text:
    William J. Logan et al., Resp’ts, v. The Berkshire Apartment Association, App’lt.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

      1. Contract—Pleading and proof.
    In an action upon a contract the plaintiffs may, upon the trial, prover the contract fuller in detail than they have alleged it in the complaint.
    2. Same—Satisfactory performance—Charge.
    The contract provided that the work should be done to the defendant’s entire satisfaction. The chattel produced thereby was retained and used by the defendant for about two years. In an action upon the contract, Meld, that it was not error for the court to charge that if the contract was-substantially performed the defendant was bound to pay.
    Appeal by defendant from judgment entered on verdict for plaintiffs.

      Lyon & Smith, for resp’ts; Stickney, Spencer & Ordway, for app’lt.
   Van Wyck, J.

The complaint alleges that plaintiffs agreed to make a hot-water pressure tank of certain dimensions for and deliver the same to defendant on foundation in cellar; that the same was so made and delivered; that an alteration was required by defendant, which plaintiffs made, and that defendant retained and still has possession and use of the same, but refuses to pay therefor, although payment has been demanded of him. The answer contained only a general denial. The plaintiffs, at the trial, proved the contract fuller in detail than they had alleged it in the complaint, and this they had the right to do. The contract_ provided that the work was to be done “ to defendant’s entire satisfaction.”' Several of appellant’s objections are founded upon what he contends was error for the court to charge the jury, “ that plaintiffs, were bound to furnish this work in such a manner that it complied substantially with the contract, and if you find that the contract was substantially performed, the defendant is bound to pay.”' This was not error against the defendant. Duplex Safety Boiler Co. v. Garden, 101 N.Y., 387; 1 St. Rep., 51. The contract was simply torn ake for and deliver to defendant a chattel, which was done-September, 1890, and defendant had ever since retained and was still using it, for the purpose for which it was made,- in May, 1892, the-time of trial. Mr. Moran, the defendant’s superintendent, who-made the contract, and concededly had full authority to act for defendant, testifies as follows: “This tank is in our house now, and we are still using it. This tank was put upon theioundation in this way, and with the exception that we lowered the foundation a little, it is now pretty near as it was delivered tans in the first place, with the man-hole still up.”

The contract provided that this man-hole should be pn the side, whereas it was made on the top of the tank, but plaintiffs-testified that this mistake was easily remedied with defendant’s, consent, and without altering the tank, by lowering the foundation, which would lower the tank so as to leave sufficient space-between the ceiling of the cellar and the top of the tank to permit of a man entering it through this man-hole, and Morare, says that the foundation was so lowered. It is true that it was-testified that defendant had been necessarily compelled to have* some new flanges attached, by another machinist, to the tank,, and it is equally true that plaintiffs testified that the flanges: which were attached by them were perfect and complete, and hence that what defendant had caused to be done in this regard was entirely unnecessary. Bemembering that defendant, had not counterclaimed for the costs of these extra flanges,, would it not seem that plaintiffs were entitled to a direction, in their favor upon Mr. Moran’s evidence? However, the court, refused to so charge, as requested by plaintiffs at folio 163, and notwithstanding the acceptance, retention and use of the chattel by defendant for nearly two years, the court was indulgent to-defendant, and charged that before the jury could find for plaintiffs, they must decide from all of the evidence that plaintiffs had substantially performed their contract The defendant’s complaint in reference to this charge is of no avail, and the verdict of a jury which decrees payment for a tank which was retained and used for nearly two years after its delivery, must be sustained, unless some error of law was committed. The defendant’s exceptions do not seem substantial in the view which has been taken of the pleadings and proof, and the judgment is affirmed, with costs.

McCarthy, J., concurs.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    The People, Resp’ts, v. Moses Elfenbein, App’lt.

      (Supreme Court, General Term,, Fifth Department,

      Filed October 21, 1892.

    Bottles—Labels.
    The words “ or otherwise produced upon such bottles,” as used in chap; 377, Laws 1887, as amended by chap. 181, Laws 1888, relate to the same means of engraving upon the bottles, etc., as the other preceding words indicate, such as etching, blowing or other like means by which an inerasable impression is produced, and do not cover a case of printed or lithographed labels pasted upon the bottles.
    Appeal by the defendant, Moses Elfenbein, from a judgment, of the court of sessions of Erie county, entered May 25, 1892, affirming a judgment of his conviction under chap. 377 of the-Laws of 1887, as amended by chap. 181 of Laws of 1888, entitled' “ An act to protect the owners of bottles, boxes, syphons and kegs-used in the sale of soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weis beer, beer, white beer, or other beverages.”

      Emory P. Close, for app’lt; Tracy C. Becker, for resp’ts.
   Macomber, J.

The appellant was convicted before the police justice of the city of Buffalo, on the 9th day of April, 1892, for violation of the above mentioned act. This conviction was affirmed on appeal to the court of sessions, and from the judgment of the last named court this appeal is taken.

There was found in the defendant’s possession a bottle, like a ■quart bottle often used for apollinaris water, and it was claimed that the same was a violation of the rights of one Anthony Young, who was engaged in the manufacture, bottling and selling of mineral waters. The name of Anthony Young was ■upon a label which had been lithographed and pasted on the bottle with common paste. There was no stamp or cut of the mame made into the glass itself. The only question, therefore,. ,in this case is, whether or not the possession and use- of bottles ■of this kind, with a printed or lithographed label pasted upon -them 'containing the name of the original owner, is a violation of ithis statute.

The first section of the statute is as follows: “ Sec. 1. Any •and all persons and corporations engaged in manufacturing, bottling or selling soda waters, mineral or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, ■weis beer, white beer, or other beverages, in bottles, syphons or tkegs, with his, her or its name or names or other marks or devices Branded, stamped, engraved, etched, blown, impressed, or otherwise produced upon such bottles, syphons or kegs or the boxes •used by him, her or it or them, may file in the office of the clerk ■of the county in which his, her or its or their principal place of "business is situated, and also in the office of the secretary of state, ■a description of the name or names; marks or dévices so used by him, her, it or them, respectively, and cause such description to be printed once in each week for three weeks successively in a newspaper published in the county in which said notice may have been filed as aforesaid, except that in the city and county of New York, and the city of Brooklyn, in the county of Kings, such publication shall be made for three weeks successively in two daily newspapers published in the cities of New York and Brooklyn respectively.’’

The second section renders it unlawful for any person to fill such bottles with any of the materials above mentioned, or with other beverages, or with medicines, compounds or mixtures so marked, or to deface, erase, obliterate, cover up or otherwise remove or conceal any such name, or sell, buy, give, take or otherwise dispose of the same without the written consent of, or unless the same shall have been purchased from, such person or persons.

By the 4th section of the act search warrants may be issued,' •and possession of the property taken which shall be found to be •held or used in violation of the act, and such property shall be turned over to the owner thereof.

This conviction cannot be upheld. The statute does not ■cover the case of printed or lithographed labels. A piece of paper thus pasted upon glass bottles is not in any sense branded, stamped, engraved, etched, blown or impressed upon the glass itself. But counsel for the People rest their argument almost exclusively upon the meaning of the following expression, “ or otherwise produced upon such bottles, syphons or kegs or boxes,’* etc. The meaning of the word “ produced,” it is argued, is any method of bringing forth to view any matter or thing.

This definition undoubtedly is correct so far as it goes, but it is-not applicable, it seems to us, when taken in connection with the-preceding words of the statute, branded, stamped, engraved,, etched, blown, impressed. All of these words are aptly chosen, to indicate a permanent and inerasable name or mark upon the; bottles, kegs or boxes in which the stuff named is contained. The: expression “or otherwise produced upon such bottles, syphons,, or kegs or boxes,” etc., is not satisfied, and the crime against the defendant made out, by proving that he pasted the printed or lithographed label upon the particular vessel mentioned. In this instance Young’s name was not “ produced upon ” the bottle. It had been produced elsewhere, and at other times, before the same-, were pasted upon the bottle. The expression “ or otherwise produced upon such bottles,” etc., relates to the same means of engraving upon the bottles, etc., as the other preceding words indicate, namely, something that is developed out of the surface of the bottle by engraving, etching or blowing, or other like means,, whereby an inerasable impression is produced.

If this view be correct, whatever may be the other questions: contained in the case, it follows that the conviction cannot be upheld, and that, consequently, the judgment appealed from should, be reversed.

Judgment óf the court of sessions of Brie county, affirming the judgment of the police court of the city of Buffalo, reversed, and the defendant discharged.

Dwight, P. J., and Lewis, J., concur.


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    Maximilian J. L. Towler et al., Resp’ts, v. Blanche Towler, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Deed—Reservation—Construction.
    One T. executed and delivered to his three children a deed which contained the following provision, “reserving to the party of the first part the power to devise, by last will and testament, an undivided one-third part of said premises unto any hereafter taken wife of him, the party of the first part, for and during the term of her natural life, or, at his option, to-give and grant, by deed, to said hereafter taken wife, or to any person intrust for her, the same undivided one-third part of said premises for and during the term of her natural life.” After the date and delivery of this deed,_T intermarried with defendant, and thereafter died without having exercised the right reserved by him to convey, either by deed or will, to his wife, a life estate in one-third of the premises. Held, that the reservation was a mere reservation of a right which the grantor might or might not exercise, at his pleasure.
    Appeal by the defendant, Blanche Towler, from a judgment-entered in Ontario county, May 9, 1892, on the decision of the court at special term, in an action brought by the plaintiffs under § 1638 of the Code of Civil Procedure, to compel the determination of claims to real property.

