jury be drawn in the town of Greenburgh, an adjoining town, on the 22d of November, 1881, at ten a. m., at the town clej’k’s office of the town of Greenburgh. This notice was served on the commissioners of Mt. Pleasant on the 21st of November, 1881. The question presented by the return to a writ of certiorci/ri issued herein, is what notice of dissatisfaction is required to be served upon a town clerk in cases where a reassessment is asked by a jury under chapter 455 of the Laws of 1847. By the fifth section of that act it is provided that “ any person conceiving himself aggrieved, or the commissioner or. commissioners on the part of the town feeling dissatisfied by any such assessment, may within twenty days after the filing thereof as aforesaid, signify the same by notice in writing and serving the same on the town clerk and on the opposite party, that is, the persons for whom the assessments were made, or the commissioner or commissioners of highways as the case may be, asking for a jury to reassess the damages, and specifying a time not less than ten nor more than twenty days from the time of filing said assessment, when such jury will be drawn at the clerk’s office of an adjoining town of the same county by the town clerk thereof, which notice shall be served upon said opposite party within three days after service upoii the town clerk as aforesaid.”

As has been observed, the award was filed November,3,1881, and the notice was served on the town clerk on the 19th of November, 1881, returnable on the 22d of November, 1881, at ten a. m. The notice was served on the commissioner within three days thereafter, but only one day before the drawing of the jury. The section is not clear. It may be presumed, however, that a notice was intended to be given to the commissioner before the drawing of the jury. Such a presumption is in accordance with the uniform legislation in cases involving private rights and interests. The construction 'of the section claimed by respondents, that a notice may be given at anytime within the twenty days to the town clerk, cannot reasonably be supposed to be, the one designed by the legislature. There is reason in the section itself against this construction. The drawing of the jury cannot be specified for a day within ten days after the filing of the award. No reason is perceived why, if no real notice was'to be given, the day was put off until after the first ten days had expired after the award was filed. Again, the service of the notice upon the commissioners is directed to be made within three days after the service upon the town clerk. A greater interval than three days must have been intended between the service on the town clerk and that upon the commissioners, for a service of the notice upon the last day, as would be possible under the construction claimed, would be practically of no effect.

It seems, therefore, that the true construction of the section is this, a notice may be given returnable not less than ten days from the service and upon a day within the twenty days after the filing of the award. This would give the commissioners seven days notice at the least. If this is the right construction the whole proceedings are void. The notice is a prerequisite to the jurisdiction of the subject-matter. (The People ex rel. Mitchell v. Lawrence, 54 Barb., 589 ; Dudley v. Mayhew, 3 N. Y., 9 ; Merritt v. Village of Portchester, 71 id., 309.) Jurisdiction could not be conferred by the appearance of the commissioners at the reassessment. (People v. Connor, 46 Barb., 333.)

The proceedings should be reversed, with costs.

Dtkman J., concurred ; Cullen, J., dissented.

Reassessment proceedings reversed, with costs.


text:
    PATRICK J. McARDLE and PATRICK HART, Respondents, v. BENJAMIN ATHA, JOHN ILLINGSWORTH and ALBERT O. HEADLEY, Appellants.

      Executory contract— right of the vendee to object to the quality of the goods after theirr delivery and acceptance.

    The plaintiffs, through one Duffy, agreed to sell scrap steel to the defendants, at two cents per pound. There were to be fifteen tons of tool and fifteen tons-of file steel to' every twenty tons of other scrap steel. The tool and file steel was heavier and more valuable than the other. The plaintiffs had the right to deliver an unlimited amount of steel in these proportions. They delivered first eighty and then twenty tons. The last lot was assorted by Duffy, at the defendants’ request, after its delivery. There was so little tool and file steel delivered as to reduce the value of the lot to one and one-third cents per pound.
    In an action brought by the plaintiffs to recover for the steel so delivered, the referee held that the contract being an executory one was to be deemed performed, the steel having been, after an opportunity to examine it, accepted by the defendants, and that the plaintiffs were entitled to recover the full contract price.

      Held, that this was error.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee in an action to recover for certain “ mixed steel ” sold and delivered by the plaintiffs to tbe defendants.

