text:
    Steven Bosko, Resp’t, v. Delaware, Lackawanna and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Negligence—Railroad crossings.
    A railroad company is not chargeable with negligence in not giving a signal on approaching a crossing, where such signal would not have averted the accident.
    '3. Same—Insufficiency of proof.
    Where, in an action against a railroad company for personal injuries, it appears that the plaintiff was a roving man, whose character was unknown, whose testimony was insufficient, aud who, according to the testimony of a number of witnesses, had given an account of the manner in which he was injured entirely inconsistent with that given on the trial, and that his testimony is outweighed by that introduced by defendant, a verdict in favor of plaintiff will be set aside on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Hamilton Odell, for app’lt;

      Catlin & Nekarda, for resp’t.
   Dykman, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury, after trial at the circuit, and from an order denying the motion of the defendant for a new trial upon the minutes of the- court. The facts were furnished by the plaintiff in his testimony as follows: He says that on the 10th day of October, 1894, he was a passenger on one of the cars of the defendant from Scranton to Washington; that he took the train from the former to the latter place between three and four o’clock in the afternoon, and arrived at Washington about seven o’clock in the evening; that he left the train at Washington, and he says he saw a man at the station, and he inquired if he could remain there over night; that he followed the road the way the- man told him, and went towards Port Golden; that he came to a crossing upon the public highway, and followed . the road for a while, and looked up and down the rails, and did not see or hear any train ; that he saw a path going down the beaten way, and went down, and when he crossed the east-bound track, going towards the west-bound track, he was stuck in the switch somewhere in the space there, and could not pull his foot out; that the train came, and struck him, and carried him about ten or fifteen feet distant from the place where he was struck. His. left leg w'as broken and subsequently amputated. On his cross-examination he said : “ I came to the trade after the beaten path, and then I stepped on a sort of a plank, or a sort of a bridge there-crossing the road.way. There were four tracks—two tracks there. I had crossed the first two east-bound tracks before I was stuck.” He further said he was advised there was a crossing, and he wanted to cross'that place; that there were some people crossing it, and he thought he would cross it himself. “Question. Was this a common road ? Answer. Ho, sir ; it was just a path going down, and a straight way going on the other side of the fence. This was a path — a regular beaten path — about four feet wide, that led from Washington down to the place where I was hurt.” The crossing in question was to and from thq turnpike leading to Washington and the public road on the opposite side of the railroad. A witness for the plaintiff, who was familiar with the locality, said he knew the highway, and had used the crossing for years, and had seen other people use it, and that the place was; used as a public crossing by people going from Port Golden to the public highway; that it was not a road crossing, but just a beaten, path that went down to the switch. The main defense to the action was that the accident did not happen as the plaintiff said it did, but that he was injured by falling from the platform of a freight train which he was trying to board to steal'a ride to Hew York; and six witnesses testified to admissions made to them by the plaintiff'substantially to that effect. The defense of contributory negligence was also interposed. The case was tried at the circuit before a jury, and the plaintiff recovered a verdict for $5,000. The defendant has appealed from the judgment and order a motion for a new trial.