      Arthur P. Rose, for app’lt; Charles A. Hawley, for resp’ts.
   Macomber, J.

John Towler, the father of the plaintiffs, Maximilian J. L. Towler, Agnes B. P. Morgan and Caroline L. Smith, did on the 20th day of June, 1881, execute and deliver to these his children, a deed of certain real estate in the village of Geneva, N.Y., containing the following habendum and reservation clauses : “ To have and to hold the above granted premises unto them, the parties of the second part, their heirs and assigns, as tenants in common and not as joint tenants, and subject only to the reservations thereinafter stated.”

“Reserving to the party of the first part an estate in said granted premises for and during the term of his natural life, so that the •estate hereby granted to the parties of the second part shall only wqst in possession upon the death of the party of the first part.

“And further reserving to the party of the first part the power to devise, by last will and testament, an undivided one-third part •of said premises unto any hereafter taken wife of him, the party ■of the first part, for and during the term of her natural life, or (at ¡his option) to give and gfant, by deed, to said hereafter taken ■wife, or to any person in trust for her, the same undivided one-third part of said premises for and during the term of her natural life, * * * and the said John Towler, • the above granted ■premises, in quiet and peaceable possession of the parties of the second part, their heirs and assigns, will warrant and forever defend, subject only to the reservations herein above expressed.”

After the date and delivery of this deed, and on the 6th day of August, 1881, the grantor, John Towler, intermarried with the defendant, Blanche Towler. He died on the 2d day of April, 1889, without having exercised the right reserved by him to convey, either by deed or will, to his subsequently taken wife a life estate in one-third of said premises.

The learned justice, in his decision, has held that the power reserved in this deed to devise or to convey to any aftertaken wife, or to some person in trust for such wife, an undivided one-third of the premises for life, was a special power in trust; and that the execution of such power was imperative upon the decedent, and that-the same, if valid, would be enforced in equity. But he further held that such limitation of a life estate might operate to suspend the power of alienation for a period longer than two lives in being at the time of the execution of the deed, and that, consequently, such a life estate to an aftertaken wife was void.

An ingenious and subtle argument covering much of the learning relating to trusts and trust powers has been addressed to us by the learned counsel for the appellant, designed to show that this reservation was a power in trust, and that it was also capable of being enforced in equity, and was not obnoxious to the criticism placed upon it by the learned trial justice in his decision and in his opinion.

But as we view this deed no complex question of the nature above outlined exists in the case. The deed is plain. The reservation was a mere reservation of a light which the grantor might or might not exercise, at his pleasure, to grant or devise to any wife which he might thereafter take, a life estate in one-third of the premises. We are unable to see that the language of this instrument conveys any other thought than a well-expressed intention on the part of the grantor to reserve to himself absolute control over that part of the estate, and that there is nowhere apparent any purpose on his part to obligate himself to carry out any trust power for the benefit of any person. We can see no distinction between tjiis reservation as expressed in the deed relating to what he might choose to bestow upon a wife subsequently married by him, and the reservation of a life estate in himself with the exclusion of the grantees from a possession of the premises until the grantor’s death. The word “ power,” used in this deed, manifestly was not technically used with a view to the provisions of our revised statutes relating to uses, trusts and powers. It was manifestly used in the sense of right, liberty or privilege.

.If this be correct, it follows that the judgment appealed from should be affirmed.

Judgment appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


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    Roxanna J. Sleeper, Resp’t, v. Sidney S. Sleeper, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Divorce—Limited—Suitable allowance to wipe—Code Civ. Pro., 8 1766.
    A judgment separating the parties as husband and wife, upon the ground of cruel and inhuman treatment by the former, directed that he pay the plaintiff the sum of fifteen hundred dollars for her support and maintenance, in three annual payments, and the judgment made a lien upon all the defendant’s real estate. The whole of defendant’s property, as found by the trial judge, does not exceed the sum of $4,500. Held, that such a judgment was not contemplated by § 1766, of the Code.
    Appeal by'the defendant, Sidney S. Sleeper, from a judgment entered in Erie county on the 16th day of April, 1890, upon the decision of the court at special term, separating the parties to this action, as husband and wife, upon the ground of cruel and inhuman treatment of the plaintiff by the defendant, and directing an absolute money recovery in favor of the-plaintiff , in the sum of $1,500, payable in three annual instalments, for the. support and maintenance of the plaintiff.

      Adelbert Moot, for app’lt; W. Thayer, for resp’t.
   Macomber, J.

At the time of the decision entered in this'case At special term, namely, the 13th day of April, 1889, the plaintiff was fifty-five and the defendant fifty-six years of age. They had inter-married on the 12th day of October, 1882, and had "lived and cohabited together as husband and wife until the year 1884,. when, through cruel and inhuman treatment inflicted by the defendant, the plaintiff was compelled to leave her home, and she-remained away until the fall of that year, when, through the persuasions of the defendant, she again began and continued to cohabit with him until the 20th day of February, 1888, when, through like ill-treatment, she was obliged to leave his bed and board; and the parties hereto have lived separate and apart since that time.

That the acts complained of by the plaintiff were perpetrated by the defendant, and that she was justified in leaving him, is abundantly established by the evidence. The conclusion of the trial court in that regard cannot, as it seems to us, be successfully disputed on this appeal.

A serious question, however, is raised touching the terms upon which the court has decreed the separation, in respect to the provisions made for maintenance and support of the wife. The whole of the property of the defendant, as is shown by the evidence. and found by the trial judge, does not exceed in value the sum of $4,500. The findings and judgment direct, that the defendant pay to the plaintiff the sum of fifteen hundred dollars for her support and maintenance in threé equal annual payments, the first to be made within one year from the date of the service of the copy of the judgment; and until such payment, the defendant was required to furnish to the plaintiff the sum of twenty dollars per month; but such monthly payments, if made, were to apply upon the first instalment of five hundred dollars. This judgment of fifteen hundred dollars is made a lien upon all of the defendant’s real estate.

It appears, therefore, that the decision and judgment have awarded to the plaintiff a money judgment against the defendant in a sum amounting to one-third of the defendant’s entire property.

Section 1762 of the Code of Civil Procedure, following the provisions of the Revised Statutes, authorizes an action for separation in the following cases: (1) For cruel and inhuman treatment of the plaintiff by the defendant. (2) Where such conduct on the part of the defendant towards the plaintiff is such as may render cohabitation unsafe and improper.

Section 1766 authorizes the court to compel the defendant to provide suitably for the education and maintenance of the children of the marriage and for the support of the plaintiff as justice requires, • having regard to the circumstances of the respective parties.

The parties to this action have no children; hence, it appears that the court has, as it were, partitioned the defendant’s property between him and his wife, giving to the latter one-third of the same. This statute, as we understand it, did not contemplate such a judgment. The plaintiff was entitled, having established her cause of action, to a separate maintenance and to a reasonable support therein, but by the very terms of the act the judgment should have special regard to the circumstances of the respective parties in fixing the amount of such allowance. No case has been cited to us, and we believe that none exists, which would warrant this particular form of judgment. Much; latitude is, by statute, necessarily given to the courts in determining what would be a reasonable support, having proper regard to the circumstances of the parties. No rigid and fixed rule can be safely enunciated in one case which would apply to all others. The cases of Miller v. Miller, 6 Johns. Ch., 91, and Burr v. Burr, 10 Paige, 37, which have never been overruled, but on the contrary have afforded an intelligent basis for many subsequent decisions, are, in principle, at variance with the contention made by the learned counsel for the respondent.

We are of the opinion, that, in this case, having regard to the circumstances of the parties, a suitable allowance to the plaintiff for her maintenance and support would be the sum of fifteen dollars a month from the time of the entry of the judgment herein, and that such payment should continue no longer than during the joint lives of both parties; and that the plaintiff should have a lien for such payments upon the real estate of the defendant.

Judgment appealed from modified as indicated in the opinion, and as modified affirmed, without costs of this appeal to either party. The judgment to be settled by the justice writing the opinion.

Dwight, P. J., and Lewis, J., concur.


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    Sarah C. D’Autremont et al., Ex’rs, Pl’ffs, v. The Fire Association of Philadelphia, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Insurance (Fire)—Negligence no defense to recovery on policy.
    In actions upon policies to recover damages occasioned by loss through fire, it is not a defense which the insurance company may avail itself of to show that the loss was caused by the carelessness or negligence of the insured, his agents or servants. The insurance company in order to establish such a defense must go farther, and show that the act was so grossly negligent as to indicate an intention to commit a fraud upon the rights of the insurer.
    3. Same—Destruction of his property by insane person.
    An insane person can form no fraudulent or wrongful design in the destruction of his own property so as to defeat a policy of insurance thereon.
    Controversy submitted without action pursuant to § 1279 of the Code of Civil Procedure.

      William Cogswell, for def’t; Richardson & Robins, for pl’ffs.
   Macomber, J.