      B. B. Clark, for the appellants.

      E. A. Brewster, for the respondents.
   Barnard, P. J.:

The evidence shows that one John S. Duffy agreed to sell to the defendants fifty tons of scrap steel at two cents per pound. The steel was to be delivered in the following proportions : Fifteen tons tool steel and fifteen tons file steel to twenty tons of other scrap steel. Subsequently Duffy found at Newburgh a lot of steel scrap of about eighty tons, which belonged to the plaintiffs, which they agreed Duffy might sell to defendants for them on a commission. Duffy then agreed to sell the eighty tons in the proportions aforesaid. The steel was subsequently delivered, and was not in the proportions agreed upon. The plaintiffs then agreed to sell twenty more tons to defendants on the same terms and in the same proportions, and they had the right to deliver an unlimited amount of steel in those proj>ortions and at that agreed price. Upon' the deliveiy of the last twenty tons the steel was not assorted, and Duffy, on a request from defendants, did assort the lot. The tool steel and the file steel is the most valuable, being heavy steel. Of the entire amount delivered, there was such a deficiency of this heavy steel from the agreed proportions as to x-educe the value of the entire lot delivered from two cents to one and one-third cents per pound.

The referee decides that the defendants must pay the entire agreed px'ice for the steel, notwithstanding the non-delivery of the proper proportions of heavy steel. This conclusion seems to be ei’roneous. The learned referee puts the case upon those authorities which hold that an executoi’y conti’act is deemed pei’foi’med by an acceptance of the subject of the contract after opportunity to examine. It seems to me that those cases do not include the present one. The case of Reed v. Randall (29 N. Y., 358) was an executory contract for the sale of tobacco. The tobacco was delivered as merchantable, and was accepted, without objection, in execution of the contract. It was held that the vendee coixld not sue for damages based upon the xxnmei’chantable chai’acter of the tobacco.

The case of Beck v. Sheldon (48 N. Y., 365) was one similar in principle. The contract called for No. 1 and No. 2 pig iron at certain prices. The quality of pig iron is determined by the granulation. The skilled employer determines by the fracture to which grade it belongs. The grades thus determined were delivex’ed as the gi’ades called for; and it was held that after acceptance the contract was performed, and that the grades received and accepted were to be deemed thus contracted for. To the same purport is Dounce v. Dow (64 N. Y., 411).

The case of The Dutchess Company v. Harding (49 N. Y., 321) has no’ relevancy to the question presented. In that case the ■vendor had induced an acceptance of sumac by fraud. The case of McCormick v. Sarson (45 N. Y., 265) holds that after lumber is received as prime and xnerchantable it is too late to object. The contract was performed when the lumber was received in execution of it.

In tbe case under consideration there is no question made as to tbe quality of tbe goods or as to tbe performance of tbe contract. The proper proportions were not delivered so as to entitle tbe plaintiff to tbe price agreed upon. Tbe steel was not received in execution of tbe contract. There was no limit lo tbe amount which plaintiff might deliver, and there was no .requirement that the heavy steel could not be kept to the time of tbe last delivery. Tbe acceptance was of light steel and as such it was delivered and invoiced. To bold that such a delivery is to be held a delivery of heavy steel does not seem to be just. - Tbe plaintiffs under such a rule could obtain a premium for violating bis contract. The caséis not one of warranty, strictly so called. There is no question presented whether the steel delivered was as recommended, but whether the plaintiffs have performed their contract so as to entitle them to the contract-price. If the contract in reference to the proportions is a warranty, there was no obligation.to return' the goods but the defendants might recover their damages as an offset. (Hawkin v. Pemberton, 51 N. Y., 198.)

The judgment should be reversed, and a new trial granted, costs, to abide event, and order of reference vacated.

Dykman and Cullen, JJ., concurred.

So ordered.


author: Barnard, P. J.: Cullen, J.,

text:
    CHARLES T. GOODWIN and AMELIA P. INGRAHAM, Executors, etc., Respondents, v. GEORGE E. INGRAHAM and Others, Appellants.

      Will — when a lapsed legacy does not fall into the general residue,— when an estate-for life is not made absolute by an absolute power of disposition.

    A testator bequeathed to two persons named in his will the sum of $50,000, to. be held in trust for the benefit of his five children. He gave, devised and bequeathed all the rest, residue and remainder of his estate, both real and personal, of whatever kind and wherever situated, to his wife, “provided and so-long as she shall remain my widow, to have and to hold unto her, the said Amelia P. Ingraham, for and during the term aforesaid, with power of distribution as her absolute estate, by will or otherwise, provided she shall continue unmarried during the remainder of her natural life, after my decease.” The trust involved an unlawful suspension of the power of alienation, and., was void.

