text:
    Louis F. Martin et al., App’lts, v. Eliza Jane Adams et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

      1. Debtor and creditor—Compromise.
    A compromise is not rendered invalid by tbe offer of additional inducements by a third person, without the knowledge of the debtor, to some of the creditors for the purpose of procuring their assent.

      2. Same—Ratification.
    The retaining of the benefits under the compromise, after the discovery of the alleged fraudulent preference of creditors, is a ratification.
    Appeal from a judgment dismissing the complaint on the merits.

      M. H. Begensburger, for app’lts; Hugh Porter, for resp’ts.
   Parker, J.

On a former review, in April, 1891, this court reversed a judgment in favor of the defendants, on the ground that one of the creditors uniting in the compromise agreement had a secret contract, by which it acquired further advantages than that obtained by the rest of the unsecured, creditors. 38 St. Rep. 397; 14 N. Y. Supp. 626. The retrial resulted, as did the first one, in a .judgment in favor of the defendants, and the appellants insist that such a result could only have been reached by disregarding the prior decision of this court.

' On the 9th day of August, 1882, the firm of R. & H. Adams made a general assignment for the benefit of their creditors. Thereafter a compromise agreement was entered into, by which these plaintiffs and the other creditors agreed to accept and receive in satisfaction of the debts owing them 55 per cent., m the notes of their debtors, indorsed by Robert Adams, and further secured by mortgage upon certain property situated at Paterson, N. J., the notes being payable in five equal annual installments, with interest. There was a further agreement that Henry Adams should pay to each of the creditors, at the expiration of one year after the payment of the notes, his share of the net profits or earnings of the business of any firm of which he should thereafter become a member, but not exceeding 10 per cent, of the principal of the respective claims of the creditors, and interest on the 10 per cent., at the rate of 6 per cent., from the date of the mortgage given to secure the 55 per cent, and interest. "While effort was being made to induce all of the creditors of the insolvent firm to become parties to the compromise agreement, William Adams, a son of Henry Adams, one of the assignors, without the knowledge of the other creditors, made a further agreement with the Second National Bank of Fall River, by which he agreed to purchase the interest of the bank in the 10 per cent, which the debtor Henry Adams promised to pay only on condition that a profit should result to himself individually or as a member of some firm. In payment for this interest, he agreed to give his notes for a sum equal to 10 per cent, of the bank’s claim. While the notes which were given by William Adams in pursuance of his contract were never paid, and it does not appear that he was solvent when they were given, still the conclusion was reached, as we still think, rightly, that, if the notes were accepted in preference to the contingent offer of the debtors, the element of advantage to one or more creditors, as against the others (essential to the making out of such a cause of action as the complaint alleges), was present. It was still necessary, to entitle the plaintiffs to recover, that it should in some way appear that the debtors, or one of them, were so connected with the transaction as that they should be chargeable with the consequences of it. That such was the fact this court deemed reasonably established by the evidence, and it referred to a memorandum signed “H. A.” as a strong evidentiary fact tending to establish that such was the relation of the parties; the other person who signed his initials to the writing having testified that the initials “ H. A.” were subscribed to the writing by Henry Adams, in the presence of the witness. The memorandum reads as follows:

April 17th, 1883.

“ Henry Adams says he will see that the notes given by William Adams in settlement of affairs of R. & H. Adams will be paid at maturity. C. E. O.”

“H. A.”

This writing, considered in connection with the other facts and circumstances proved, induced this court to hold that Henry Adams understood and participated in the attempt to pursuadethe Second National Bank of Fall River to sign the compromise agreement by giving to it something which it preferred to the possibility only which the debtors offered beyond the 55 per cent. The referee, in his report, upon which the judgment under review is based, found that: “ No creditor received from said firm or said Henry Adams, on signing the said deed, or at any other time, any sum of money, or any property or valuable thing, over and above the said sum of fifty-five per cent., as in said deed provided; and that the said Henry Adams or Peter Horne or said old or new firm of R. & H. Adams have not given or granted to the said creditors, or either of them, any preferences whatsoever; and that the amount of such payments was $497,000 of principal, and about $100,000 of interest.”

After making this general finding, he passes upon the facts relating to the purchase of the contingent dividend. He finds (1) that William Adams gave to the Second National Bank of Fall River his two certain promissory notes for $250, in pursuance of the agreement made in the month of April preceding; (2) that “ neither the said agreement nor the giving of said notes nor the purchase of said dividend was known to the said Henry Adams, Peter Horne, or Robert Adams, and the payment of said notes was never guaranteed by said Henry Adams; ” (3) that “ the exhibit received in evidence, and marked ‘ Exhibit B,’ was originally dated in the year 1884, and was subsequently antedated 1883. The words * William Adams in settlement of the affairs of R. & H. Adams,’ therein contained, were written over an erasure. Said paper had no consideration; was not subscribed by Henry Adams; and he had no knowledge of the existence thereof.”

Thus, we are confronted with findings asserting that the debtor Henry Adams was not a participant in the transaction relating to the purchase of the contingent dividend from the Second National Bank of Fall River by William Adams; and, further, that he had no knowledge whatever of the transaction. Even the memorandum which purports to guaranty the payment of the notes of William Adams, and which this court, on the former review, regarded as an important piece of testimony, is found not to be genuine. The learned referee finds that this memorandum was not subscribed by Henry Adams, and that he had no knowledge of its existence. If these findings of fact have legal support in the evidence contained in the record, it is at once apparent that an entirely different situation is presented, for the findings, if properly made, command the judgment rendered. If Henry Adams executed the compromise agreement in good faith, and faithfully and honestly carried out its terms, he cannot be deprived of such benefits as may have accrued from the agreement and his subsequent labor in furtherance of it because of the act of another, done without his consent and without his knowledge. The attempt to connect Henry Adams with the transaction between William and the bank was made through C. E. Orvis, who acted as agent for the bank in the transaction. He produced a private memorandum book, from which was taken the so-called guaranty ” of Henry Adams, which we have already quoted. Orvis testified that the initials “H. A.” were written by Henry Adams at the date which the memorandum bears. On the part of the defense, Mr. Holmes, the- cashier of the Second National Bank, testified, in substance, that the resolution of the directors authorized Orvis to settle on the terms proposed in the Composition deed ; that he was without authority to make any different arrangement; that the receipt of the William Adams notes was never made the condition or prerequisite for the acceptance and signing of the compromise; nor was authority given Orvis, at any time or in any place, either verbally or in writing, to ask or reseive any guaranty which would give the bank a preference over any other creditors. Upon being shown Exhibit B, which is the writing taken from the memorandum book of Orvis, the witness testified that the “ bank ” had no knowledge of such a paper, and had never ratified it. An examiner of ques; tioned handwriting was produced by defendants, and he testified that the letters “ H. A.,” in Exhibit B, were hot written by the person who wrote what was admitted tobe Henry Adams’ genuine signature He further testified that the body of the memorandum had been altered by the erasure of that which had been originally written, and for it had been substituted the words ‘'William Adams in settlement of affairs of B. & H. Adams. ” Henry Adams denied writing the letters “ H. A.” ■ William Adams, Sr., and William Adams, Jr., each testified that the initials “H. A.” were not in the handwriting of Henry Adams. It is clear that the finding by the referee that Henry Adams did not sign the memorandum is so sustained as denies to this court the right of reversal on the ground that it is against the weight of evidence. Without further discussing the evidence relating to the alleged connection of Henry Adams with the agreement of William Adams to purchase the contingent dividend, it may be said that such findings, in all material respects, are as well sustained as the one asserting that Henry Adams did not sign the memorandum.

Eor still another reason the affirmance of the judgment is required. The complaint is in equity. .The prayer for relief asks that the composition deed be decreed utterly void, and of no force or effect, and that the defendants, be forever enjoined from pleading- or proving it in any suit or action at law. But the referee finds that “ in or before the month of July, 1888, and before the last compromise notes were paid, the plaintiffs herein were informed of the alleged frauds committed in relation to said compromise, as set forth in said complaint, and with such knowledge the plaintiffs, and each of them, received and accepted the money due on said notes, which became due in August, 1888, without protest or objection ; ” and that “ after the payment of said last mentioned compromise notes, and before the commencement of this action, the said plaintiffs did not, nor did either of them, obtain or acquire any additional information in relation to said alleged frauds.” Thus, it appears that, with full knowledge of all the facts which the plaintiffs have proved, they proceeded in affirmance of the contract. They retained in their possession the notes not yet matured. At maturity, they accepted the payment of them, and surrendered the notes. Immediately thereafter, this suit was commenced, but too late; for the rule is well settled that one who takes a benefit under a contract after knowledge of the fraud which vitiates it is not thereafter entitled to have the contract adjudged fraudulent. The acceptance of benefits under such a contract, witn knowledge of the wrong which discredits it, operates as a ratification. Cobb v. Hatfield, 46 N. Y. 533. The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Selser Brothers Company, App’lt, v. Potter Produce Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    1. Attachment—Second motion—Leave.
    A motion for an attachment on new papers, after the vacation of a former attachment, does not require leave for its presentation.
    2. Same—Affidavit—Counterclaim.
    An averment in an affidavit for an attachment by an assignee that a certain sum is due “ over and above all counterclaims known to deponent,” is sufficient.
    Appeal from an order granting a warrant of attachment.

      Hlon S. Hobbs, for app’lt; J. B. Leavitt, for resp’t.
   Van Brunt, P. J.