Charles D'Autremont, the plaintiff’s testator, received from the defendant, which is a foreign corporation, on the 15th day of June, 1890, a policy of fire insurance against loss or damage to property of the insured to the amount of $2,000 on buildings and their contents owned by the insured, and located in Angelica, N. Y.; the sum of $800 thereof was upon the insured’s dwelling-house; $700 on a frame barn, apd the attachments thereto; $425 on farm produce, and $75 on a frame hog house and granary. While this policy was in force, the frame barn and attachments thereto were destroyed by fire, together with certain farm produce therein, and the adjacent hog house and granary were somewhat injured by fire. The total loss sustained by the insured was the sum of $1,017.

The submission contains certain facts in regard to a claim made by the defendant for diminution of the amount of damages, by reason of an agreement relating to a permission given by the defendant that the premises might be vacant. But inasmuch as no point is made on this subject .in the brief of the learned counsel for the defendant, I shall assume that the amount of damages, if the plaintiff is entitled to recover anything, is the sum stated -above.

After the policy had been issued by the defendant to plaintiff’s testator, and prior to the burning of the property insured, which was March 30, 1891, the insured became insane, and while in that .condition, and being so far mentally disordered as not to under•stamd that the act he was about to commit would cause the.destructiom of his property or of his own life, and while acting under the influence of some insane impulse, which he was wholly unable to resist, he set fire to these buildings and himself perished thereih.

The question, therefore, presented for our determination, is whether the personal representatives of the insured can recover upon this policy, when the loss was caused solely by the act of the insured himself.

It is well understood that a lunatic is not liable criminally for his unlawful acts, for the reason that he is incapable of forming a purpose or having an intent which is an essential element in the commission of crime under our laws. Penal Code, § 20. It is equally well established, on the other hand, that an insane person is responsible, civilly, for any tort committed by him where a wrongful intent is not an essential thing to be proved. Under this head comes the class of negligence cases where carelessness or ignorance are the foundations of the action. It has been decided in the courts of this state, that in such a case as that the plea of insanity is not effective. Krom v. Schoonmaker, 3 Barb., 649.

In actions upon policies, to recover damages occasioned by loss through fire, it is not a defense which the insurance company may avail itself of to show that the loss was caused by the carelessness, negligence or want of care of the insured, or any of his agents or servants. The insurance company, in order to establish such a defense, must go farther, and snow that the act was so grossly negligent as to indicate an intention to commit a fraud upon the rights of the insured. The simple fact of the existence of negligence in either the insured or his agents, however great the degree, provided it does not reach the point of a wrongful or fraudulent purpose, or a wanton disregard of . others, is not a defense to a policy of fire insurance. Gates v. M C. M. Ins. Co., 5 N. Y., 469.

I am unable to see that an insane person can form a fraudulent or wrongful design in the destruction of his own property so as to defeat a policy of insurance thereon, any more than I can see that he can form a criminal intent in the commission of crime.

The learned counsel for the defendant cites the case of Cross v. Kent, 32 Md., 581, where it was held, in an action against a party for setting fire to a barn, that evidence of his lunacy was not admissible in mitigation of compensatory damages. But, as it seems to me, that case falls within the general doctrine stated above, that •an insane person’s estate may be called upon to respond to his .acts which are simply tortious.

On the whole I think that the question submitted to us should be answered in favor of the plaintiff. Karow v. Cont. Ins. Co., 57 Wis., 56.

It follows that the plaintiff should recover the sum of $1,017 .and interest thereon from August 10,1891.

Judgment ordered for the plaintiff on the submission, with, costs.

Dwight, P. J., and Lewis, J., concur.


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    Michael Dunn, Resp’t, v. Amos Robins, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Landlord and tenant—Untenantable premises—Agreement to remain.
    Plaintiff rented a basement for a period of nearly three years and shortly thereafter the water from the stores overhead began leaking and so "continued, wetting his furniture and greatly incommoding him in his business as a restaurant keeper. On complaint to the landlord, he promised to rectify the matter, and to pay for any damages sustained by the tenant, if he would keep on with his occupation and not move out, as he had threatened to do on the ground that the premises were untenantable. The leak was not repaired and the tenant brought an action to recover for the damage sustained. Held, that there was a sufficient consideration for the agree ment'to pay damages, and the defendant was liable thereon.
    Appeal by the defendant, Amos Robins, from a judgment of the county court of Erie county, entered June 8, 1891, in favor of the plaintiff; and, also, from an order of that court dated June 21, 1891, denying his motion for a new trial.

      W. B. Simson, for app’lt; Emery & Sickmon, for resp’t.
   Macomber, J.

The plaintiff rented a certain basement of the premises of the defendant in Tonawanda, N. Y., July 25, 1887, for a period of two years and nine months, occupation to begin July 25th. During the time of this occupation, and before the termination of the lease, the tenant had been greatly annoyed and damaged somewhat by the leaking of water from the stores overhead, wetting his tables and beds, and greatly incommoding him in his business, which was that of a restaurant keeper. The plaintiff testified that the wetting happened as often as once a week or of tener, and at times it would be as frequent as three or four times a week. On complaint being made by the tenant to the landlord, a week or ten days after the tenancy began, the landlord promised, as the plaintiff testified, that he would rectify the matter, and would pay for any damages sustained by the tenant if he would keep on with his occupation and not move out, as he had threatened to do on the ground that the premises were untenantable. It is to recover the damages sustained by the plaintiff by reason of such continued wetting that this action is brought, and a recovery was had in the county court upon the contract under the version of it given by the plaintiff.

If the testimony of the plaintiff is deemed to be true, as the jury has said it is, we see no obstacle in the way of a recovery under this contract. It is true, as is argued by the learned counsel for the appellant, that the landlord is not liable to the tenant for damages caused by the carelessness of other tenants in upper portions of the buildings. But if it appeared, as a matter of fact, that the wetting of these basement rooms was continuous and was so great as to make the premises untenantable, there was afforded a sufficient consideration for the agreement made and the defendant is liable thereon. The legal rights of the tenant and the landlord, as determined by the lease alone, do not enter into this case, and it is not necessary to consider them, for the landlord, recognizing and admitting the untenantableness of the building, promised to pay the damages sustained by the tenant provided the latter continued in occupation, -which he did.

The judgment and order should be affirmed.

. Judgment and order of the county court of Brie county appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


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    Charles J. Herdt, Resp’t, v. The Rochester City & Brighton Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Railroad—ÍTeuligence—Defective tracks.
    Plaintiff, while riding on the step of a crowded car on defendant’s line, was struck and injured by a car which approached on the other track. It appeared that the inner rails of the two tracks were nearer to each other at this point than was safe for the passage of cars, and that they were depressed by reason of the sinking of the ground, of which fact plaintiff had no knowledge. Held, that defendant owed a duty to its passengers to keep its tracks in good order, and a failure to do so rendered it liable for the injuries inflicted in consequence thereof.
    3. Same—Evidence.
    In such case, plaintiff was asked on direct examination, “ Were you aware that there was any danger in riding upon that step ?” and answered : “ I was not. I had observed other people riding in that position at various ether times.” Held, that such evidence was competent.
    Appeal by the defendant, The Rochester City & Brighton Railroad Company, from a judgment of the supreme court, entered in the office of the clerk of Monroe county on the 9th day of May, 1892, on a verdict of a jury at the circuit, and also from an order of the same date denying its motion for a-new trial.

      Charles J. Bissell, for app’lt; Eugene Van Voorhis, for resp’t.
   Macomber, J.

This action, which was brought to recover for personal injuries received by the plaintiff in the collision of two-horse cars operated by the defendant upon adjacent tracks on Bast Main street in the city of Rochester, by which several passengers, on the east bound car were brushed off and hurt, resulted in a verdict for the plaintiff. The evidence returned on this appeal isj, in all material respects, the same as that in another case which has been before this court, growing out of the same accident.

Though this cause has been as elaborately argued as was the former one, we must adhere to our opinion heretofore expressed in the antecedent case of Gray v. The Rochester City & Brighton Railroad Co., 61 Hun, 212; S. C., 40 St. Rep., 715; 15 N. Y. Supp., 927. It is therefore unnecessary to re-assert or to elaborate the views heretofore expressed arising upon the principal question.

An additional ground for the reversal of this judgment is urged by the learned counsel for the defendant, for the reason that in this instance, even if not in the case of Gray, the plaintiff was guilty of carelessness which contributed to the production of the injuries which he received. But we do not perceive that there is any substantial difference in the two cases in this regard, though, as is shown in this case, the plaintiff was further in front, upon the outside of the rail or step of the car than was dray. But this circumstance does not, in any legal sense, charge the plaintiff with co-operative negligence. He was proceeding to a ball game, and though knowing that the car was well loaded, he hailed it for a ride, and thereupon it stopped and took him aboard in what, apparently, was the only space left for a passenger. It is not shown that either he, or any other passenger, from any previous knowledge or notice, was chargeable with the special and particular duty of avoiding a collision with the approaching car from the east. The plaintiff did not know of the existing fact that the inner rails of the two tracks were nearer to each other at this point than was safe for the passage of cars, nor did he know that they were depressed by reason of the sinking of the ground, so that the upper portions of the cars were tilted over towards each other at the point where he was injured. Yet these two things, both under the exclusive control of the defendant, produced the collision. Inasmuch, therefore, as the plaintiff appears to have occupied the space allotted to him in a reasonably prudent and careful manner, without any reason to apprehend this particular danger, we think the argument now addressed to us has really been disposed of in our previous decision in the Gray case.