The plaintiff is the only person who witnessed the accident, and his evidence is the only proof in the case respecting the unfortunate occurrence. There was no motion for a nonsuit, and no-exception to the charge of the trial j udge, but at the close of the testimony the counsel for the defendant moved for a direction of the verdict for the defendant. The appeal from the order denying the motion for a new trial on the minutes of the court entitles the defendant to an examination of the evidence in the case. While the evidence respecting the crossing where the plaintiff was injured may be sufficient to justify him in his effort to pass over the track at that place, yet we find the testimony insufficient to charge the defendant with negligence. The foot of the plaintiff was caught in the track, and he was unable to extricate it. Ho signal from the train, and no notice of its approach, could have been of any avail to him. There was no obligation to stop the train, and "that was the only thing that would have saved the plaintiff. If there was no signal given of the approach of the train, that neglect did not cause the injury, and is insufficient to sustain ihe action. It is only negligence which results in damages that will render a defendant responsible therefor. As, therefore, the evidenc^ fails to show any want of care in the operation of the train which-caused the injury to the plaintiff, it is insufficient to sustain the verdict. Moreover, the jury was not at liberty to disregard the proof introduced by the defendant of the statements of the plaintiff respecting the manner in which he received his injuries. The testimony of the witnesses was clear and explicit that the plaintiff admitted that he was endeavoring to board a freight train which was in motion to steal a ride, and in that effort fell under the wheels of the car. The statement was natural, and the evidence of its utterance was strongly preponderating. We have had occasion at this term of the court in the case of Nutting v. Railroad Co., 36 N. T. Supp. 142, to notice the disposition of juries to give verdicts against railroad corporations upon insufficient evidence, and this case is another illustration of that inclination. Here is a roving man, whose character is entirely unknown, whose testimony is entirely unsupported, who, according to the testimony of a number of witnesses, had given an account of the manner in which he was injured entirely inconsistent with that given by him in his testimony upon the trial, and yet the jury disregarded all the other evidence, and based a verdict upon his testimony alone. Instead of a preponderance of proof, which every plaintiff is bound to make, the testimony of the plaintiff was outweighed by the evidence introduced by the defendant. Hnder such circumstances it is our duty to interfere.

The judgment and order denying the motion for a new trial must be reversed, and -a new trial granted, with costs to the defendant to abide the event.

All concur.


source: Caselaw Access Project

author: Clement, C. J.

license: Public Domain

text:
    William A. Northridge, Resp’t, v. Atlantic Avenue Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed December 23, 1895.)

    1. Negligence—Rapid driving.
    The driver of a repair wagon for a street railway company, who drives along a public street at an excessive rate of speed and runs into another vehicle, is guilty of negligence, for which the street railway company is liable.
    3. Same.
    _ Such wagon has not the right of way over any other vehicle, nor authorizes the galloping of the horses attached to it through the streets, nor to permit, the clanging of a bell as a warning that individuals or vehicles should turn out.
    3. Same.
    A. person driving a wagon in a street is not bound to know that the driver of a rear wagon is driving at a reckless rate of speed.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt;

      Chas. S. Taber, for resp’t.
   Clement, C. J.

When the testimony offered by plaintiff was finished, a motion was made to dismiss the case, which motion was denied, and an exception was taken. It was not renewed at the close of the case. We are of opinion that it would clearly have been error to grant the motion.

Oar attention has been called only to one other exception. The objection was put upon the ground that the question was argumentative, leading, and assuming facts which may not have been established. The question was certainly not objectionable on the grounds stated.

The learned counsel for the company contend that the verdict was against the weight of evidence, but we cannot so hold. We think that the driver of the repair wagon was grossly negligent, on his own testimony. He claimed that he was driving on the northerly track of the railroad on Atlantic avenue, and. that the plaintiff was driving in front of the repair wagon, but outside the track. We quote from his testimony :

“He was on the right-hand side of me and he drove in, cut across to the butcher’s store to go down Bond street, and my right, hand horse and whiffle-tree caught his wagon. I was not-when he turned in it, more than fifteen to twenty feet behind him. I was driving ten or twelve miles an hour,—pretty lively for a team of horses. The wagon is twelve hundred. There were four men,—about six more hundred; about a ton, altogether, I guess, including the material.”

We have seen, in our city streets, for manjr years, fire engines drawn by galloping horses. When an alarm is sounded, as agents of the state, the firemen have, perhaps, the right of way. We also often see ambulances speeding to the relief of the injured, and at the sa'me time terrifying foot travelers, who, by activity, manage to save themselves from injury. Since the introduction of electric railways in the city, we also often see repair wagons with clanging bells, and drawn by horses at full speed. Our attention lias been called to no law which gives the repair wagon of a railway company a right of way over any other vehicle, or which authorizes the galloping of the horses, attached to it through the streets, or which permits the clanging of the beil as a warning that vehicles or individuals should turn out. If the railway companies have no respect for the law, they cannot complain if they are held liable bv injuries for all damages which result from their negligence, and from its willful violation. The law requires that every one who uses the streets shall do so carefully. The testimony in this case shows conclusively that the repair wagon was driven on Atlantic avenue at a reckless rate of speed, and that by reason thereof the plaintiff was thrown out of bis wagon and severely injured.