      Meld, that the $50,000 did not pass to the widow under the residuary clause, hut should he distributed as in case of intestacy. (Cullen, J., dissenting.)
    That the widow did not take an absolute estate, but only an estate for life, with a power of disposition, and that in case she failed to exercise such power, the propeity would pass to the heirs-at-law of the testator.
    Appeal from a judgment, entered upon the trial of this action by the court without a jury.
    The action was brought to obtain a construction of the will of Edward Ingraham, deceased. After the payment of his just debts and funeral expenses he gave to two persons named in his will the sum of $50,000, to be held in trust for his five children. The trust was to continue during the lives of all the children, and was, for that reason, declared void. The residue of his estate he gave to his wife so long as she remained his widow. The Special Term held that the $50,000 fell within the residue and that the widow took an absolute estate thereto.

      Alexis O. Smith, for infant defendants, appellants.

      Smith dé Woodward, for the respondents.
   Barnard, P. J.:

The construction put upon the will in question completely deprives the children of the testator of any interest in his property. This result is reached, not by the will of the deceased, but directly in opposition to it. The testator gives $50,000 in trust to his ■children, five in number. This trust is void for the reason that the absolute ownership of the fund is suspended beyond two lives in being at the creation of the trust estate.

The residue of his property is given to his widow provided and so long as she shall remain my widow, to have and to hold unto her the said Amelia P. Ingraham, for and during the term aforesaid, with power of distribution as her absolute estate by will or otherwise, provided she shall continue unmarried during the remainder ■of her natural life after my decease.”

The decree throws the $50,000 into the residuum of the estate, .and gives the whole estate as an absolute and unconditional one to the widow.

The first conclusion is erroneous under Kerr v. Dougherty (79. N. Y., 327). In that case the Court of Appeals say • “ the general rule is that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of. But this rule does not apply where the bequest is of a residue of a residue, and the first disposition fails.”

It was accordingly held that when certain legacies in the will failed, that augmentation of the residue by the failure did not go to the residuary legatees but devolved as undisposed of.

As to the $50,000, therefore, the same must be distributed as in case of intestacy.

I think the widow did not. take an absolute estate. She had only a life estate and that depended upon her remaining unmarried, and only so long as she remained unmarried, and power to dispose of by will. She can give no title now which will prevent her title from divesting if she hereafter marry again.

The power of disposition by will or otherwise did not enlarge her estate. (Livingston v. Murray, 68 N. Y., 485.) If the power was unexercised the title to the property would pass to those entitled.

The judgment should be modified by declaring that the $50,000 is to be divided as if there was no will and that the widow only takes a life estate in the residue if she remain unmarried during life, and that she takes no estate for a term longer than she remains unmarried.

The allowance to the plaintiffs should not exceed $100, besides taxed costs.

Dykman, J., concurred.

Cullen, J.,

(dissenting):

The trust sought to be created by the testator in favor of his children was by its express terms to continue during the lives of all five and the power of alienation was suspended during such lives. Hence the trust contravened the statute and was void. Being personalty this bequest thus void fell into the residuary estate. For the rule is clear as to personal property whatever may be the law as to realty, that bequests originally void on account of illegality as well as those that lapse for any reason, pass to the residuary legar tee. (1 Jar. on Wills, 645 ; Van Kleeck v. Dutch Church, 6 Paige, 600; Lefevre v. Lefevre, 59 N. Y., 446.)

The residuary estate, real and personal, is given to the testator’s widow provided and so long as she shall remain such widow, with power of distribution as her absolute estate by will or otherwise provided she continued unmarried during the remainder of her life. There is no gift over in case of remarriage. Though the estate given to her was during widowhood, still as that was accompanied by a general power of disposition by will or otherwise, not for support or consumption, but subject only to the proviso that she remained single, we think the widow took an absolute estate in the personalty and a fee in the realty, subject to be defeated by remarriage. This condition was void as to the personalty, because there was no bequest over, but was valid as to thoe real estate. (Hogan v. Curtin, 88 N. Y., 162.) It follows that the remainder in the testator’s real estate, contingent on the remarriage of the widow, was undisposed of by the will. • As to this interest or estate the testator died intestate. It consequently descended to his lieirs-at-law, his five children. This estate, whether contingent or vested, is absolute in such heirs, capable of alienation or other disposition. (Ham v. Van Orden, 84 N. Y., 257; Moore v. Littel, 41 N. Y., 66.) Such of the defendants as are grandchildren of. the testator have therefore no interest or estate in the realty.

The judgment appealed from should be modified in accordance with this opinion. Costs of all parties to be paid out of the estate.

Judgment modified in accordance with opinion of Justice Barnard and ordered to be settled by him.