But there is an exception taken to the testimony of the plaintiff upon which counsel relies, to some extent, for a reversal of the j udgment. Though the same evidence was given in the case of Gray, yet the exception thereto was not by us deemed of sufficient moment to animadvert upon; but inasmuch as it has been re-argued to us with much earnestness by counsel, we will state what .seems to us to be a full, though obvious answer to the position •taken. The question and answer complained of were these:

“ Q. Were you aware that there was any danger in riding upon that step ? * * * A. I was not; I had observed other people riding in that position at various other times.”

It is argued that this testimony left the case with the jury, not strictly upon their notion of the propriety of the defendant’s conduct in the face of real and apparent danger; but rather that the plaintiff should he exonerated from, blame if he did not see or appreciate the dangerous situation. It is manifest, however, that the witness intended to, and did actually speak in this regard of the particular danger of which he had no knowledge or information until after the collision, namely, the closeness and depression, of the two inside rails of the double tracks of the railroad. Undoubtedly, he assumed, in riding upon the rail or step of the car, the ordinary hazards pertaining to such position, but not the risk caused by the gross negligence of the defendant in suffering its-tracks to be so laid as thus to throw a passing car in collision, with passengers riding on another car going in the opposite direction on an adjacent track.

We think the judgment and order appealed from should be affirmed.

Judgment and order appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


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    Delos Riddle, App’lt, v. The Village of Westfield, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Municipal corporations—Negligence—Damages.
    In an action brought to recover for damages to plaintiff's horse, which fell into a ditch in one of the streets of the defendant village, it appeared that defendant, through its water commissioners, had laid a water main through the center of one of its streets so that plaintifTs horse slumped into the ditch; that the ground had been improperly packed with loose earth so as to give way in the spring, which it did. Reid, that the unsafe condition of the street was caused directly by the act of defendant, and therefore it was liable for the damage sustained.
    Appeal by the plaintiff, Delos Eiddle, from a judgment of the county court of Chautauqua county, mtered January 5, 1891, reversing a judgment of a justice of the peace, in an action brought to recover damages to the plaintiff’s horse, which fell into a ditch in one of the streets of the defendant.

      S. W. Mason, for app’lt; H. C. Kingsbury, for resp’t.
   Macomber, J.

At the trial, which was had before the justice of the peace and a jury, the plaintiff recovered 'a júdgment for fifteen dollars, the undisputed value of his horse. While driving along the street the horse suddenly fell or sunk into a soft place,, and there received such injuries as to render him worthless.

The learned county judge reversed the judgment of the justice’s court upon the ground that the plaintiff gave no evidence-that the defendant’s trustees had any knowledge or notice of the defective highway, or that the defect had existed so long as that, knowledge thereof might be inferred. There being, therefore, no-notice to the village trustees, either actual or constructive, he was of the opinion that the recovery could not be sustained. The principle stated by the learned judge is undoubtedly correct, as is shown by the case of Pomfrey v. Village of Saratoga Springs, 104 N. Y., 459; 5 St. Rep., 802. But there is an exception to the general rule which is as well defined and stable as the rule itself, and that is: That where the unsafe condition of the street is caused directly by the act of the corporation itself, or its agents, liability for injuries sustained attaches directly and not through the doctrine of notice, either express or constructive. Turner v. City of Newburgh, 109 N. Y., 301; 15 St. Rep., 93.

We are disposed to think that this case comes within the exception to the rule, and that upon the evidence the plaintiff was-entitled to have the jury say whether his loss was .ascribable to any omission of duty which the defendant owed to him as one of the traveling public.

As a municipal corporation, the defendant had the care and management of the village street. Through its water commissioners the defendant had laid a water main through West Main street adjacent to and so near the center of the street as to render it likely that a passing team might naturally come upon the surface of the ditch without fault of the driver. When passing along in the usual manner in which such horses are accustomed to be driven the plaintiff’s horse slumped into the place of the ditch.

The question before the jury is, why did the horse go in there ? Was it through the fault of the defendant ? The accident happened March 1, 1890. The water pipe had been laid by the defendant’s agents about a month or two before, and instead of properly packing the ground in the usual manner, the ditch was filled with loose earth which would be liable to give way in the spring, as it did, in fact, in this instance. There is a suggestion made in the opinion of the learned county judge that the accident might have been caused by the bursting of the water pipe in the ditch. But we find no evidence to sustain such an hypothesis. The testimony, it is true, which the justice of the peace has sent up is meager and fragmentary as is usual in appeals from that court; but enough, we think, appears to show that the jury was supported by evidence and the proper inferences to be drawn therefrom in finding that the defendant so unskillfully covered the water pipe trench as needlessly to jeopardize travellers.

On the whole we think the judgment of the county court should be reversed and that of the justice of the peace sustained.

Judgment of county court of Chautauqua county reversed, and the judgment of justice of peace affirmed, with costs to the plaintiff of the appeals to the county court and to this court.

Dwight, P. J., and Lewis, J., concur.


text:
    Allison K. Hume, Pl’ff, v. Edward C. Randall et al., Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Deed—Construction—Merchantable title.
    A deed to two parties contained the following: “ The parties of the second part shall have an equal and undivided interest in the property conveyed, and shall control and direct said property during their natural life, after the decease of W., one of the parties of the first part. Neither party or both shall have the right to convey away this property by deed or other forms during their lives without the written consent of W., but it may be arranged to dispose of by will by one of the second party who shall survive the other, or by a mutual will as the parties may agree, which shall take efEect after the death of both parties of the second part. After the decease of one of the second party the survivor shall have the rents, products and issues at her use and control, and if either of the parities marry, then the other shall have full control and possess the entire premises herein deeded.” W. died, and the parties of the second part •deeded the property to H., who in turn, entered into a contract to sell it to ¡R. and Y., who refused to complete the sale on the ground that the title was not a merchantable one. Held, that the original grantees did not take an ■absolute fee of the premises, but only a life interest therein with a p< wer to them to dispose of such title by will, either by the survivor of them or jointly, and that the title was not a merchantable one and R. and Y. were not bound to complete the agreement.
    Controversy submitted without action under § 1279 of the Code of Civil Pro.

      Frank F. Williams, for pl’ff; Jesse H. Behrends, for def'ts.
   Macomber, J.

The parties to this submission entered into a land contract on the 13th day of February, 1892, by which the plaintiff agreed to sell and the defendants to buy the lands described in the submission, under the terms of payment not necessary to be set forth in detail. By this agreement the plaintiff -contracted to give by warranty deed a good and sufficient title to the lands so sold. At the time named in the contract for the fulfilment of the agreement both parties were ready, the one tendering a warranty deed and the other performance on his part; but the latter objected to the title offered by the plaintiff, and refused to receive the same upon the ground that it was not a good, merchantable title to the land.

The special objection raised to the plaintiff’s title was, that it was not good for the reason that be obtained it by virtue of a deed, which, though containing a covenant of warranty duly executed by one Sarah A. Cornell and one Laura S. Beal, his grantors, properly acknowledged by them, was imperfect because it was derived by them from one William S. Van Duzee and Oral H. Yan Duzee, his wife, by deed recorded February 2, 1883, and that the last named persons did not have an absolute title to, nor power to convey the lands in fee simple. The deed from Yan Duzee and wife to Sarah A. Cornell and Laura S. Beal (the latter the grantors of the plaintiff), purported to convey the lands in question in the usual form so far as the granting clause is concerned, but had in the body of the deed the following: “It is hereby intended and understood that the parties of the second part (Sarah A. Cornell and Laura S. Beal), shall both have an •equal and undivided interest in the property conveyed above, :and said parties shall control and direct said property during their natural life after the decease of William S. Van Duzee, one of •the parties of the first part. If one of the parties of the second part should be taken away by death, the other party shall have the control during her natural life after the time mentioned above, ■but neither party or both shall have the right to convey away this property by deed or other forms during their lives without the written consent of William S. Yan Duzee, one of the parties of the first part, but it may be arranged to dispose of by will by one of the second party who shall survive the other, or by a mutual will,, as the parties may agree, which will shall take effect after the death of both parpes of the second part mentioned above. Said Van Duzee shall have the full control of said property and its products during bis natural life, but the products, interest and issues of said property shall go for the benefit of the parties of the second part. It being understood that said products, interest and issues shall be equally divided between the parties of the second part, but after the decease of one of the second party, the survivor shall have said rents, products and issues at her use and control. And it is further stipulated that if either of the parties marry mentioned above, then the other party shall have full control and possess the entire premises herein deeded.”

William S. Van Duzee and Oral H. Van Duzee are both dead. Sarah A. Cornell and Laura S. Beal are both still living; this latter fact does not appear in the printed submission, but it was so stipulated by counsel at the time of the argument.