We see no reason for interfering with the action of the court below. The moving party, upon the new papers, has obtained an attachment in which the previous defects were obviated. The motion made for the issuing of the new attachment was not a renewal of the old motioh, but one based upon a new state of facts. It therefore required no leave for its presentation. The court out of which the original process was issued had power to vacate the same, and, having done so, the parties were in .the same situation as though no such proceedings had been taken. The objection that there was no sufficient allegation, in respect to counterclaims is not well taken. In case of a suit by the assignee of a qlaim it is sufficient if such assignee avers that there are no counterclaims to his knowledge, this being the' requirement of the Code. The order should be affirmed, with $10 costs and disbursements. All concur.


author: Dykman, J.

text:
    Frank T. Gilbert, Resp’t, v. Long Island Railroad Company, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed July, 1894.)

    Appeal—Presumption.
    Upon an appeal from a judgment entered upon a verdict, the facts are presumed to have been found by the jury according to tbe prevailing party’s evidence.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      W. C. Beecher, for app’lt; Charles J. Patterson, for resp’fc.
   Dykman, J.

This is an action for the recovery of damages for injuries inflicted by an engine upon the defendant’s road. The accident happened near Ozone Park on Long Island, where the track runs nearly north and south.

The plaintiff, with a man named Styler, was riding in a wagon drawn by one horse. Styler was driving and they were coming from the east towards the west, and as they approached the railroad there was a train passing north. He stopped sixty or seventy feet from the track and waited until that train moved away..

There were two tracks at that place and the passing train was on the easterly track nearest to the plaintiff.

After the train passed the wagon of the plaintiff started to cross behind it and was struck by the engine of a south-bound train on the westerly track. The plaintiff was thrown from the wagon and received serious injuries. The cause was tried before a jury and the plaintiff recovered a verdict for $7,500.

From the judgment entered upon the verdict and from the order denying a motion for a new trial on the minutes of the court the-defendant has appealed.

The usual questions in this class of cases were raised upon the trial, and testimony- was given in relation to the question of negligence on the part of the defendant and the contributory negligence of the plaintiff, and it was a proper case for the jury.

The case was properly presented by the charge of the trial judge, which is free from error.

We must assume that the jury found the facts according to the testimony introduced on behalf of the plaintiff, and that was amply sufficient to sustain the verdict.

The judgment and order should be affirmed,- with costs.

Brown, P. J., and Cullen, J., concur.

Judgment and order affirmed, with costs.


text:
    In the Matter of the Application of Jonas Litt, Resp’t, for a Peremptory Writ of Mandamus against Z. Taylor Emery, M. D., as Commissioner of the Department of Health of the City of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July, 1894.)

    Municipal corporation—Health department.
    The time, within which the commissioner of the department of health of the city of Brooklyn may summarily remove an employe, cannot be extended by agreement.
    Appeal from an order granting a writ of mandamus, requiring appellant to restore the petitioner to the position of meat inspector in the department of health in the City of Brooklyn.

      Alexander H. Van Cotí, for app’lt; Joseph, G. Gray, for the petitioner, resp’t.
   Dykman, J.

This is an appeal from an order directing the issuance of a peremptory writ of mandamus requiring the commissioner of the department of health of the city of Brooklyn to restoi-e Jonas Litt to the position of meat inspector in that department.

Our conclusion is that the order should be affirmed on the opinion of the judge who made it.

Brown, P. J., concurs; Cullen, J., not sitting.

The opinion of the justice upon the granting of a peremptory writ of mandamus was as follows:

‘Cullen, J.—‘‘The statute prescribes the period after his appointment, during which the head of a city department may remove a subordinate summarily and without cause. This limitation is prescribed not merely for the benefit of the employee but for the efficiency of the service in the city departments. It will not do either for the commissioner or for the courts to say that the period is too brief. It is sufficient to say that it is the time fixed by the statute. Therefore, by no arrangement or agreement between the commissioner and his subordinates, can the time be extended or the powers of the commissioner be increased. The same principle has been decided in the matter of salaries. In the case of People ex rel. Satterlee v. The Mayor, 75 N. Y. 88, the relator was appointed a police surgeon by a resolution fixing his compensation at $1,500 a year, which he accepted. The statute fixed the salary at $2,250. Held, that the relator was entitled to recover the difference. It was said by the court of appeals : ‘The law does not recognize the principle that a board of officers can reduce the amount fixed by law for a salaried officer, or that the official can make a contract to that effect. The doctrine of waiver has no application to any such case.’ The same rule was held to apply to a mere employe of the state, a fireman at work in the capital. Kehn v. The State, 93 N. Y. 291. Surely, if a contract cannot modify the salary of a public employee in contravention of the statute, much less can it effect his tenure of employment.

“It may be claimed that though the employee could' revoke his resignation, it was the subject of acceptance till revoked. The frankness of the respondent in his affidavit disposes of such claim. The paper was in no sense a resignation except in form. It was given by the relator, not for the purpose of withdrawing from his employment, but as condition of securing its continuance. The respondent makes affidavit, ‘that said Jonas Litt (the relator) well knew if he did not give this deponent said letter of resignation, deponent had the power to and would dismiss him at once from said department.’ This frankness of statement shows that the respondent acted in entire good faith in his belief as to his powers, but, nevertheless, the action is wholly illegal. Motion granted, with $10 costs.”


author: Freedman, J. Gildersleeve, X,

text:
    Giullermina Govin, Resp’t, v. Luciana Govin De Miranda, as Executrix, etc., App’lt. Felix St. Anna Govin, Resp’t, v. Luciana Govin De Miranda, as Executrix, etc., App’lt. Emilia Govin, Resp’t, v. Luciana Govin De Miranda, as Executrix, etc., App’lt.

      (New York Superior Court, General Term,

      Filed October, 1894.)

      1. Former adjudication—Subject matter.
    A judgment, determining the title to, and ownership of, securities is conclusive between the parties in a subsequent action to recover the interest upon such securities, where it was collected by the unsuccessful party prior to the recovery of such judgment.

      2. Interest—To whom belongs.
    Interest payable by the terms of a contract, presumptively belongs to the owner of the contract at the time the interest falls due.
    Appeal from a judgment entered on the verdict directed by the court, and from an order denying a motion for a new trial.

      Stearns <p Curtis (Edward 0. James and Cephas Brainerd, of counsel), for app’lt; Abram Kling, for resp’ts.
   Freedman, J.

In each of these cases the direction of the verdict proceeded upon the theory that the decision of the court of appeals in Govin v. De Miranda, 140 N. Y. 474; 55 St. Rep. 837, admitted of no other disposition. But under the decision rendered in March, 1894, by the general term of the supreme court in Govin v. De Miranda, 59 St. Rep. 337; 27 N. Y. Supp. 1049, which, after full re-examination on plaintiffs appeal, was reaffirmed by that court in June, 1894, and for the reason there stated, each of the cases now before us, by reason of the appearance of additional facts, is clearly to be distinguished from the case decided by the court of appeals. The result is that, upon the facts as they now appear, the judgments in favor of the plaintiff in the first and in the second of the above-entitled cases cannot be sustained. No estoppel appears in either of the two cases referred to which prevents the defendant from availing herself of the actual facts.

The third case, in which Emilia Govin is the plaintiff, presents, however, a new feature. In a former suit between the same parties and involving the title to the identical certificates it was determined by the supreme court that the plaintiff was the owner thereof; that the defendant, as executrix, etc., held the same as trustee for the plaintiff, and that the defendant, as such executrix, was bound to indorse the certificates for plaintiff’s benefit and to acknowledge the said indorsement, all of which was subsequently done. This judgment, which determined plaintiff’s title and ownership, is conclusive upon the defendant in the present action, and the question as to plaintiff’s title and ownership cannot be retried. The present action is for interest accrued upon the United States bonds represented by these certificates, which interest was collected by defendant’s testator in his lifetime. The interest payable by the terms of a contract is but an incident thereof, and presumptively belongs to whoever owns the contract when the interest falls due. This presumption may be overthrown by showing that the owner assigned the interest due or to become due, and in case it is payable upon the presentation of coupons, that they were detached and transferred by the owner. This is an affirmative defense. No such defense was made in this case. Nor is there any evidence establishing an intention on the part of the plaintiff to relinquish the interest. Plaintiff’s present claim for interest was not necessarily a part of the action by which her title and ownership was determined in the supreme court. Until she recovered the certificates with a proper indorsement thereon, she was not in a position to litigate the question of interest collected thereon by other parties. As regards the question of a former conclusive adjudication as to title and ownership, and the consequent right of the plaintiff to recover interest, the case of Emilia Covín falls directly within the decision of the supreme court of the case of Felix St. Anna Govin v. Luciana Govin De Miranda, as Executrix, etc., 79 Hun, 329; 60 St. Rep. 586, which involved a claim, for interest upon nineteen railroad bonds. The decision last referred to also disposes of defendant’s contention as to the statute of limitations.

For the foregoing considerations the judgments and orders in the first two cases should be severally, reversed, and in each case a new trial ordered, with costs to the appellant to abide the event. In the third case the judgment and order should be affirmed, with costs.

Gildersleeve, X,

concurs.

Judgments and orders in first two cases reversed and new trials ordered, with costs to appellant to abide event. Judgment and order in third case affirmed, with costs.


author: Per Curiam.

text:
    Bridget Nealon, Resp’t, v. Mortimer A. Frisbie, App’lt.

      (New York Superior Court, General Term,

      Filed August, 1894.)