It is also claimed by the counsel for the company that the verdict is against the weight of evidence, on the ground that the plaintiff was himself negligent. The testimony offered on ¡¡he side of the plaintiff tended to show that the plaintiff was driving on the northerly track, and that the repair wagon was following on the same track. The witnesses for the plaintiff do not agree whether or not the plaintiff was turning off, in a southerly direction, to enter Bond street: but it is clear from the way the collision, occurred, that the plaintiff had only slightly turned at the time, if at all. The driver of the repair wagon, seeing the vehicle in front of him driving slowly, turned his horses to the left, with the intention of passing the plaintiff. No collision would have 'occurred if the plaintiff had kept on, but, he reached the street where he intended to go he may have turned his wagon slightly. The repair wagon was moving very rapidly, and no doubt could not then be stopped in time to avoid the collision. If the driver of the repair wagon had been driving at a reasonably safe rate of speed, no collision could have taken place. Theory of the defense was that the plaintiff was driving alongside of the track, and he turned suddenly to the south, that the repair wagon was driving in the track, and that the wagon of plaintiff cut him off, and thereby a collision was inevitable.

The fact that the repair wagon was driven on after the collision shows that the wagon of plaintiff had only turned slightly. It would seem that, a person driving a wagon in a street has the right to turn off in a side street, even if a wagon is behind him, and is not bound to anticipate that the wagon in the rear will turn off suddenly and run him down; and he is not bound to know that the driver in the rear wagon is driving at a reckless rate of speed. If the plaintiff was bound to anticipate that the driver of the repair wagon might turn to the left suddenly when he (plaintiff) began so to do, then the driver of the repair wagon was equally bound to anticipate that the plaintiff might turn also suddenly at the cross street, and should have slowed down in order to avoid injury to the wagon of plaintiff. 'The rule that a person driving on a track of a street railway is bound to look around occasionally and see if a car is approaching, has no application to this case. A repair wagon is not a street car and is not confined to the tracks. A street car can only be moved on the tracks and therefore the cars of a railroad company have a paramount right of way over wagons. The driver of a wagon used by a railroad company has the same rights as the driver'of a wagon used by an individual,'— no more and no less. If a driver turns off a straight course, he necessarily slows down his horse, and is not negligent, as a matter of law, if he does not see a wagon which is driven in the rear. If the repair wagon was not in the rear, as claimed by the company, then, of course, the plaintiff should not have driven suddenly in front of it, though, even then under the circumstances of this case we are not prepared to say that the question should not be passed upon by the jury.

These two therories are correctly set forth in the charge of the learned trial judge, and the jury found in'favor of the plaintiff.

Judgment and order denying new trial affirmed, with costs.


author: Pryor, J. Daly, C. J.

text:
    Ralph Moss, Individually and Surviving Executor, etc., App’lt, v. Jacob Cohen et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    1. Pleadings — Joinder op causes — Individual and representative rights.
    A claim in an individual right and a claim in a representative right may not he united in the same complaint.

      2. Contracts—Validity—Public policy.
    A bond of indemnity to a testamen'ary trnstee to induce a misappropriation of the trust fund is incapable of supporting an action.
    3. Money had and received—Misappropriation oe trust eund.
    If the plaintiff make good the fund of which he is trustee by moneys of the estate of which, he is executor, as executor he can maintain no action against the party to whom he paid the trust fund.
    Appeal from an interlocutory judgment, sustaining demurrer to the complaint.

      Weed, Henry & Meyers, for app’lt;

      George H. Yeaman and Abraham Cohen, for resp’ts.
   Pryor, J.