We are of the opinion that, under the foregoing provision or condition in the deed, the grantees, Sarah A. Cornell and Laura S. Beal, did not take an absolute fee of the premises, but only a life interest therein, with a power to them to dispose of such title by will, either by the survivor of them, or jointly. If this be so, it follows, as a matter of course, that their title is not a merchantable one, and that the defendants are not, upon that ground alone, bound to fulfil their part of the agreement The true construction of this deed, it seems to us, is that the grantor should, during his lifetime, manage the land and receive the rents and profits thereof, not to his own use, but for the use of the grantees. There did not exist in the “grantees a right to the profits and income of the real estate, except in this way, which was, in some sort, a trust created by the grantor himself. The case does not come under § 85, art. 3, title 2, chap. 1, part 2 of the Bevised Statutes, whereby any power of disposition shall be deemed absolute, by means of which the grantee is enabled, during his lifetime, to dispose of the entire fee for his own use and benefit. The grantees did not possess this right or power. Indeed, they were, in terms, expressly forbidden so to dispose of it. As was said by the court in Cutting v. Cutting, 86 N. Y., 522, “the revisers say that, in reason and sense, there is no distinction between, the absolute power of disposition and the absolute ownership, and that it is an affront to common sense to say that a man has n» property in that which he may sell when he chooses, and dispose' of the proceeds at his pleasure.”

The terms of the statute in defining an absolute fee do not include a power to appoint by will. It is manifest that a power to devise real estate at the end of the life estate does not bring with it a fee in the life tenant which may be disposed of by deed; such a title alone grows out of a right or power by which the grantee: is enabled in his lifetime to dispose of the entire fee for his own benefit.

By the terms of the deed in this case this was affirmatively prohibited. See also, Crooke v. County of Kings, 97 N. Y., 421; Genet v. Hunt, 113 id., 158; 22 St. Rep., 774.

We are of the opinion therefore, that the deed of William S. Yan Duzee and wife to Sarah A. Cornell and Laura S. Beal did not vest in the grantees the absolute fee of the premises described •after the death of Yan Duzee and wife, so that the warranty deed •of said Cornell and Beal to the said Allison K Hume, the plaintiff, did not convey to him an absolute fee of the premises.

It follows, therefore, that the defendants are not obliged to complete their purchase of the premises, or accept the deed tendered. ^

Judgment ordered for the defendants on' the submission.

Dwight, P. J., and Lewis, J., concur.


text:
    Michele Casucci, App’lt, v. The Allegany & Kinzua Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Attorneys—Lien on cause of action—Prosecution for. .
    In an action brought to recover for personal injuries sustained by the plaintiff by reason of the negligence of the defendant in operating its train of cars, a settlement was effected between plaintiff and defendant by which the former released all claim for damages on payment of $250. Plaintiff’s attorney had a contract with his client by which, as part compensation for his services, he was to receive one-third of the recovery or settlement. The settlement male was, on motion of plaintiff’s attorney, so far set aside as to allow him to prosecute the action to recover the amount of his lien. Upon the trial plaintiffs’ attorney asserted that by showing the settlement he had a right to recover in plaintiff’s name,but for his benefit, one-third of the. amount of the settlement without entering into the merits of the controversy. Held, that this position was .untenable.
    Appeal by the plaintiff, Michele Casucci, from a judgment entered in Erie county February 13, 1892, dismissing his complaint •upon a nonsuit directed at the Erie circuit.

      Henry H. Seymour, for app’lt; Charles S. Cary, for resp’t.
   Macomber, J.

This action was brought to recover for personal injuries sustained by the plaintiff by reason of the negligence of the defendant in operating its train of cars on the 29th ■day of November, 1890.

After issue was joined a settlement was effected between the plaintiff and defendant by which the plaintiff released all claim for damages on the payment by the defendant of the sum of $250. It appears, however, that the plaintiff’s attorney had a contract with his client by which, as a part of the compensation for his services, he was to receive one-third of the amount of the recovery, or one-third of any amount for which the defendant should settle the action. No notice of this lien appears to have been given by the plaintiff’s attorney to the defendant, and-probably under § 66 of the Code of Civil Procedure no .such notice was necessary.

The settlement above mentioned was, upon motion of the plaintiff’s attorney, made in his own behalf, so far set aside as to permit the prosecution of the action and to enable the attorney tó recover the amount of his lien as compensation for professional services.

Upon the trial the learned counsel for the appellant assumed the position that by showing a settlement between the plaintiff and the defendant for the sum of $250 he, the attorney, had a right to recover in this action in the name of the plaintiff, but for the benefit of the attorney, one-third of that amount, without -entering upon the merits of the questions presented by the pleadings, which put in issue every question raised by the plaintiff, save only that the cars of the defendant at the time stated were in fact derailed. The assertion that the plaintiff himself was a passenger on that occasion was denied; the facts of his injuries were denied, and the affirmative defense that whatever injuries he received were caused by his own carelessness, was asserted in the answer. So far as we are aware, this contention made by the learned counsel in his own behalf presents such a case as has not been passed upon by the courts of this state. The case of Keeler v. Keeler, 51 Hun, 506; 21 St. Rep., 666, cited by him, falls far short of holding any such rule to exist We are unable to hold under this section of the Code, that in case of a settlement by a defendant with the plaintiff in a negligence case, the plaintiff’s lien may be thus easily worked out. Such, we think, could not have been the view of the counsel when he made the motion at special term to set aside the settlement as being made in violation ■of his lien, when he was permitted by the order of the court, pro■cured on such motion, so far to open such settlement as to permit 'him to prosecute the case for the recovery of his lien. To hold ■otherwise would be tantamount to deciding that the defendant in such an action could not safely compromise or settle a claim for personal injuries caused through its alleged negligence, without being conclusively held to have admitted its legal liability. But -compromises and settlements of actions never proceed upon any .such hypothesis. Common experience shows that parties may often deem it for their best interests, without acknowledging liability, to pay something rather than to litigate a contested claim.

In any view that we may regard this case, we think that the trial judge was correct in non-suiting the plaintiff upon the trial, in the absence of any evidence charging the defendant with liability for the injuries sustained by the plaintiff.

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    Nelson Beardsley, App’lt, v. Arthur M. Gaylord et al., Respt’s.

      {Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Evidence—Parol—To vary terms op written instrument.
    G. purchased some real estate from L., and as part payment executed and delivered to him a bond and mortgage for $4,784. G. being about to enter into partnership with H. and another, conveyed the property to them, and took back a purchase money mortgage for $5,000. G. applied to B. for a loan on the second mortgage, which was refused, and L. then, assigned his mortgage to B. by an assignment absolute in terms, and took in. exchange the $5,000 mortgage. B. thereafter brought suit on a bond made by G. and wife, the defense to which was that the assignment above mentioned was absolute, and by it the bond had been paid. Parol evidence of such transaction was objected to by plaintiff because it was in conflict with, a statement in writing, put in evidence, signed by G., specifying certain payments made to him by B., and that the latter held the mortgage as security therefor. Meld, that such oral evidence was competent. •
    2. Same.
    In such action, evidence of G. that the paper was not read over to him,, but was stated to be a mere receipt, was competent.
    Appeal by the plaintiff, Nelson Beardsley, from a judgment entered in Cayuga county on the 8th day of January, 1892, in favor of the defendants, on a verdict of the jury at circuit.

      James R. Cox, for app’lt. F. D. Wright, for resp’ts.
   Macomber, J.

This action was brought upon a bond given, by the defendants for the sum of $1,000, April 6, 1880. The defense interposed was payment. Upon the trial at the circuit, the-jury rendered a verdict in favor of the defendants on that issue. As the case comes up on a bill of exceptions only and not upon the facts, the evidence being only in part returned, this verdict must be deemed to be conclusive as between the parties unless a supposed error, committed by the court at the trial and now relied upon by the learned counsel for the plaintiff, is fatal to it.

This plea of payment was made out through somewhat complicated transactions, all of which it is not perhaps necessary to rehearse. But it appears that the defendant, Arthur M. Gaylord,, bought some real estate in Union Springs, known as the foundry property, from one Henry H. Lewis, and as part of the consideration for such purchase he executed and delivered to Lewis a bond and mortgage in the sum of $4,784.

Being about.to take into partnership certain persons, it was arranged that Gaylord should convey the property to two of such persons by the name of Howes, and take back from them a purchase money mortgage in the sum of $5,000, which, of course,, would be a second mortgage, and inferior as a security to that held by Lewis. The deed and the bond and mortgage were duly executed. It was then further agreed that Gaylord should raise money on the $5,000 mortgage for a working capital of the new co-partnership.

In such condition of affairs, Gaylord applied to the plaintiff for a loan upon the second mortgage. The plaintiff refused to make such loan because the mortgage was a second mortgage. It was then agreed that Lewis should make an assignment to the plaintiff of the $4,784 mortgage, which bore date the 27th day of August, 1884, and that he should take in exchange therefor the'$5,000 mortgage, the payment of which was. to be guaranteed by one of the co-partners of Gaylord by the name of Chamberlain. A payment of $800 in cash was made to Lewis in this transaction. The plaintiff finally accepted an assignment which was absolute in terms, of this $4784 mortgage, and paid to the defendant Gaylord, at the time of such assignment, the sum of $900. The sole question upon the trial was Whether this assignment, which was absolute in its terms, was in fact absolute, or whether it was taken to secure such moneys as the plaintiff should see fit to advance to Gaylord from time to "time. Upon this question the verdict of the jury was rendered dor the defendants.