    1. Appeal—Order overruling- demurrer.
    An appeal does not lie from an order overruling a demurrer.
    2. Same—Motion.
    The remedy is by motion, where such order is incomplete in not directing the final or interlocutory judgment to be entered thereon.
    Appeal from an order overruling a demurrer to the complaint.

      J. M. Ferguson, for app’lt; P. A. McManus, for resp’t.
   Per Curiam.

The notice of appeal states that the defendant appeals from the order overruling the demurrer. No appeal lies from such an order. Garner v. Harmony Mills, 45 N. Y. Supr. Ct. 148; Campbell v. N. Y. Cotton Exchange, 47 id. 558; Cambridge Valley Nat. Bank v. Lynch, 76 N. Y. 514.

Moreover, the order is incomplete in not directing the final or interlocutory judgment to be entered thereon, as required by § 1021 of the Code. The remedy in this respect is by motion. The appeal must be dismissed, with costs.

Present: Freedman and McAdam, X X

Appeal dismissed, with costs.


author: Sherman, S.

text:
    In the Matter of the Estate of Bridget Fox, Deceased.

      (Surrogate’s Court, Chautauqua County,

      Filed October, 1894.)

    1. Husband and wife—Entirety.
    When land is conveyed to husband and wife, they do not take as tenants in common or as joint tenants, but as tenants by the entireties.
    2. Will—Capacity.
    The evidence was held to establish that the decedent was not of sound mind and memory when she made the second will, and was induced to sign the same by undue influence.
    Application for probate of will.

      ■James I Fowler, for proponent, Rev. Richard Coyle; •Walter L. Sessions, for contestant, Honora-Fox.
   Sherman, S.

\The testatrix died at about 11 o’clock on January 12, 1892, leaving no real estate, but personal property, as alleged in the petition, of the value of about $600, and leaving no husband or next of kin and no heirs. Her former husband, Martin Fox, died intestate about seventeen years before, leaving by his first wife two sons, residing in Ohio, and one daughter, said Honora Fox, the contestant, residing in Jamestown, N. Y.

Warren D. Shaw and wife conveyed to Martin and Bridget Fox, for the consideration of $150, by deed dated May 14, 1863, .about one-quarter of an acre of land in two adjoining village lots on the “Warren road,” so called, leading from the then village of Jamestown to Warren, Pa., and said Bridget Fox, after the death of her husband, Martin Fox, sold and conveyed the same land on November 18, 1890, to John Wood and Martha, his wife, for the consideration of $300, reserving, however, the use and possession of the north half of said premises and also subject to the payment by said Wood of the unpaid taxes thereon, same being a part of the consideration, in addition to the $300, and the amount of said taxes was not proved.

The north half of said premises, of which the use was- reserved to the said Bridget Fox during her life, had a small house or shanty, twelve by sixteen feet, thereon, of little value, with two rooms, which she occupied at the time when said deed was made and up to the time of her death, on January 12, 1892.

Said Warren D. Shaw and wife conveyed to said Bridget Fox another village lot, adjoining the above two lots, on April 20, 1860, when she was a single woman, unmarried,' and after her marriage to Martin Fox, and after his death, she conveyed the same to John Davidson, who was a witness to her alleged will here contested, for $600, paid down.

The decedent signed the instrument propounded as her last will, by making her mark, at about 4 o’clock in the afternoon of the same day she died, being about seven hours before her death, and by such will, by its terms, she devised and bequeathed to the Rev. Richard Coyle, rector of the Catholic church in the city of Jamestown, all her real and personal estate, subject to the payment of her debts and burial expenses, and appointed said Rev. Richard Coyle sole executor thereof, and revoking all former wills by her made, and the same was witnessed by James L Fowler and said John Davidson, both of Jamestown, N Y.

Notice of probate of such alleged will was duly served, upon the attorny-general of the state and the county treasurer of said county, neither of whom appeared in proceedings on probate.

The above named Honora Fox made answer contesting the will, upon the ground^ that the testatrix was of unsound mind when she signed it, and that she was induced to sign it by the undue influence of said Rev. Richard Coyle and others.

It appeared from the evidence on part of the contestant that the decedent had, a few minutes past 8 o’clock on the evening of .January 11, 1892, signed another instrument purporting to be her will, which was witnessed by Margaret Donlon, wife of John Donlon, C. W. Creal and Mary Higgins, and such alleged will purported to give, devise and bequeath all hér property, both real and personal, to the above named contestant, Honora Fox, commonly called “ Nora,” and appointing said Margaret Donlon executrix thereof.

The learned counsel for the proponent claimed that the deed of this property by Warren D. Shaw and wife,’dated May 14, 1868, to Martin Fox and Bridget Fox, his then wife, conveyed the property to them as joint tenants, and that upon his death she became the owner of the property in fee as his survivor.

The learned counsel for the contestant claimed that Martin and Bridget Fox were only tenants in common, and that upon his death the property descended to his heirs, Honora, William and Michael Fox, children by his first wife.

I hold and decide that under the common-law rule applicable to this case, that when land is conveyed to husband and wife, they do not take as tenants in common or as joint tenants, but each becomes seized of the entirety per tout and not per my, and that upon the death of either the whole descends to the survivor. Bertles v. Nunan, 92 N. Y. 152, overruling Meeker v. Wright, 76 id. 262, Zorntlein v. Bram, 100 id. 12.

I hold that upon the death of Martin Fox intestate, his wife Bridget became seized in fee of absolute title to the entire premises.

James I. Fowler, attorney for the petitioner and one of the witnesses to the will of January 12, 1892, testified that he drew the will in question; that he went down to the little house of the decedent in the afternoon of the day the will was drawn; that he went into the room up to the bed and asked Mrs.' Fox is she knew him, and she reached out her hand and gave an expression of “Yes,” shook hands; that he asked her, he thought, if she wanted her will made; that she said yes; that he asked her to whom she wanted her property left; that he called in Mr. Davidson, and then asked her again and she said, “ Father Coyle; ” that he read over to her the will which he had drawn and asked her if that was right; that she replied that it was; that he then asked her, ho thought, if he should sign her name, that he knew, she could not write, and she said, “ Yes; ” that be sat at the table and wrote her name and told her to sign by making her mark which she did; that he then asked her if she acknowledged that to be her last will and testament, to which she replied, “ Yes; ” that he then asked her if she desired Mr. Davidson and himself to act as witnesses; that he and the other witness, Davidson, then signed their respective names; that he asked her if he should take the will or what she would have done with it; that she said she desired that he should take it; that he thought she was perhaps eighty years of age, or about that; that he thought she was of sound mind and memory and with full knowledge of what she was doing; that the will was then in the same shape that it was the day it was drawn.

On his cross-examination by Mr. Sessions-the witness testified: That he went np there with the idea of making the will in the forenoon; that Mr. Davidson requested him to go. up, and that Mr. Davidson told him the old lady had sent down for him to come up and draw her will; that this was on January 12, 1892 ; that he went up there and made inquiries regarding her health that morning and rapped at the door on the outside; that Mrs. Margaret Donlon came to the door and stepped out and closed it, and that he told her that he was there to draw Mrs.' Fox’s 'will, and that she made some reply which he did not understand; that he asked her, “Isn’t Mrs, Fox able to ? ” and that she said “ Oh, no ; ” that she was not in her right mind and could not see anybody, and some other expressions ; that he said, “Why, I understood she sent for me; ” that Mrs. Donlon said her will was made; that he said, “ Who made it? ” and she said, “ She had a lawyer; ” that he saw that she was not inclined to. admit him into the house; that he came down and met Mr. Davidson, and witness said to Mr. Davidson that they told him that she had a will and that there was.no use of staying and that he vrent home; that he was not satisfied that she was not in a condition to make a will. To the question, “ Didn’t you state'at the time that the will would not be worth a snap of your fingers ? ” witness replied, “ I didn’t know.” To the question, “ Didn’t you ask permission to go in ? ” the witness answered, “No more than I stated what I had come, for.” To the question, “Didn’t she tell you that she was dying ? ” witness answered, “ I don’t know as she used that expression ; she gave me the impression that she did not know what she was about; and that she had her will made.” The witness further testified that Mrs. Margaret Donlon did not tell him to whom the old lady had willed her property; that he, witness, drew the will from what Mr. Davidson had told him, and not from anything “ Father Cojde” had told him; that he never had any conversation with Father Cojde whatever on the subject; that Father Coyle was the priest in the city there over the Catholic church for many years; that up to the time the witness went there in the evening he had no directions from any one how the old woman wished to dispose of her property, except as Davidson had told him ; that Mrs. Fox was in bed and did not get up or raise up on the pillows ; that he asked her if she knew him and she spoke loud and answered yes, and put outlier hand and shook hands-with him ; that he found her in a very weak condition ; that she signed the will and he held the pen and-she put her hand on the top of the pen as witness held it while she held the top of the pen ; that he did not regard her as very weak in mind and thought she comprehended everything; that she had been a woman of very strong mind and strong physically; that he did not know how long she had been confined to her bed and unable to move; that she did not say anything to him about the will she made the'day before, or anything that day abouther property, whetherit was real or personal; thathe considered her in a condition to tell where her property was and of what it consisted ; the witness further testified that she had wished him to keep her old papers for her; that she had notes and a certificate; that she had handed them to him to keep in his safe as much as a year before, he thought along in December, 1890. On the redirect examination Mr. Fowler testified that the will was drawn about eleven o’clock a. m., January 12, 1892 ; that he went and rapped at the door; that the little house stands back from the sidewalk about fifteen or twenty feet; that the conversation he had with Mrs. Donlon was with her standing in front of the door, which was shut; that Mr. Woo’d and Mr. Davidson were not with'him; that after he had the conversation with Mrs. Donlon as detailed by him, and some of it by her, he met John Wood coming across the street from his house. The witness further testified as follows: “ I met him near the junction of the sidewalks, and also met Mr. Davidson, and I stated to them what Mrs. Donlon had told me, that the old' lady was not able to see any one, that they said she had a will, and witness said if she had one that was enough, all that was necessary, and with that I left and came home. Mrs. Donlon stated, in response to my question as to the old woman, that she was not right and did not know any one and could not do anything; she said that a lawyer drew the will and that it was all" right; ” he told her that if she had one will that was sufficient; that he met Mr. Davidson and John Wood on the walk; that he had been acquainted with Bridget Fox for a great many years—she had come to him one time and another when she wanted advice and he had given it to her, and he had sent word once or twice to the old lady about her land, that he had seen it advertised for taxes, and that she ought to look after it; after that for another party he had looked in the surrogate's office for his own satisfaction, and saw there was no will of Martin Fox; that he went to the county clerk’s office for his own satisfaction and found that the land where the old lady lived was conveyed by Warren D. Shaw and wife to Martin and Bridget Fox, his wife, and on rny return home I sent word by Mr. Davidson to tell the old hidy that the land where she lived belonged to her; on the same day or the next day after looking this up, he thought in November, he told the old lady he had looked up and found at Mayville that the land where she lived belonged to her absolutely ; that it was conveyed to her husband and herself, and after his death she took his title absolutely. Witness testified: “ Said I, Mrs. Fox, take the land you have, mortgage it or sell it, and use it the best you can for your own support.” It was upon that occasion or subsequently, when she conveyed the lot, that he told her to use the avails, what she had, for her own enjoyment, and then leave it to her friends and relatives.