Upon receivinga bond of from the defendants, the plaintiff, executor and testamentary trustee, paid to defendant Fanny Cohen $6,000 of the principal of a trust fund, in which her only interest was the income during life. Having made good the fund of which he was trustee by moneys of the estate of which he is executor, the plaintiff sues the defendants for $6,000 ; and the question on demurrer is whether, in any aspect of the complaint, he is entitled to a

As well by the summons as by the title of the cause in the complaint, the plaintiff purports to prosecute an individual and an execqtorial claim in one and the same action ; but that he may not sue in such double capacity is settled by authority. Hall v. Fisher, 20 Barb. 441; Lucas v. Railroad Co.. 21 id, 245. Assuming, as contended by plaintiff, that it appears by the snbstance of the amended complaint that he claims only in a single right, and that a representative one, neverthless he may not maintain the action on the bond, because it runs to him personally, and not as executor. Moss v. Cohen, 11 Misc. Rep. 184; 66 St. Rep. 332. Nor, indeed, can there be a recovery upon the bond in any cam-city, because given as indemnity against the consequences of an unlawful act, namely, a violation by a trustee of his fiduciary obligations,—an act, the illegality of which is conclusively presumed to be known to plaintiff. Lee v. Horton, 104 N. Y. 538, 541; 5 St. Rep. 714.

Apparently, the misappropriation of the trust fund by the plaintiff was a criminal offense. t Pen. Code, § 528, subd. 2. But, though otherwise, the diversion of the fund in contravention of the terms of the trust, and in breach of the plaintiff’s legal duty, was an act which it wasMot lawful to induce by a'promise of indemnity. Forsyth v. Woods, 11 Wall. 484.

Hpon this point, we are content with the argument of the learned judge in disposing of the case on demurrer to the original complaint. Moss v. Cohen, 11 Misc. Rep. 184, 187 ; 66 St. Rep. 332.

The plaintiff insists, however, that independently of the bond on the facts as recited in the amended complaint, he is entitled to-relief, upon the theory that, as executor, he sues to recover for the estate he represents a fund wrongfully diverted into the hands of .the defendants. If the action be to restore to the $12,000 trust fund the $6,000 paid to defendants, a twofold defense is obvious: First, that the action may not be maintained by the plaintiff as executor, but only by his successor trustee, in whom is vested the legal title; and, secondly, that the $12,000 trust fund has been replenished, and is now entire and intact. But, contends the plaintiff, the $6,000 which made good the trust fund was taken from the assets of the estate he represents, and the action is to recover from the defendants the $6,000 so diverted from the general moneys of the estate; to which the sufficient answer is that the defendants have neither received any part of this $6,000 of the general assets, nor is it shown that they were privy to its appropriation to replace the sum they got of the trust fund. Both in Wetmore v. Porter, 92 N. Y. 76, and Lee v. Horton, 104 id. 538; 55 St. Rep. 714, the defendants held money belonging to the estate. Here the defendants have nothing of the trust fund, because it is intact, nor of the general assets, because of these they never received a dollar. The plaintiff must himself repair the devastavit he has committed upon the estate by appropriating the $6,000 in reinstatement of the trust fund, to which, we repeat, the defendants were not privy; and if, as an individual, he may not reimburse himself by recourse to the defendants, it is because the transaction between him and them, being unlawful, is incapable of supporting a promise of indemnity, either express or implied.

Judgment affirmed, with costs, and without leave to further amend.

Bischoff, J., concurs.

Daly, C. J.