But it is claimed by the learned counsel for the appellant that the oral evidence of such transaction upon which the verdict was rendered was inadmissible because it was in conflict with a statement in writing put in evidence signed by the defendant, Arthur M. Gaylord. That writing is as follows: “Mortgage of Arthur M. Gaylord to H. H. Lewis, to secure payment -of $4,784, and interest, has been assigned to N. Beardsley at my request. Mr. Beardsley has advanced money on account of ;said assignment as follows: September 18, 1884, $900, and October 7,1884, $350, and also October 29, 1884, $250, and he also holds a mortgage for $1,000 and interest from the first of April 1884, made by said Gaylord and wife, making $2,500, principal .and interest on both sums from above dates, and as security therefor, said Beardsley holds said mortgage dated October 29, 1884. ■(Signed) Arthur M. Gaylord.”

It is argued by the learned counsel for the appellant, that this paper writing is conclusive against the defendant, and that no oral testimony was admissible to vary its terms. But it seems to us, however, that the paper is not a contract in any respect; nor did it induce any action on the part of the plaintiff which ihe defendant should not be permitted to repudiate. It is a ■mere statement in writing of certain facts which it is not contended by the plaintiff existed in the transactions between the parties. This paper was laid before the jury in a charge of much care, and under evidence which, as it seems to us, was competent.

We think that the evidence of the defendant, that the paper was not read over to him, but was stated to be a mere receipt, was competent under the circumstances, for the simple reason that it was not in fact, nor did it purport to be, a contract between the parties. It did not form and could not have formed any issue presented by the pleadings.

For this reason we think that the evidence complained of was admissible, and that the judgment entered upon the verdict should be affirmed.

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    Lawrence Saltsman, Resp’t, v. The New York, Lake Erie & Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Common carreer—Damages nor loss of personal property—Paroi EVIDENCE TO VARY WRITTEN INSTRUMENT.
    In an action against a railroad company to recover damages for the loss of a shipment of potatoes, caused by the negligence of defendant, the defense was that the contract entered into was only to carry the car-load to Buffalo, and not to Elkhart, as plaintiff claimed, the loss occurring after the car had left Buffalo. The heading of the receipt stated that notice was to be given to the consignee at Elkhart, while the body of the instrument stated that the defendant agreed to forward the property to Buffalo, it contained no restriction against any contract which the defendant might have, entered into in respect to transporting the property to its ultimate destination. Held, that, notwithstanding the acceptance of this paper, it was competent for the plaintiff to show what the real contract was under which the defendant undertook the care of his property.
    3. Same—Contbact to tbaijspobt beyond own line.
    It is' competent, for a common carrier to contract to transport freight beyond its own line, and when made such contract is binding on the carrier.
    Appeal by the defendant, The New York, Lake Brie & Western Railroad Company, from a judgment entered in Steuben County on the 17th day of October, 1891, on the verdict of a. jury at the circuit directed 'by the court, and, also, an appeal by the defendant from an order denying its motion for a new .trial on a case and exceptions.

      James H. Stevens, Jr., for app’lt; Miller & Nichols, for resp’t.
   Macomber, J.

This action was brought to recover damages for the loss of a certain shipment of potatoes, caused by the negligence of the defendant which had undertaken, according to the plaintiff’s contention, to transport the same from Avoca, N. Y., to Elkhart, Indiana.

At the close of all the testimony the defendant’s counsel moved that the court direct a verdict in behalf of the defendant, which was denied, and thereupon plaintiff’s counsel made a like motion for a direction of a verdict for the plaintiff, which was granted.

The sum recovered was the amount due and unpaid upon a draft annexed to a shipping bill. The controversy turns upon the question, whether or not the contract entered into by the defendant was to carry the car-load of potatoes from Avoca to Elk-hart, Indiana, or only to Buffalo, N Y., the terminus of the defendant’s railway. As.we view the case presented by the motions made by the respective counsels, this question was substantially left to the determination of the court alone, as no request was made by the counsel for the defendant to submit any question of fact to the j ury. It is true that the respective motions for: a direction of a verdict were not made concurrently; but no question seems to have been raised at the trial which required the learned justice to submit any particular question of fact to the decision of the jury. The principal contention made against a recovery in this case is placed by the learned counsel for the defendant upon the ground that the written contract between the parties showed that the defendant’s undertaking was simply te carry the plaintiff’s produce from Avoca to the city of Buffalo. The bill of lading was as follows:

“ Avoca Station, November 7, 1887.
“ Received from L. Saltsman the following articles in apparent good order, viz.:
“ Car of potatoes in bulk, Car 37319.
“ Order of L. Saltsman. Released & gtd.
“ Notify D. Carpenter,
“ Elkhart, Indiana.
“ L S. & M. S. B’y. Claim Tracer.
-45649-
Claim Department.”
" Marked and numbered as per margin, which the N. Y., L. E. & W. R. R. Co. agrees to forward from Avoca, N. Y., to Buffalo, N. Y., upon the following conditions, viz.: That the shipper or ■owner does hereby release said company from liability for leakage of all kinds of liquids, breakage of all kinds of marble, glass, carboys of acid, or articles packed in glass, stoves and stove furniture, castings, machinery, carriages, furniture, musical instruments of all kinds, packages of eggs, or for loss or damage on hay, hemp, cotton or any article the bulk of which renders it necessary to be shipped in open cars; or for damage to perishable property of all kinds, occasioned by delays from any cause, or change of weather, or for damage or loss by fire while in the company’s depots, and the acceptance of this receipt by the shipper constitutes the agreement for the transportation of the above described goods or property.
“Signed, T. C. Chase, Agent.”

This bill of lading, were it the only evidence of a contract between the parties, would not, by any means, be conclusive upon the point made by the defendant’s counsel. The body of the instrument, it is true, says that the defendant agreed to forward the property from Avoca, N. Y., to Buffalo, N. Y. But the heading of the instrument shows clearly that this ■ car of potatoes was to be taken from Avoca, N. Y., to Elkhart, Indiana. The bill of lading does not contain any restrictions of liability against any contract which the defendant may have entered into in respect to transporting the property to its ultimate destination. We are of the opinion, therefore, that notwithstanding the acceptance of this paper, it was competent for the plaintiff to show what the real contract was under which the defendant undertook the care of the plaintiff’s property. The testimony leaves but one solution of this question open to us. It is in its nature quite conclusively shown by the testimony of the plaintiff that the contract with this defendant, by its proper agent, was, for the sum of twenty-five cents per hundred, to take the plaintiff’s potatoes in a car which should be furnished by the defendant, and that the defendant should transport the same to Elkhart, Indiana. Indeed, the evidence shows that the plaintiff, with the acquiescence of the defendant’s agent, fitted up the car specially for this purpose by placing a floor therein and erecting suitable bins to separate the different kinds of potatoes, one from the other. That it was competent for the parties to make this contract and that the same, if made under the circumstances stated, was binding upon the defendant, admits of no intelligent doubt under the well-adjudged cases. Riley v. N. Y., L. E. & W. R. Co., 34 Hun, 97; Jennings v. G. T. R. R. Co., 127 N. Y., 449; 40 St. Rep., 318. Some other questions are raised by the counsel for appellant, but inasmuch as they do not appear to have been presented to the trial court, they can hardly be regarded as properly before the court on appeal.

'These mainly relate to the measure of damages. If it was intended by the defendant’s counsel to contend that the liability was less than the amount of the draft accompanying the way bill, the point, we think, should have been presented at the circuit and not raised here for the first time.

Judgment and order appealed from should be affirmed.

Judgment and order appealed from affirmed.

Dwight, P. J., and Lewis, concur.


author: Per Curiam.

text:
    Frank Harley, Resp’t, v. The Buffalo Car Manufacturing Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Negligence—Evidence.
    Plaintiff was injured by the breaking of a belt in defendant’s factory. In an action for damages the question of fact was as to the strength and-sufficiency of the belt fasteners which attached the ends of the belt. Meld,. that with the identical fasteners before them in the shape of exhibits, expert witnesses could be called upon to determine whether that particular mode of fastening the ends of the belt was an approved and common one, or whether it was insufficient for the purpose mentioned.
    Appeal by the defendant, the Buffalo Car Manufacturing Company, from a judgment entered in Erie county May 16, 1892, in favor of the plaintiff against the defendant upon the verdict of a jury rendered at the circuit February 17, 1892.

      Adelbert Moot, for app’lt; George Wing, for resp’t.
   Per Curiam.

The plaintiff, who is a common laborer, was in the employment of the defendant in the month of September, 1889, and while engaged in removing shavings from the factory of the defendant, in which there was a large amount of machinery consisting of shafting and drive wheels for the purpose of running: lathes by leather belts, etc., was seriously injured by the breaking-of a belt, one end of which struck him in the face and destroyed one of his eyes.

Ho question is made but that the plaintiff was properly conducting himself and acting under the general directions of the defendant’s foreman.

■ Ho motion was made in behalf of the defendant for a new trial at the circuit or at the special term. There is, therefore, no question of fact before us; and unless the trial court committed some-error which was prejudicial to the defendant’s rights, the judgment appealed from should be affirmed.

The trial seems to have proceeded in all respects under the doctrine contained in the opinion of this court in this case as reported in Harley v. Buffalo Car Manufacturing Co., 15 N. Y. Sup., 37, and 38 St. Rep., 574.