Witness further testified : “ The expression of the old lady to me was that all -she wanted was to 'carry her through; that a divil a one of them had ever darkened her doors ; I didn’t ask her who or what; I thought the old lady knew what, she was saying ; on the sale of the land subsequently made I think she handed me the papers she received, or some notes, and asked me to put them in my safe and keep them for her; also, what Mr. Davidson had, which I still hold." Witness further testified, on cross-examination by Mr. Sessions, that he. did not think, considering the age of Mrs. Fox, that in the sale to Mr. Wood she re-' served one-half the life use of tlmproperty—that according to the rule of probabilities it would affect the value much; and that the land had been sold several times for taxes, and that a party who came to him said that parties had been trying to sell him tax titles.

John Davidson, the other subscribing witness to the will dated January 12, 1892, testified that he had resided opposite to Mrs. Fox’s house for thirteen years, and had known her all that time; that he saw her make her mark to the will presented, dated January 12th, and was present when she answered, as Mr. Fowler asked her, to whom she desired her property to go, and she said “ Father Coyle,” and she acknowledged that to be her last will and testament, and he was present when it was read over by Mr. Fowler, and when she asked him to subscribe as a witness; that he subscribed his name as a subscribing witness at her request, and she acknowledged that to be her last will and testament; that the will appeared then as it did the day it was drawn ; and that he was present when Fowler asked her if he should take the will, and she said she wanted him to keep it; that he thought she was of sound mind at the time it was signed that she knew what she was doing and what was being done; that he should say that she was about eighty years old; that he went down after Mr. Fowler the morning of the day the will was drawn; went from his own house; that he had not been at Mrs. Fox’s house that morning, and that he did not know her condition and went along with Mr. Fowler to the house ; that he had not seen her that day at the time. He told Mr. Fowler that morning that the old lady wanted to will her property to Father Coyle; that she wanted him (witness) to come over to the house before she was taken so sick, and handed him a little money she had in a box, and said, “I want you to keep that,” and that he told a woman who was in the house to see what was in the box, and that he said to Mrs. Fox, “ What do you want to do with the money you have?” and she said, “ To Father Coyle, and her bed to Mrs. Callahan.” Witness testified that up to the day the will was made he had never any more conversation with her except at the house, while she was in bed, in the presence of Thomas Conway and Mrs. Don-Ion ; that he went to see the old lady just to see how she was, and that he was not called in to take care of her; that he and Conway went in together, and that he did not talk to the old lady then about what she would do with her property; that he did not see Mrs. Higgins there; that Mrs. Donlon was there all the time he was there; that he asked Mrs. Fox if she knew him and she said, “ Yes; ” that this was the day she died, between one and two in the afternoon; that sheknewhim, and she said, “How’sMrs. Davidson? ” and that he said she was getting better ;• that he asked her if she wanted to see Mr. Fowler, and she nodded three times that she did; that she could not speak loud, but so that he could hear her. The witness testified that there was nothing more said while he was in the room; that Mr. Conway was there, and that they had staid about ten minutes, and that witness had given all the conversation that had occurred while he was there ; that he had no other talk with any other person about the property. Witness further testified as follows: Father Coyle told me that he did not want anything to do with this property, and if he was administrator .he would give the property „to Honora, the .daughter; that he did not know that Father Coyle was at Mrs. Fox’s house on Sunday, January 10th, nor that he was there Monday, January, 11th, or that he was there Tuesday, January 12th; that he had not learned f.xom Father Coyle or the old lady that he was there the day the will was made.

The witness, on cross-examination, testified: That he had lived beside Mrs. Fox for thirteen years, and that he had bought a piece of land of her twelve years before, one common town lot, of which he could not state the width; that he gave her $600 for it, and that the money was then (at the time of testifying) in Mr. Fowler’s hands, $301.75; that he was present when it was paid; that he left the money with Mr. Fowler, and he had paid the balance of the $600 to the old lady when she wanted it; that Mrs. Fox had handed the money to witness and said she wanted hirp to keep it, and that he said that as Mr. Fowler had a safe, it would be better to give it to him; that the old lady came over and got a few dollars as she wanted it. Here Mr. Sessions, presenting a check to witness, dated December 12, 1880, asked witness' “ Did you give that check on the bank for $50 and interest? ” Answer, “ Yes, sir, that was about the time I bought the lot.” The witness testified that the money was not in the bank to pay the check; that the check had never gone to the bank, and that he had paid the money to her; that he had signed the check for her. The check was offered in evidence and read under objection by Mr. Fowler that it was immaterial and improper evidence, with exception to proponent, and the following is a copy of the check read in evidence:

“Jamestown, N. Y., Dec. 12, 1880.

“ Chautauqua County National Bank.

“Pay to order of Mrs. Fox......................or bearer

Fifty........................*.....................Dollars

and interest at six per cent, for value received.

“(Signed) John Davidson.”

The witness further testified that Mrs. Fox owned the lot she lived on and that there was a house on it; that she sold it in November, 1890, to John Wood; that the lot was of the same width as his lot; that she lived on that lot in a shanty twelve by sixteen feet, with two rooms in it, one a small bed-room; that she had no other real property besides that lot, and that lie did not know what Wood gave for it; that the money she received for it was in Mr. Fowler’s hands; that there were back taxes to be paid on the lot, and that Mr. Fowler had the money. On the redirect examination by Mr. Fowler witness testified that from the time he lived there the old lady had called upon him for what money she wanted for her living; that there was no one else to look after her and do for her; that he had purchased for her every year since he had bought the lot; that he had settled on his deal and looked over with her as to what was owing during that period, and that the money that Mr.'Fowler then had was the balance that was her due when they looked over the last time; that she had a bond and mortgage and had discharged that, and liad taken a note; that he never saw John Donlon there to help or assist the old lady but once, when Donlon brought some wood there; that John Donlon had moved the things out of the house after her death and had got the key to get the goods and had taken them; that Father Coyle told Mr. Conway to get the wood and things there; that the witness had seen Donlon taking the things away; that the first he knew of Mrs. Donlon’s being there to take care of the old lady was when she was sick; that Martin Fox had two sons and one daughter by his first wife and that Bridget Fox had no children of her own. '

Only the two above named witnesses, Messrs. Fowler and Davidson, were sworn on part of the proponent,'¿.nd their evidence appears above substantially as given ; the will was written by Mr. Fowler before seeing Mrs. Fox or consulting her about it in any way; all the authority he had in drawing the will was received from Davidson. It appears affirmatively that Davidson had no authority from Mrs. Fox or any one else to instruct Mr. Fowler to insert in the will as drawn the name of Father Coyle as executor, and there is no evidence in the case tending to show that Mrs. Fox ever gave authority to Davidson to instruct Mr. Fowler to insert in' the will as drawn by him the name of Father Coyle as sole legatee; he certainly had no such authority from Father Coyle, who told Davidson that he would have nothing to do with the property, and if he had he would give it to Honora, the daughter.

Such authority could not be fairly claimed from the conversation between Davidson and Mrs. Fox at her house before she was taken so sick, on the occasion in which she sent for him to come over there, when she handed him some little money she kept in a box and said to him, “ I want you to keep that,” and when he told a lady that was in the house to come and-see what was in the box, and Davidson further stated, “I said, what do you want to do with your money you have ? ” and she said, “To Father Coyle, and her bed to Mrs. Callahan.”

There was no evidence of the amount of money in the box. Mrs. Fox evidently intended to have Davidson pay that money to Father Coyle, and evidently Davidson so understood it, because no other money was mentioned, and if he understood differently why did lie not instruct Mr. Fowler to insert in the will “ the bed to Mrs. Callahan.”