(dissenting).—From From the allegations of the complaint, all of which are by the demurrer, it appears that the plaintiff, Balph Moss, and David and Sophia Moss, were executors under the will of Solomon D. Moss, who left surviving him h'is widow, the said Sophia Moss, and several children, including the defendant Fanny Cohen, then married to the defendant Jacob Cohen, and this plaintiff and his coexecutor David; that by the will the whole estate, after paying certain legacies, was to be sold by the executors, and the proceeds invested by them, and the income paid to the widow for life, and after death the income of $12,000 was to be applied to the use of the defendant Fanny during her life, and upon her death the said principal was to be distributed equally among her children. It also appears from the complaint that, when the will was offered for probate, the defendant Fanny gave notice that she would contest it upon the ground, among others, that the sum of $12,000, the income of which she was to enjoy after her mother’s death, and the principal of which her children were to receive after her death, she did not regard as sufficiently assured to her and them ; that in consideration of her making no contest, and permitting the will to be proved, and letters testamentary to be issued to the executrix and executors, the latter, for the purpose of assuring the application of said fund to her benefit and that of her children, should pay over to her, from the funds of the estate; $6,000, and receive her and her husband’s bond for the application of said sum to her use and her children’s use, as mentioned in the will, and give a mortgage on real estate of the deceased to secure the application of the balance of said $12,000 to the same use. It appears that the agreement was carried out, the will admitted to probate, and letters testamentary issued; that the executors paid over to the defendants $6,000 out of the funds of the estate, and received from them a bond, a copy of which is annexed to the complaint, and delivered the mortgage upon the real estate of the deceased; and that in so doing the executors were advised and believed that they were acting lawfully, and, in taking the bond from the defendants, were advised and believed that they were receiving adequate security for the application of said $6,000 to the purposes specified in said will, so far as the rights of the defendant Fanny and her children were concerned. This took place in the year 1866, the bond being dated October 10, 1866. It also appears that the executors and executrix entered upon the performance of their duties, and so continued down to September, 1891, when the widow of the testator died, and until November, 1892, when one of the executors, David Moss, died, leaving the plaintiff, Ralph Moss, sole surviving executor, and all of the other children of the testator still living. The defendants, Fanny Cohen and her husband, have several children entitled to receive the principal sum of $12,000 at her death. They commenced proceedings before the surrogate to remove the plaintiff as trustee, and to require him to account for the said fund. He deposited the" whole sum of $12,000 in the Farmers’ Loan & Trust Company for the purpose of showing that the trust fund of said children was in no jeopardy, and the application to remove him was denied; but he resigned as trustee, which resignation was accepted upon his accounting for the trust funds, and the said trust company was appointed in his place. Upon his accounting as trustee, he credited himself with 'the payment of the $6,000 to the defendant Fanny ; but this payment was disallowed, upon the objection of the defendant and her children. The allegation of the complaint is that the $12.000 deposited in the trust company was made up with the money of the estate; and the complaint demands judgment against the defendant and her husband upon their bond, for the recovery of the $6,000 advanced to them.