Upon the first trial, as well as upon the last, the question of fact related to the strength and sufficiency of the belt fasteners which were used to attach the ends of the belt together. Muclfr ■evidence was adduced to show that the fastener iu question, which is spoken of generally as the Buffalo Belt Fastener, was insuffieient for the purpose designed ; and we think, on the whole, that there was enough evidence to warrant the court in submitting the question to the jury, and that their verdict cannot be disturbed upon the merits.

But it is argued, that the court committed an error in the reception of testimony, in permitting witnesses to put themselves in place of the jury, and in being allowed to testify that the fastener in question was not sufficient for the purpose. The first testimony of this description was given by the witness Hamilton, who testified that he was the owner of a planing mill which he had conducted for twenty-one years.

He was acquainted with this kind of a fastener. He had used it but had thrown it aside after a short trial. He was then asked whether it was a proper and secure fastener, and an objection was taken, not to the competency of the man to speak upon the subject, nor upon any other ground except that the evidence was incompetent. Thereupon, the witness said he did not think the fastener a good, practical fastener; that it wouldn’t hold; it was necessary to have something that would stay ; that this kind of a fastener gave out, would break, and was not what was required, that it was not a safe, practical fastener because it was liable to give out.

Other evidence of this character was adduced upon the trial; and later on an objection finally was taken to it, that the questions put to the witness were to be decided by the jury alone. But as the testimony, already noted, was given without objection, we hardly think that this form of objection is available, even if the witnesses had been permitted to speak, in some sort, upon the ultimate question to be determined by the jury themselves. But it appears to us, that the objection in this instance, namely, that the witness was putting himself in the jury box and deciding the question for the jury, is not tenable from the very nature of the inquiry which was necessary to be entered upon at the trial. The whole question of fact related to the sufficiency and adaptability of this fastener to the purposes required; and whether it was a competent and sufficient means of attaching the ends of the Belt together into an endless band for the purpose of propelling machinery. We do not think it was necessary in this instance for counsel and witness to resort to any circumlocution; but having the identical fasteners before them in shape of exhibits which were introduced* in evidence, the witnesses could be called upon, safely, to determine whether that particular mode of fastening the ends of the belt together was an approved and common mode; or whether it was insufficient for the purpose designed.

The judgment appealed from should be affirmed.

Judgment appealed from affirmed.

Dwight, P. J., Macomber and Lewis, JJ., concur.


text:
    Charles M. Tompkins et al., App’lts, v. Charles Hunter et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Fraud—Transfer of entire property with agreement not to make, GENERAL ASSIGNMENT.
    A transfer by an insolvent of his entire assets to a creditor who has-knowledge of such insolvency and that there are other creditors, accompanied by an agreement not to make a general assignment, ,is fraudulent as to creditors and an attempt to evade the general assignment law, and cannot be permitted to stand, although the same was made in payment of' a bona fide debt.
    Appeal by the plaintiffs, Charles M. Tompkins et al., from a. judgment entered in Yates county, February 3, 1892, dismissing; their complaint

      Wm. F. Cogswell, for app’lts ; Edward Harris, for resp’ts.
   Macomber, J.

The plaintiffs, severally, are judgment creditors of the defendant, Charles Hunter. The consideration for the judgment in each case arose upon an indebtedness existing prior to the 19th day of April, 1890, the time when the principal transaction involved in this appeal took place. Prior to this date. Mr. Hunter had been engaged in business in Penn Yan, as a grocer and produce dealer. He was possessed of a considerable amount of real estate. He owed debts amounting in all to $36,000, the-most of which, namely, the sum of $29,000, was owing to the defendant, the.First National Bank of Penn Yan. He was at this-time unable to pay the whole of his indebtedness, and was actually, insolvent to his knowledge and to that of the officers of this bank. Thereupon the debtor determined to discontinue his business and announced such determination to the president of the-bank. He proposed that he should convey and assign to the bank all his real and personal property not exempt from levy and sale-on execution, in payment of his liabilities to that corporation so-far as the same would go. This proposition was accepted ; and on the 21st day of April, 1890, the debtor transferred in writing, by assignment and conveyance, to the bank, all of his property, real and. personal, except such as was in fact exempt, from levy and sale on execution, including all debts and book accounts due-to him.

The amount of his property so turned over to the bank was-$21,767,70. For this property the bank surrendered to Mr. Hunter notes to that amount, less the sum of sixteen hundred dollars, which last named sum was applied upon a note for a greater amount held by the bank, upon which amount Hunter was liable. This property was received by the bank in actual payment of a bona fide indebtedness to it by Mr. Hunter, to whom his notes-were surrendered. It is found by the trial court that at the time of making this transfer the debtor had no intention of executing a general assignment for the benefit of his creditors, and that in fact-he never did make any such assignment. During the negotiations between the debtor and the bank officers, it was stated that this property was all the property which Hunter possessed. Theeourt found as a fact “ that the defendant did not intend to make-a general assignment, and the question whether or not such a transfer could be made to the bank without violation of law was a subject of consultation between said Hunter and the president of said bank and its legal adviser, and the said transfer in payment aforesaid was made as the result of such consultation.”’ (13th finding.) The bank immediately took possession, and has continued in possession, of the property since that time. The 16th finding is as follows: “ That upon making said transfer the intention of said Hunter was simply -to pay his debt to the said bank so far as his property was sufficient therefor, and the intent of the said bank was simply to receive payment of the debt owing-from Hunter.”

As a conclusion of law the learned justice at special term decided that such transfer was not such a preference as is forbidden by the general assignment act, and was valid; and he accordingly dismissed the plaintiffs’ complaint.

There was no finding upon the question which was presented by the pleadings, namely, whether or not the transfer above mentioned was absolutely and wholly fraudulent and void as to creditors. Such issué was not specially and affirmatively determined in the findings one way or the other’, but the court put its judgment solely on the ground that the transaction was • not such a preference as is forbidden by the assignment act

The general question is, whether Charles Hunter, being insolvent to his own knowledge and to the knowledge of the defendant, the First National Bank of Penn Yan, and having determined to abandon further efforts to continue his business, could legally make a transfer to the bank of all his property liable for his debts in payment of the debt owing by him to the bank, leaving, to-the knowledge of the officers of the bank, other creditors wholly unpaid and unprovided for, when the transaction is accompanied by an arrangement between the debtor and the creditor by which the debtor should not afterwards make an assignment of his property under the general assignment act, lest the transfer might be questioned in any future proceedings in the court ?

This precise question has not, so far as I know, been actually decided by the courts of this state. The case of Dillingham v. Flack, 17 N. Y. Supp., 879; 43 St. Rep., 810, held, that when a grantor disposed of all his property for the benefit of a portion of his creditors only, such conveyance is illegal and void, and the title of one claiming under a bill of sale thereof will not prevail against-an attaching creditor. Manning v. Beck, 54 Hun, 102; 26 St. Rep., 483, contains the views entertained at that time by this court, where it was held, in substance, that a voluntary surrender by an insolvent debtor of dominion over his entire estate and the transfer of the whole, or substantially the whole, of his property to a portion of his creditors in order to give them a preference over others, whether made by one instrument or more, whatever form the same might take, when such transferred portion was an unlawful preference in fact, the assignment itself may be assailed by a creditor and the same set aside as a fraud upon the general assignment act. It was there, that the case of White v. Cotzhausen, 129 U. S., 329, was, for the first time I think, attempted to be applied to the general assignment act of this state. The case then before us arose, however, not upon an appeal from a judgment, but from an order of the special term appointing a receiver and. granting an injunction. The case was therefore presented upon ex parte affidavits. It there appeared clearly, as it seemed to the court, that it was the purpose of the debtor first to transfer all of his property to a favored creditor, and then, lest such transfer should be assailed, in form to make an assignment under the general assignment act to a person whom he believed that he could control, and who would not avail himself of the rights and privileges of a general assignee to bring actions to set aside fraudulent transfers of property by his assignor.

It there appeared abundantly, that the creditor well knew of this scheme. That case was afterwards tried at the special term and judgment was pronounced in favor of the judgment creditors against the validity of the transfer and against the validity of the assignment. The case was appealed to this court, and the decision of the special term was affirmed upon the opinion of the learned justice at the special term, as well as upon the former opinion of this court upon the appeal from the order appointing the receiver, etc. No state of facts was brought to our attention at that time which differed in any essential particular from those appearing upon the appeal from the order, yet on appeal the court of appeals decided that the trial court had failed to find that the creditor knew that it was the intention of the debtor, after stripping himself of his property in his favor, to go through the form of making ■an assignment, and accordingly' a new trial was granted by that ■court. Manning v. Beck, 129 N. Y., 1; 41 St. Rep., 199.

This case, however, is not the Manning and Beck case, but exactly the converse of it The evidence before us shows and the findings of the learned justice are to the effect that in this instance the creditor, having taken alarm at the recent discussions ■of the legal questions arising upon transactions where one creditor had absorbed all the property of the debtor to the injury of other creditors, was careful to provide in the arrangement which he •made with his willing debtor that no assignment under the general assignment act should be made. What is the legal bearing upon the general question of this particular fact ?