The evidence of Davidson, given without objection, about having paid the check for fifty dollars dated December 12,1880, then held by the decedent, and also about his alleged settlement with her for $298.25 loaned to him by the decedent from the balance of $600 purchase price of the land she sold to him in 1880, would not be admissible in evidence against the estate on judicial settlement of the accounts of the executor or administrator thereof under § 829 of the Code of Civil Procedure.

It appeared that when Mr. Fowler went to the house of Mrs. Fox, on the forenoon of the day she died, with the will he had previously drawn as directed by Mr. Davidson, he was immédiately followed by John Wood,.holding a pen and ink in his hand, and who pui’chased one of the three lots of her in November, 1890, for $300, accompanied by Davidson and Thomas Conway ; that Mr. Fowler, after his talk with Margaret Donlon, when leaving, met the three above named persons at the fence in front of the house, where a short conversation was held between them, and all went away except Conway, who was a brother-in-law of Mrs. Fox, and who returned and went into the house and remained there until between three and four o’clock in the afternoon, going out and in but once or twice and without making his business known. Mrs. Fox, in the meantime, was lying on the bed apparently unconscious and could not take any nourishment, not even a teaspoonful, and she had been in that condition about nine hours previously and continued so until between three and four o’clock in the afternoon, when she called for a drink of water, and Conway, being in the adjoining room and hearing her call for water, went into the little bedroom and asked her if she knew him; that Mrs. Fox tried to talk and made some motion, and Conway kept asking her if she knew him; that after a while she said yes; that he went over across the street for Mr. Davidson, who came back with him; that they then asked Mrs. Fox if she knew them; that they kept at her until finally she talked to them, and then Conway went after Mr. Fowler, and. Davidson said nothing more to Bridget, but remained in the kitchen while Conway was gone ; that after awhile Conway returned with Mr. Fowler and they went into the bedroom. The evidence of the two subscribing witnesses to the alleged will as to what then occurred is fully stated above.

C. W. Oreal and Margaret Donlon, who were witnesses to the first will, and John Donlon, husband of Margaret Donlon, were the only persons who testified on the part of the contestant. Mary Higgins, who was also a witness to the first will, and who acted as a nurse of Mrs. Fox during her last sickness, was not called to testify. She was employed as nurse by the “ Helping Hand Society,” so called.

It appeared that Margaret Donlon was there for nine or ten days during Bridget’s sickness, doing the work in the house and assisting in the care of Mrs. Fox, and that she was requested to go there by Thomas Conway, who told her that he had heard that Bridget was very sick.

It appeared from the evidence on the part of the contestant that the decedent had in her possession at the time of her death, among her papers, aside from the above check for fifty dollars, fourteen tax receipts signed by tax collectors, dated at Jamestown, N. Y, from 1865 to 1880, both inclusive, amounting to forty-six dollars and fourteen cents, of which seven were receipted as paid by Martin Fox and seven by “Martin Fox’s heirs,” of whom Honora was one and his two sons in Ohio were the others.

It appeared in evidence that Bridget Fox purchased one of the three lots of Warren D. Shaw and wife on April 20, 1860, taking the deed in her own name and before her marriage to Martin Fox; that after her marriage she and her husband, on May 14, 1863, purchased the other two lots adjoining the other lot in partnership under an agreement between them that each should pay one-half the purchase price of $150.

That Martin Fox and his three children above named paid one half of the purchase price and Bridget Fox the other half, and that William Fox, the youngest brother of Honora, assisted in building the little house on the property, and that Honora assisted in paying for- these two lots and also in paying the taxes thereon up to about the time she had a sunstroke about the year 1871, which greatly injured her mind and body, when she was removed to the county hospital or poor-house at Dewittville, in said county, and remained there until 1891, during which year the insane persons in said hospital were removed to the state asylum in Buffalo, NY.

That upon such removal John Donlon applied to Hon. A. A. Van Dusen, county judge of Chautauqua county, at Mayville, for an order, which he obtained, for the removal of his cousin Honora from the hospital, which he did and took her to his own house upon his farm of forty-four acres in the town of Busti, about one mile from'Jamestown, where she has remained ever since under his care and support, she being then about forty-six years old.

It also appeared 'in evidence that Martin and Bridget Fox lived together very happily after their marriage in their little house on Warren street until his death in 1875, and that Honora lived with them and worked out by the week in Jamestown- until removed to the hospital, using a portion of her wages in paying taxes upon the property, and that John Donlon, who was a nephew of Martin Fox, resided one year with them, being about the year 1869. It appeared in evidence that after Bridget had sold the two lots to John Wood in 1890, and after Honora had been taken by John Donlon to his house in 1891, that he (John Donlon) called upon Bridget Fox to assist him in the support and care of Honora, and that .Bridget told him that she would not, but that she would let Idonora have every dollar she had at her death.

The evidence shows that very friendly relations existed for many years, preceding the death of Bridget Fox, between her and John and Margaret Donlon, and that they visited back and forth often ; Honora’s two brothers, Michael and William, moved to Ohio about thirty years ago and never returned, except that William came back to attend his father’s funeral and to remove his body to Ohio for burial; it appears quite evident that in the testimony given by Mr. Fowler about her friends and relatives having never darkened her doors, the old lady referred to. these two stepsons, William and Michael Fox, whom she had not seen for about twenty-eight years, except William, who came to attend his father’s funeral and to take his body away to Ohio; certainly she could not have referred to their sister Honora, towards whom she always had the most kindly feelings; neither could she have referred to her husband’s nephew and niece, John and Margaret Donlon, with whom she had always been on the most friendly terms, visiting each other often.

It should be borne in mind' that Mr. Fowler, who drafted the second will of the decedent, and was a witness to it, and who had acted for many years as her friend and adviser, and in whose integrity, learning and ability she justly had great confidence, and who had always known Bridget as a remarkably strong woman, both in body and mind, but who- had not seen her during her last and only severe illness, and had had no knowledge about her illness before going there on the morning of the 12th of January, 1892, except what he had learned from Margaret Donlon, John Davidson, Thomas Conway and John Wood; that, as he testifies, he went away from the house that morning not satisfied that the old lady was incompetent to make her will; that he drew the will that morning before going to see her from what others had told him ; that he saw her for only a few minutes at the time the will was signed in the afternoon ; that nothing was said by her at the time about her property or about having made a will twenty hours previously entirely different in its provisions from the one here offered for probate; that it would seem to appear that Mr. Fowler could not have had hardly sufficient opportunity to judge correctly her capacity to make a will.

The evidence on the part of the contestant shows, I think, that Mrs. Fox was in a far better condition physically and mentally when she made her first will than when, twenty hours later, she made her second one; she sent by Margaret Donlon, who was taking care of her at the time, to see Mr. Creal to come and draw her will; he was sent for because he lived on the second street from her residence and nearer than Mr. Fowler ; that he came, and the other witnesses were in the little bedroom, and when the will had been drawn she raised herself from the pillows and sat up straight with the pillows behind her and with no one to support her, and entered into conversation and stated that she wanted her will drawn in their presence, and in answer to the questions put to her by Mr. Creal, stated that she wanted to give her property to Honora Fox, who was a daughter of her deceased husband, Martin Fox, and that she wanted Margaret Donlon, who was a niece of her said deceased husband, to be the executrix thereof; that she wanted Mr. Creal, Margaret Donlon and Mary Higgins to be witnesses to her will; that after the will had been prepared and she was sitting up in bed she took the pen in her hand and wrote her name to it, Margaret Donlon guiding her hand while doing so, at her request".

Mr. Creal testified that Mrs. Fox appeared very bright in her mind at the time, he thought, for one suffering so much pain as she was. That he asked her where the pain was and she put her hand to her left side; that he thought she was of sound mind and memory and competent to make a will; that Mrs. Donlon gave her a cup of milk when she first sat up in bed before she signed the will; that she declared it to be her last will and testament in presence of witness and in presence of Margaret Donlon and Mary Higgins, and requested them to sign it in her presence and in the presence of each other; that when he first went into the room where Bridget Fox was, Mrs. Donlon was present, and Mrs. Donlon then said in presence of witness that Father Coyle had been up there and that she (Bridget) had made her peace with Grod, and that she had requested her last will and testament should be in favor of Honora; that after the will was signed by Mrs. Fox, Mrs. Donlon asked her if she would like to have Mr. Creal keep the will and she said Yes; then he (Mr. Crea!) took the will away with him and kept it until he delivered it to the surrogate. The witness further testified that Mrs. Fox at the time seemed to him to know every word that was said and ’ what was being done.

Margai’et Donlon, a witness to this alleged will and the executrix named therein, testified that she was the wife of John Donlon, of the age of forty years, had known Bridget Fox for twenty-three years, and that she had always lived in' the same place where she died, and was at her house often during the time she knew her ; that she lived near her and was well acquainted with her and had been to her house a good deal during that time; that she knew Martin Fox very well during five years until he died ; that the relations between Martin Fox and Bridget Fox were always pleasant; that she knew Honora Fox during the time she lived on Warren street; that she knew she lived with them and made it her home there until she went to the asylum ; that up to that time Honora Fox was a strong, healthy girl and worked out for people . in the city; that Martin and Bridget Fox were at witness’ house in Busti during the year he died, going on eighteen years ago; that witness scolded Martin for putting Nora in the asylum, and Mr. Fox told witness in his wife’s presence that he 'wanted witness to talce care of Nora, and'that after his death witness ivanted Nora to have what belonged to him; that Bridget was always a good wife to him, and after she was through with it he wanted all to go to Nora; Bridget said in reply that she was satisfied with that; Bridget used to come out and see witness and said that she was well satisfied'with that; that witness was the first person called when Bridget was taken sick; that Conway told her that she was very sick and that he would be glad to have her go over; that this was nine or ten days before she died ; that witness staid right along every day and nights between times, doing the best she could, and that Bridget was very glad to have her; that Mary Higgins was there as a nurse; that Father Coyle was there the Sunday night before Bridget died, being the Sunday night before the first will was drawn; and that he was in the bedroom with her alone a few minutes with the door shut; witness testified about Mr. Fowler, Davidson and Conway being there on Tuesday, January 12, in the morning; that Mr. Fowler asked witness how Bridget was; that she told him that she had been dying since 7 o’clock that morning; that during that day the old lady could not talk at all, could not take any nourishment, even a teaspoonful; she further testified that the old lady never spoke a word after Mr. Fowler and the others went away,; that she died at-half-past eleven o’clock that night, and she took no nourishment; that she had takén no nourishment after 7 o’clock on the morning of the day she died.

Three witnesses testified as to the age of Mrs. Fox at her death in 1892; the first, Mr. Fowler, that he thought she was then perhaps of about eighty years of age; the second witness, Mr. Davidson, testified that he could not tell her age; that she was about eighty, he supposed; the third witness, John Donlon, a creditable witness and a nephew of Martin Fox, testified that he heard Martin Fox say in 1870 that his wife, Bridget, was then of the age of seventy years, which would make her age, at her death in 1892, over ninety-one years.

I hold that the evidence of the last named witness clearly and legally establishes that the age of the decedent at her death to have been over ninety-one years. 1 Greenl; Ev. (Red. ed.) §§ 103, 104; Doe v. Griffin, 15 East, 293, and other cases cited under said §§ 103, 104 Greenl. Ev.

An important and controlling question arises in this case as to whether the alleged will of the decedent accords with her duties and obligations to her stepdaughter, Honora- Fox, and with her former and often declared intentions, while rational, to make Honora, at her death, the sole beneficiary of her bounty; the evidence in this case is all in one direction, in favor of the contestant, as are also the authorities in harmony therewith'and with good sense. Matter of McCarthy, 48 St. Rep. 315, Sup. Ct., 5th Dept; Matter of Raynor, 44 Id. 468, Sup. Ct., 5th Dept. The above two cases are very similar, in the facts stated, to this. Mattor of Coop, 24 St. Rep. 417; Matter of Budlong, 26 Id. 863.

The evidence shows that Bridget Fox was remarkable for her great vitality; that she was strong in both body and mind up to within ten days of her death; there is no evidence tending to show that she had ever been sick a day prior thereto, but that, like Holmes’ famous “One Hoss Shay,” she in the end went to pieces very suddenly.

The Rev. Richard Coyle did not appear personally at any time in the proceedings for probate before the surrogate.

Seven days after the death of the decedent he signed a petition for the probate of her alleged will, doubtless in good faith and under the advice of counsel.

I hold and decide that Bridget Fox at the time of signing said alleged will was not of sound and disposing mind; that her signature thereto was'procured by the undue influence of John Davidson and Thomas Conway, and not by any undue influence on part of Rev. Richard Coylej as alleged in the contestant’s answer, and I direct decree herein denying probate of such alleged will, with such reasonable costs to the contestant, including fees of stenographer, as may be allowed by the surrogate on notice of adjustment to the proponent, and also such reasonable costs to the proponent as may be allowed in the discretion of the surrogate upon like notice to contestant; such costs payable out of the estate. Probate denied.


author: Bartlett, J.

text:
    Henry L. Beakes, Resp’t, v. The Phœnix Insurance Company of Hartford, Conn., App’lt.

      (Court of Appeals,

      Filed October 30, 1894.)

    Insurance—Conditions—Lightning.
    The recovery, under the lightning clause in the standard policy, must be limited to the direct loss or damage caused by lightning.
    Appeal from judgment of the general term of the supreme court in the second.judicial department, entered upon an order, which affirmed a judgment in favor of the plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      William Van Amee, for app’lt; William F, O'Neill, for resp’t.
   Bartlett, J.

This is an appeal from a judgment of the general term of the second department, affirming' a judgment, and from an order denying a new trial in an action tried at the Orange •circuit, in which the jury rendered a verdict in favor of the plaintiff for the sum of eleven hundred dollars in an action upon a policy of insurance covering the plaintiff’s two barns and contents, located on his farm, about a mile from the city of Middletown.

The plaintiff claims that on Sunday, the 10th of August, 1890, during a severe thunder storm, his barns were struck by lightning, and by reason thereof were destroyed, with their contents.

The defense interposed is that the barns and contents were swept away and destroyed by, and solely in consequence of, a violent wind storm, tornado or cyclone, and were not struck by lightning.

Two facts are admitted in this case, that no one saw the demolition of the barns, and that there was no actual ignition, fire playing no part in the disaster.

The plaintiff seeks to recover under the lightning clause of the policy, which reads as follows, viz. :

“ Lightning.—it is understood and agreed that this policy shall cover any direct loss or damage caused by lightning (meaning thereby the commonly-accepted use of the term lightning, and in no case to include loss or damage by cyclone, tornado or wind storm), not exceeding the sum insured, nor the interest of the insured in the property, and subject in all other respects to the terms and conditions of this policy.”

The issue thus presented was very thoroughly tried, and resulted in a direct conflict of evidence; the witnesses for the plaintiff testified that there was abundant evidence that the buildings had been struck by lightning, and that the wind came almost immediately after the lightning stroke ; the witnesses for the defendant found no evidence of lightning. There was also a great conflict between the witnesses as to the force of the wind which followed the lightning; some of plaintiff’s witnesses said it was blowing very hard, while many of defendant’s witnesses described the force of the wind as being, very unusual and severe, doing great damage to buildings in the immediate neighborhood.

It seems to have been assumed by the learned trial judge in his charge to the jury that it might be fairly inferred from the evidence that, part of the damage wrought on this occasion was due to the wind. It becomes necessary to examine this charge, as the defendant and appellant insists that it contains legal error which must lead to a reversal of the judgment. Near the opening of his charge the t?’ial judge uses this language, viz.:

“It is the claim of the plaintiff that these buildings were destroyed by lightning, and, therefore, he claims that they come within the clause of the policy which does cover any direct loss, which does insure him against direct loss or damage caused by lightning. It is the contention of the defendant, on the other hand, that the destruction to the building was not caused by lightning, but was caused by a violent wind storm, by some denominated as a cyclone, and by some called a tornado, but the contention is that the destruction was caused by. the wind and not by the lightning. If it was caused by the wind then the loss is not .covered by this policy, as you see. But if it was caused by the lightning then it is.”

To this language no exception could be properly taken, but later in his charge the trial judge stated to the jury as follows, viz.:

“If you find that this building was destroyed by lightning, then you will have to find what it was that wrought the damage, because there was there, as you will probably have no difficulty in finding, the presence of a high wind, and if this destruction, if part of this destruction, was wrought by the wind, then it is not destruction or damage by lightning. But there is another rule. You will have, in the consideration of this question of damages, to settle this question of fact, you are to say whether the lightning was the primary cause, what we call the first cause, the approximate cause, as we call it in law. If you find it was then you may attribute the loss to that, although you may find that by reason of the presence of the wind more destruction was wrought. That is to say, that the roof was blown over into the field, that the destruction was more complete. If you should find that these buildings were struck by lightning, that they were weakened and in-a reeling condition or rent apart by lightning ánd moved from the foundation, then, with the presence of wind and with that opening in the building made by the" lightning, that they were prostrated by the wind, if you find that the lightning was the primary cause of the destruction, then you may allow him the whole damage, but you will have to be careful about that and discriminate. I think you understand it. If that was the primary cause, and although the wind made more damage, you may allow him the whole of his loss, as though it was caused by lightning.”

The defendant’s counsel excepted to the portion of the charge, to quote his own language, “in which your honor charges in substance that if the lightning was the primary cause of the loss, and the loss was accelerated or increased by wind, the whole damage can be recovered.” He also requested the court to charge that if lightning struck the buildings and did some damage, and the wind came on and did the main damage, the jury must strictly confine their verdict to the actual damage done by the lightning and cannot give a verdict for the damage done by the wind.” This request was refused and we think it was error.

The lightning, clause of the policy, already quoted, is very carefully worded and‘limits the liability of the company to the direct loss caused by lightning, and expressly excludes damage by cyclone, tornado or wind storm.

It must be admitted that the duty of a jury in cases of this character is difficult to perform. If a building is shattered by a lightning stroke, but not prostrated, and a moment later a high wind completes the work of destruction, it is not an easy task for counsel to prove the plaintiff’s case, or for the jury to determine the amount of recovery, and apportion the loss between lightning and wind. Courts are required, however, to enforce contracts as drawn by the parties, and under this lightning clause in the standard policy, juries must be required to limit the recovery of plaintiffs to the direct loss or damage caused by lightning.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to abide the event.

All concur. Judgment accordingly.

       Reversing 54 St. Rep. 290.


text:
    The People ex rel. John F. Mitchell, Resp’t, v. James J. Martin et al., as Commissioners, etc., App’lts.

      (Court of Appeals,

      Filed October 30, 1894.)

    1. Municipal corporation—Police—Removal.
    Under tlie provisions of the New York Consolidation Act, the absence, that will deprive a member of the police force of his place, must be voluntary and intentional.
    2. Same.
    Where the absence was not his conscious act but the result of temporary rental aberration, a dismissal is error.
    Appeal from order of. the general term of the supreme court in the first judicial department, which reversed a determination by defendants as commissioners of police of the city of New York dismissing the relator from the police force and directing his reinstatement.