Is an agreement by which the debtor should make an assignment after dispossessing himself of his property of any greater moment than an agreement that he should not make an assignment of his property ? In both instances the creditor undertakes to, and does, so far as an agreement can do it, control the actions ■of his debtor. At the time of the arrangement in the Manning and Beck case, by which an assignment should actually be made, it was thought by most respectable counsel that it would be the means of making effective the transaction by which one creditor had taken all the property of the debtor who was owing many creditors. But later on, in the year 1890, when this transaction was completed, it was thought by equally diligent creditors and. competent lawyers that it was better and safer not to have "any such agreement as there was, or was supposed to be, in the Manning case; and in order to make the thing effective it was believed, undoubtedly, that it would be advisable to have an affirmative understanding that such an assignment should not in fact be-made. It seems to me that the fact in the one case is as much oí a fraud upon the creditor as in the other case. Why should the creditor named in this action have concerned itself with any future matters pertaining to the debtor’s estate, if it were acting entirely above board, and only as an honest and diligent creditor-may act, and who, when so acting, may from an insolvent debtor receive property in payment of his debt in whole or in part ?

In the Manning and Beck case it was contended by counsel for the appellant that no one could bring an action to set aside such-, a transfer of property save the general assignee, and that creditors themselves could not do so so long as there was an assignee who might do so. In this case no such contention is made. But, on? the contrary, it is argued that, under the general rule (well recognized and repeatedly stated by the courts that creditors may be paid out of the property of insolvent debtors when the transaction is an honest one), the creditor may take all of the property of a debtor, and then prevent any inquiry as to the propriety of it by making an arrangement by which the debtor himself should afterwards do no act by way of making an assignment, or otherwise, which should jeopardize or question the propriety of such a transfer.

The very existence of such an arrangement shows an intent on the part of the parties to the transaction' not only to elude that general provision of the assignment act which prevents an insolvent debtor, when making a general assignment for the benefit of his creditors, to apply more than one-third in value of his property as a preference, but shows further that the transaction is. absolutely fraudulent.

It seems to me, therefore, that under the evidence and the findings of fact, the agreement made between the debtor and the creditor showed that the transaction was wholly fraudulent as to the-creditors, as well as an attempt at evasion of the general assignment law, and cannot be allowed to stand.

The case of Woodworth v. Hodgson, 35 St. Rep., 964, affirmed in 129 N. Y., 669, 42 St. Rep., 946 (without an opinion) contains, I venture to think, no doctrine contrary to this. In that case there was no agreement whatever relating to the subject of making or not making an assignment. There the plaintiff had furnished, substantially, all of the capital to his son in order to set him up in the grocery business in the city of Rochester; and such business had proved to be a losing venture; and the son had become discouraged and wished to turn over the property to his father for his indebtedness, and accordingly did so; whereupon the father took possession of the property. That was exactly the transaction so repeatedly upheld by the courts, that a creditor may take from a debtor any or all-of his property in payment of his-debt, provided the transaction does not involve other matters rendering it void by reason of collision with some equitable principle or with a statute of - this state.

In fine, it is the attending agreement, either to make an assignment, as was done in the Manning and Bede case, or not to make it, as was done in this case, in both of which the creditor undertook to control the future conduct of the debtor, which shows a fraudulent intent of the parties, and renders void the transfer of property though made in payment of a bona fide debt.

Since the foregoing opinion was prepared, the attention of the court has been called to the case of the Central National Bank et al., v. Seligman et al., 47 St. Rep., 17, September, 1892, which, in principle and reasoning, singularly fortifies the views already expressed. That case differs in the special facts involved from Manning v. Bede, and from this one, in that it follows neither of them in the mode adopted in getting advantage of some creditors; "but combined the essential properties of both.

Seligman Brothers & Go., anxious to prefer certain creditors, confessed judgments and assigned certain accounts to them; and in order that such judgments and transfer might not be attacked, the debtors made simultaneously a general assignment of all their property for the benefit of creditors ostensibly under the general assignment law, and it was mutually arranged that the assignment should go on record five minutes before the confessed judgments, which was done. But the general assignment in pursuance of the general intent was so skillfully drawn as to be void on its face, and was so treated. It was reasoned by the parties that the judgments and transfers of the book accounts, good as was thought against everybody save the assignee, would be unassailable, and the desired preferences completely accomplished. In an elaborate opinion the court held that such preferences were fraudulent and illegal, though made upon a bona fide indebtedness, and that the moneys realized thereon could not be retained by the creditors so preferred for any part of their indebtedness, and that they must account therefor to the plaintiffs, who were also creditors of Seligman Bros. & Go., and who obtained judgments subsequently to the assignment and confessions of judgments to the favored creditors.

For these reasons I think the‘judgment appealed from should be reversed.

Judgment appealed from reversed and a new trial granted, with costs to abide the final award of costs.

Dwight, P. J., and Lewis, J., concur.


author: Andrews, J.

text:
    Jenny Nelson, Resp’t, v. James Russell et al., App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Will—Vesting of estate.
    By the will of B. he gave to his daughters certain real estate, and the rents, issues and profits during their natural lives, and “ from and after the decease of my said daughters, * * * and each of them,” he gave the same to the defendants, his grandchildren, “ to he divided equally he-tween them and their heirs, share and share alike, the child, or children, of a deceased child taking the share which his, her or their parent would have taken if living.” The will contained no other provision as to the time of the vesting of the remainder. Held, that the two grandchildren who survived testator took upon his death a vested remainder in fee in the premises in question, and that the provision for their issue was by way of substitution in case of the death of the parent during the life of the testator.
    3. Same—“Fbom and aeteb.”
    “From and after” used in a gift of a remainder following a life estate do not afford sufficient ground in themselves for adjudging that a remainder is contingent, and not vested, and unless their meaning is enlarged by the context, they are regarded as defining the time of enjoyment simply, and not of vesting the title.
    Appeal from judgment of the supreme court, general term, first department, awarding judgment to plaintiff upon a case agreed upon and submitted under § 1279 of the Code of Civil Procedure.

      Thos. F. Magner, for app’lts ; John F. McFarland, for resp’t.

       Reversing 41 St. Rep., 401.

   Andrews, J.

The determination of this appeal depends upon the question whether, under the will of David Barry, his grandchildren James and Ellen Barry took on the death of the testator a vested remainder in fee in the premises No. 358 Cherry street, in the city of New York. It is claimed in behalf of the plaintiff, the purchaser of the premises under a contract with Bridget Russell, the daughter of the testator, who took a life estate under the will, and the two grandchildren named, that the remainder was contingent and that in case of the death of the two grandchildren during the life tenancy, or of either of them leaving issue, such, issue would take as purchasers the share which would have gone to the parent if living. Upon this ground it is insisted the title tendered was defective.

The controversy turns upon the true construction of the third paragraph of the will, which is as follows: “ I give and devise 'unto my beloved daughters, Catharine Barry and Bridget Russell, all my real property in the city of New York, and known as numbers 356 and 358 Cherry street, and the rents, issues and profits thereof for and during the term of their natural lives, and from and after the decease of my said daughters, Catharine Barry and Bridget Russell, and each of them, I give and bequeath the said premises number 356 Cherry street to James Russell, the son of my said daughter Bridget Russell, and upon the like events I give and bequeath the said premises number 358 Cherry street to James Barry and Ellen Barry, the children of my son Michael Barry, now deceased, to be divided equally between them and their heirs, share and share alike, the child or children of a deceased child taking the share which his, her or their parent would have taken if living.”

We are of opinion that by the settled rules of construction the two grandchildren, James Barry and Ellen Barry, who survived the testator, took upon his death a vested remainder in fee in the premises in question and that the provision for their issue was by way of substitution' in case of the death of the parent during the life of the testator. The issue were to take in place of the parent if the parent should die before the- testator. Much stress-is laid upon the words “from and after the decease of my said daughters,” immediately preceding the words of gift of the remainder, as indicating an intention to postpone the vesting until the happening of that event.

But the authorities are quite uniform that the words “ from and after,” used in a gift of a remainder following a life estate, do not afford sufficient ground in themselves for adjudging that a remainder is contingent, and not vested, and unless their meaning is enlarged by the context they are regarded as defining the time of enjoyment simply, and not of vesting the title. Moore v. Lyons, 25 Wend., 119; Livingston v. Greene, 52 N. Y., 118; Rose v. Hill, 3 Burr., 1882; Doe v. Prigg, 8 B. & Cress., 231.

The presumption is that a testator intends that his dispositions are to take effect either in enj oyment or interest at the date of his-death, and unless the language of the will by fair construction makes his gifts contingent, they will be regarded as vested. Words-of survivorship and gifts over on the death of: the primary beneficiary are construed, unless a contrary intenti¿n appears, as relating to the death of the testator. Vanderzee v. Slingerland, 103 N. Y., 55; 2 St. Rep., 732; Matter of N. Y., L. & W. R. R. Co., 105 N. Y., 92; 6 St. Rep., 851.

There is nothing so far as we can discover on the face of the will, aside from the words “ from and after,” to give any color to the construction that the vesting of the remainder was postponed beyond the death of the testator. ¡Nor is there even the apparent injustice which sometimes results from the rule of construction to which we have adverted. The son of the testator, the father of the grandchildren, James and Ellen Barry, to whom the remainder was given, had died before the testator and there could be no disinheritance of subsequently born issue. The gift was to the grandchildren “ and their heirs.” Under the construction of the will claimed by the plaintiff, they might never derive any benefit under the will.

We think the present judgment cannot be maintained without departing from settled rules of construction which have become landmarks of property.

Judgment reversed and judgment ordered for the defendants on the argued case.

All concur.