      David J. Dean, for app’lts; Edmund Louis Mooney, for resp’t.

       Affirming 61 St. Rep. 280.

   Bartlett, J.

The police commissioners dismissed the relator from the police force of the city of New York; the general term of the supreme court reversed that decision upon the law and facts and ordered the reinstatement of the relator. From that order the commissioners appeal to this court.

There were two charges made against the relator, viz.: First, absence without leave; second, failure to appear against a prisoner. Both charges rest upon the same state of facts. The relator admitted his absence, but sought to justify it on the ground it was not his conscious act, but the result of temporary mental aberration which led. him to absent himself from his family and the city of New York fora period of about eight days. The reversal of the determination of the commissioners by the general term being upon the facts as well as the law, and resting as it does upon abundant evidence, it remains for us to decide whether, as matter of law, the defense established was a good answer to the charges upon which the relator was tried.

The contention of the appellants in this court relates solely to the force and effect of § 273 of the Consolidation Act, which provides as follows: Absence, without, leave, of any member of the police force, for five consecutive days, shall be deemed and held to be a resignation, and the member so absent shall, at the expiration of said period, cease to be a member of the police force, and be dismissed therefrom without notice.”

The "appellants insist that this statute is to be construed according to its literal reading, and that absence without leave for any cause, however justifiable and beyond control, which continues for five consecutive days, justifies the commissioners in dismissing the absentee without notice, and there is no possible defense that can be interposed except where the absence is compelled by the unjustifiable act of the authorities to whom the relator owes obedience. This court, in the ease of People ex rel. Nugent v. Police Com’rs, 114 N. Y. 245; 23 St. Rep. 230, held that his absence was in obedience to the command of the law, and not, therefore, within the intendment of the statute. The appellants seek to distinguish the Nugent Case from the one at bar by the fact that Nugent’s absence was due to the unjustifiable act of his superior officers.

We fail to apprehend the soundness of any such distinction. The statute under consideration, when reasonably construed, will lead to no such result as to deprive an honorable police officer of his place on the force by reason of absence arising from the act of , God. The absence that will deprive the officer of his place must be voluntary and intentional. It is such an act alone that can be deemed a resignation and justify the commissioners in acting without notice to the relator.

. It is urged in support of the strict and literal construction of this statute that the police force of the city of New York is in many respects like a military organizatiori, and the legislature has evinced the determination to maintain its efficiency by compelling the dismissal of absentees in order that their place may be filled and the efficiency of the force maintained. It is doubtless true that the legislature intended to make this statute one of unusual strictness and severity as conserving the discipline of the police force, and it is the duty of the courts to see that it is rigidly enforced. It does not follow, however, that when absence under this statute is caused by the act of God, that its penalties are to be visited upon the absentee; such a construction would not only do violence to the natural sense of justice, but would be contrary to a long line of authorities. Many of the cases, are cited and commented on in the Nugent Case, 114 N. Y. 248, 249, 250; 23 St. Rep. 230. After so citing them the court goes on to say: “ The cases referred to establish the principle that, in matters of contract, a party may be relieved from the consequences of the obligation to perform when performance is prevented by the act of God, or the exercise of a superior power residing within the sovereignty of the state. The same principle has been held to relieve a party from the obligation imposed by the statute.”

It was further urged in support of the appellant’s contention that if such an absence as the relator’s is not ground for dismissal, and his attácks continue, he must be permitted to remain on the force to its great detriment. The answer to this contention is found in § 250 of the Consolidation Act, which provides as follows * * * “ that any member of the police force who is now, or who may hereafter become, insane or of unsound mind so as to be .unable or unfit to perform full police service or duty, may be removed and dismissed from the police force by resolution of the board of police.” If mere temporary aberration gives place to a more serious form of mental malady, so that a member of the police force is unable or unfit to perform full police service or duty, then the statute provides an abundant and summary remedy for dismissal.

The order appealed from should be affirmed, with costs.

■ All concur. Order affirmed.


author: Gray, J.

text:
    New York, New Haven and Hartford Railroad Company, Resp’t, v. Henry Welsh et al., App'lts.

      (Court of Appeals,

      Filed October 30, 1894.)

    Railroads—-Foreign—Condemnation proceedings.
    The legislature has the power to authorize a foreign railroad corporation, lawfully operating its road within this state, to acquire by condemnation, additional real estate required for railroad purposes.
    Appeal from order of the general term of the supreme court in the second judicial department, which affirmed an order of special term denying a motion by defendant to dismiss the petition of the plaintiff for the condemnation of certain lands belonging to defendants for railroad purposes.

      Martin J. Keogh, for app’lts; Page & Taft, for resp’t
   Gray, J.

This proceeding was instituted by the New York, New Haven and Hartford Eailroad Company, a corporation organized under the laws of the state of Connecticut, to condemn, for railroad purposes, certain lands of the defendants, in the village of New Eochelle. It was opposed by the defendants upon various grounds; but the only one we deem it necessary to discuss is that the plaintiff, as a foreign porporation, had. received its only powers through a special act of the legislature of this state (chapter 195 of the Haws of 1846) and that they were long since exhausted. The argument is made on the proposition that, as a foreign corporation, it could acquire no right to condemn lands in this state, unless such right were expressly conferred by statute; and that it cannot avail itself of the powers given to corporations of this state by General Railway Acts. By the special act of 1846, the petitioning company (then the New York and New Haven Railr.oad Company) were given “ permission and authority * * * to continue and extend their railroad from the dividing lines of the states of New York and Connecticut, by such route as shall be established by said company, through the county of Westchester, to the New York and Harlem Railroad Company’s line of road, etc.,'etc.” Provision was made for the location of its route, in such manner as should be approved by three commissioners, to be appointed by the governor. Power was given to purchase and hold such real estate, as might be necessary and convenient in accomplishing the objects of the act. It was authorized to construct a railroad, with one or more tracks, on the course designated by its directors and all essential powers were conferred to enable it to construct, maintain and to initiate its operation within this state.

It must, of course, be conceded that the provisions of the special act would be ineffectual to authorize the condemnation of lands, not required for the precise purposes of the act and to carry it into effect, in the continuation of the petitioner’s road between the points named in this state, ,and that they gave no power to acquire lands by condemnation proceedings after the railroad was constructed, as therein intended and provided for. At that time, and at all times prior to the adoption of the Constitution of 1846, railroad corporations were created by and derived their powers from special laws. Subsequently, pursuant to the authority with which the legislative body was invested by the Constitution adopted by the people in 1846, general railroad laws-were enacted; with the object of placing the railroad companies within the state upon a footing of equality, as to their privileges and powers and as to their duties and liabilities. The general act of 1850 (chap. 140 Session Laws 1850) endowed “ all existing railroad corporations within this state ” with all the powers and privileges and subjected them to all the duties and liabilities and provisions contained in the act; so far as they should be applicable to their charter. By that act authority was conferred upon railroads, organized under its provisions, to condemn lands for the construction of their roads; but that authority was broadened by subsequent legislation, so as to provide with respect to all existing corporations for the case where_additional land might be required, after the construction of the railroad and for the purpose of operating it. Then, in 1892, (chap. 565 Session Laws), was placed upon our statute books the present General Railroad Law; which, in its fourth section, gave power to “ every railroad corporation ” to acquire by condemnation such real estate as may be necessary for the construction, maintenance, or accommodation of its railroad. By the seventh section, “ all real .property, required by any railroad corporation, shall be deemed to be required for a public use; ” and the right is given to it to acquire title to the real estate required, by condemnation, “ where it shall require any further rights to lands, or the use of lands for switches, turnouts, etc., etc.” It seems very clear to us that under the law as it stood before the present general railroad act, as well as under it, the petitioner was included in the general gift of authority to acquire additional real estate; wffiere, as is the case here, it was needed for its proper operation and to accommodate the road to the growth of its business and to meet the public demands of travel and traffic. The expressions “ all existing corporations ” in prior legislation and “ any railroad corporation ” in the present general law must be taken in their comprehensive sense; unless the legislature is inhibited by the fundamental law of the state from delegating to other than domestic corporations the power to exercise the right of eminent domain. An argument is based upon the supposed effect of the provisions of the general railroad law, as it was, or as it is, upon the charters of corporations, and upon the supposed conflict with the special act of 1846. We cannot find any such difficulty in bringing the foreign corporation, authorized to operate its road within this state, under the directions and restraints of this law. With respect to whatever rights it acquired, through the permission and authority given by the special act of 1846 to maintain and operate its road here, they were, necessarily, as much subject to subsequent legislation in their regulation, as were those acquired by the corporations of this state. _ There should, and can, be no question but that, except where’ the provisions of their charters come into material conflict, corporations, without discrimination as to their origin, lawfully exercising their franchises within this state, were dealt with in the general railroad law and brought under a uniform system of legal rules and procedure, in the conduct of their affairs and in the operation of their roads. But the question here is whether the legislature of the state could completely authorize foreign railroad corporations, as well as those organized under our laws, to acquire additional lands by condemnation. If it could, it must be deemed to have done so by this general law. There is nothing in the constitution of the state, which limits the legislature in the exercise of the right of eminent domain. Its dominion is as broad as the confines of the state and it may appropriate any part of the property within the state ; subject only to the conditions that the appropriation shall be for a necessary public use and that reasonable compensation shall be made. There is no restraint upon its selection of a corporation created by the laws of another state, as an instrument to carry the appropriation to the public use into effect. Matter of Townsend, 39 N. Y. at p. 175. In the present case, the petitioner, under the special act of 1846, was authorized to carry on a part of its chartered business and to operate a portion of its road in this state. Pro tanto, it is settled here under the sanction of our laws and, to the extent of its existence and operation here, in the contemplation of those laws, it is, pro hac vice, a state corporation. Matter of Townsend, supra. The public interests were deemed to be promoted by permitting it to come within our borders and the:*e to conduct its chartered business. That permission was an act which recognized its existence as a corporation in this state. Existing here as a corporation, the act, under which it exists, has neither exempted it from such general duties as apply to corporations generally within this state, nor precluded it from enjoying those general privileges which they enjoy, and which the public interests, in connection with the operation o£ a railroad, require that these quasi public agencies should possess. Those interests demand that the foreign corporation, operating its road here for their benefit, should have the same powers, as corporations organized here have, to acquire additional lands for the adequate transaction of the corporate business.

To hold otherwise would be, in our judgment,-illogical and without sufficient’warrant in the law. It is easy to show, from the reading of the various sections of the present general railroad .law, that the intention of the legislature was to include every railroad corporation actually within the state, without discrimination. This the respondent’s counsel has well pointed out in his brief. As one of the corporations referred to in the general railroad law, those provisions of the Code of Civil Procedure, which constitute the whole law of procedure upon the subject of condemnation, must govern in the procedings to acquire the lands required by the company. The procedure of, the special act of 1846 was limited to the precise accomplishment of the purpose of the act. With the construction of theroadand its completion for operation, the provisions as to procedure ceased and became unavailable for the future acquisition of additional real estate. The power conferred by the General Railroad .Law could only be exercised in accordance with the law of procedure, as enacted by the legislature to govern in all cases of the condemnation of real property for public use. Section 3359, Code Civ. Pro.

The order appealed from should be affirmed, with costs.

All concur. Order affirmed.


author: Andrews, Ch. J.

text:
    Thomas Butler, Resp’t, v. The Manhattan Railway Company, App’lt.

      (Court of Appeals,

      Filed October 30, 1894.)

    1. Damases—Negligence.
    Damages, which are neither the probable result of the wrong nor capable of proof, cannot be awarded by the jury.
    2. Same.
    Including in the verdict “any damages, arising from the injury and resulting in depriving the plaintiff of prospective offspring,” is error.
    3. Evidence—Res gest.®.
    In an action for injury to the wife of plaintiff caused by closing the platform gate, her testimony as to an insulting remark made by the guard in response to her exclamation of pain, is improper.
    4. Same.
    To make what was said by a third party competent as part of the res gestes, it must be part of the principal fact, and so part of the act itself.

      Appeal from judgment of the general term of the superior court of the city of New York, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      Edward B. Thomas, for app’lt; Gilbert D. Lamb, for resp’t.

      Reversing 53 St. Rep. 664.

   Andrews, Ch. J.

The evidence supports the claim that through the negligence, of the guard in closing the gate to the platform of one of the defendant’s cars, before the plaintiff’s wife, who was seeking to enter the car, had got upon the platform, she was seriously injured, and that as one of the consequences of the injury she had a miscarriage a few days thereafter. Her pregnancy had then existed a few weeks. The court permitted the jury to consider and to include in the verdict “ any damages arising from the injury and resulting in depriving the plaintiff of prospective offspring.” The charge on this point was expanded and repeated by the judge. The defendant excepted to this ruling. We think the exception was well taken, construing the charge most favorably to the plaintiff, that thé court intended to confine the jury to a consideration of damage to the plaintiff from the loss of the chance of offspring involved in the particular miscarriage proved.

The action was for the loss of service of the wife. The term service in actions of this character includes any pecuniary injury suffered by the husband from having been deprived of the aid, comfort and society of his wife, or which reasonably may be expected to result in the future, including charges and expenses incurred, or which he may be put to in consequence of the wrong. Cooley on Torts, p. 266 (226). The wife has her own action for her physical injury, and for the pain and suffering to which she has been or will be subjected. The husband’s action is for the consequences affecting his estate and for depriving him of the aid, society and companionship of his wife, which, except for the wrong, he might reasonably expect to enjoy. It is doubtless true, that the raising of children is one of the objects of marriage. The husband may and usually does contemplate the birth of children as one of the important advantages of the marital relation. At common law and independently of statutory enactments, the death of a person caused by the negligence of another, gave no right of action for damages ■ to any person, however closely connected with the deceased. But recent statutes, changing the rule of the common law, recognize the ties of 6kindred, the mutual dependence of parents and children, hus- ’ band and wife, and of persons standing in other degrees of relationship, the reasonable expectations that pecuniary aid or assistance, even outside of legal obligations, will be extended by relatives to each other in case of necessity, and upon this basis have given a statutory action for the benefit of the widow and next of kin of a deceased person, whose death was caused by the wrongful act, neglect or default of another, against the wrong-doer, to recover the pecuniary damages, not exceeding a specified amount, resulting from such death, to the persons for whose benefit the action is given. Chap. 450, Laws of 1847; chap. 256, Laws of 1849. Under these statutes actions are allowed to be maintained for the death of infant children for the benefit of parents, and recoveries have been sustained, the basis of damage being the supposed pecuniary value to the parents of the life of the infant. Etherington v. P. P., etc., R. R. Co., 88 N. Y. 641; Birkett v. Knickerbocker Ice Co., 110 id. 504; 18 St. Rep. 130; Houghkirk v. D. & H. C. Co., 92 N. Y. 219. The difficulty of finding any safe basis upon which to estimate the pecuniary damages in such cases, has been frequently adverted to by the courts. Whether the infant would have lived to an age capable of rendering service, and whether the continued life would be a pecuniary benefit or burden, and the 'numerous contingencies which may affect the value of the life make the ascertainment of such value by a jury, in a great degree, a matter of speculation and conjecture. But where the inquiry relates to the value of the life* of a child cut off in infancy, there are some material facts capable of proof, which may be placed before the jury and which afford some aid in estimating the pecuniary loss suffered by parents or other relatives. The age and sex of the” infant may be proved, its mental and physical condition, its bodily strength, and generally whether there was the apparent promise of a continued or useful life, or the contrary. The speculation which, in the present case, the jury were permitted to make had not even these safeguards, slight as they are. They were allowed to estimate the pecuniary interest which a husband had in the chance that an embryo, not yet quickened into life, would become a living child. The sex could not be known, and if born alive, the infant might have been destitute -of some faculty, or so physically infirm as to have made it a helpless charge. There are no elements whatever upon which a jury could base any conclusion that a pecuniary injury had been suffered by the plaintiff from the loss of the unborn child, and this inquiry should have been excluded from the consideration of the jury as too remote and speculative to form an element in the recovery. Where a wrong had been done from which pecuniary injury has resulted, or where injury is the natural or probable result of a wrong, the injured party is not remediless, although the extent of the injury is not capable of precise proof. The jury in such a case may fix the damages within reasonable limits, as best they may. Actions for defamation or involving recovery for pain or suffering are examples. But where damages claimed are neither the probable result of the wrong nor capable of proof, they cannot be awarded by the jury. It is not in the interest of justice to extend the field of speculation in jury trials beyond its present limits, and to sustain the ruling in this case would go beyond what has been •-hitherto sanctioned by the courts.

We think there was error also in one of the rulings upon the admission of evidence. The plaintiff’s wife testified to the closing of the gate and the blow received, and stated that at the time the guard was looking in the opposite direction; that imrnediately after the blow she made an exclamation of pain. The plaintiff’s counsel then asked the witness “ what the guard said in reply to her exclamation of pain.” The question was objected to by the counsel for the defendant as incompetent and hearsay, whereupon the plaintiff’s counsel said: ‘‘I intend to prove that the brakeman in charge of the brakes at the moment of the blow did not treat her (the plaintiff’s wife) with respect, but, on the contrary, insulted her.” The trial judge, after warning the plaintiff’s counsel, finally allowed the question to be put, and the witness answered: He said, I can .go to hell. Shut up.” The defendant’s counsel excepted to the evidence. The only claim made in support of the rqling of the court is that the remark of the brakeman was part of the res gestee. We think the ruling cannot be supported on this ground. The only circumstances upon which it can be claimed to have been part of the res gestae was its connection in point of time with the transaction under investigation, viz., the alleged injury from the closing of the gate. While proximity in point of time with the act causing the injury is in every case of this kind essential to make what was said by a third person, competent evidence against another as part of the res gestee, that alone is insufficient, unless what was said may be considered part of the principal fact, and so a part of the act itself. But as in this case the act was complete before the remark of the brakeman was made, although closely connected with it in point of time, and was not one naturally accompanying the act, or calculated to unfold its character or quality, it was not admissible as res gestee. It was as independent of the principal fact, and as incompetent as evidence as though the act and the remark had been made further separated in point of time. Res gestee in a case like this implies substantial coincidence in time, but if declarations of third persons are not in their nature a part of the fact, they are not admissible in evidence, however closely related in point of time. See Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274, and cases cited. The remark of the brakeman was brutal and for that reason was calculated to prejudice the jury, but it had nothing to do with the question at issue, viz., whether the plaintiff’s wife sustained an injury through the defendant’s negligence, and having been admitted against the protest, of the defendant’s counsel, its admission was reversible error.

Upon both grounds stated, the judgment should be reversed and a new trial granted.

All concur, except Barlett, J., not voting.

Judgment reversed.