From these admitted facts, it appears that the executors advanced to the defendants in 1866, out of the funds of the estate, the sum of $6,000, and that this action is brought by the surviving executor to recover it. Leaving out of view the form of security delivered by the defendants as the executors at the time of making such advance, the plaintiff, as executor, would be entitled to recover for the estate the money so advanced, “whether the action be regarded as one to recover money loaned, or to reclaim money illegally disposed of by the executors, or upon the contract." Lee v. Horton, 104 N. Y. 533; 5 St. Rep. 714. As was said in that case, all of the parties dealing v^ith. the fund knew it to be the subject of a trust, and-not capable of alienation, and that its trust character followed it into the hands of any person receiving it with knowledge of the facts; and the estate has not been made good in any way for the sum so alienated. The particular fund of $12,000 deposited with the trust company, as appears by the complaint, has been made up from the funds of the estate, which is therefore still the creditor of the defendants for the money advanced to them. The plaintiff also claims to recover by virtue of the bond executed by the defendants to tlie executors on the receipt of the $6,000. This bond runs to Sophia Moss, executrix, and Ralph Moss and David Moss, executors, of the last will and testament of Solomon D. Moss, deceased, and is payable to them and their legal representatives or assigns; and its condition is that the obligors shall indemnify and save harmless the said executrix and executors and their legal representatives from and against the repayment of the said sum of $6,000 to any person or persons who may be entitled under and by said will to the same. It is alleged in the complaint, and admitted by the demurrer, that this bond was executed by the defendants upon an agreement by them to gi ve a bond for the application of the said $6,000 to the use of the defendant Fanny and her children, as mentioned in the will, and was-taken by the executors in the belief that they were receiving adequate security for such application, so far as the rights of the defendant Fanny and her children were concerned. It thus appears that the instrument was not intended as a bond of indemnity merely, but as security for the estate, and the application of the money to the purposes of the trust. It was made to the executors, describing them as such; but, if it had been made to them as individuals, it could be enforced for the benefit of the estate, if it were given and received for the security of the estate. The instrument is not conclusive that it was given to the executors for their individual benefit only. In a case where a bond and mortgage was given to one described as administrator, but sued upon by the assignee of his personal representatives, it was held that such an action upon it might be maintained, as all but the description in the premises indicated a conveyance to him for his own use and benefit; but it was also held that it was open to the defendant to aver and prove that the mortgage was given to the administrator in his representative capacity, as the mortgage itself was not conclusive that it was given to the administrator as his own property. Renaud v. Conselyea, 5 Abb. Prac. 346. It is competent, therefore, for the plaintiff to prove, as he has averred, that the bond in this case was -given for the benefit of the estate, and is therefore the property of the estate, and enforceable by the surviving executor. As the case comes up upon a demurrer, all of the questions which might be litigated under a denial of the averments of the complaint are out of the case, for the allegations of the complaint are uncontroverted. There seems to be but one cause of action, for the recovery of but one sum ; and the joining of the plaintiff in his individual as well as his representative capacity, as party plaintiff, if improper, is not objected to by the demurrer. Upon the merits, a defense to the recovery of the $6,000 advanced to the defendants out of the funds of the estate, seems to be wholly unconscionable. If it prevails, the defendant Fanny Cohen would receive and be allowed to retain $6,000 in cash, in addition to the income of $12,000 provided by the will, to the detriment of the estate and the other parties entitled to share in it. This injustice mav be averted by the j udgment claimed under the allegations of" the complaint.

The judgment sustaining the demurrer should be reversed, the •demurrer overruled, and judgment entered for the plaintiff.


author: Bookstaver, J.

text:
    Mary A. Hecht, App’lt, v. Joseph M. Hecht, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 16, 1895.)

    1. Pleading—Complaint—Separation.
    In an action for separation, the plaintiff may omit from the complaint all reference to alimony, and not prejudice her right to claim it if she succeeds in the action, provided she asserts her demand for it before the entry of judgment.
    2. Separation—Alimony.
    The complaint for a separation is a sufficient notice to the defendant that a demand for alimony will be made.
    Appeal from an order, denying a motion to punish defendant for contempt of court in not paying alimony, as directed in a final judgment.

      Henry Schmitt, for app’lt;

      William H. Klinker, for resp’t.
   Bookstaver, J.

The summons and complaint were served upon the judgment was by default on his failure to appear or answer. The complaint demanded judgment for a separation from the bed and board of the defendant, and that the custody of the children be awarded to the plaintiff, and for the costs of the action. The judgment and decree entered provided for the payment of alimony. None was demanded in the complaint. The motion to punish the defendant for contempt for failing to pay the alimony adjudged was denied, upon the ground that the judgment awarding it was unauthorized, under Code, Civ. Proc. section 1207, as it was beyond the relief demanded in the complaint. The demand for alimony, however, is not an essential part of the cause of action. As described by Bishop, it is merely an “appendage ” of the action (section 351, 6th ed.) ; or, where it enters into the final decree, it is “ a mere incident of the judgment.” Forrest v. Forrest, 25 N. Y. 501. It need not be fixed when the judgment dissolving the marriage is entered, providing the right to have it subsequently determined is reserved in the judgment. The plaintiff may omit from the complaint all reference to alimony, and not thereby prejudice her right to claim it if she succeeds in the action, providing she asserts her demand, for it before the entry of the judgment. . “In fact, the orderly conduct of the cause would require the delictum of the husband to be first established by the verdict of the jury or the finding of the court or referee before an inquiry into the allowance for alimony could be properly entered upon. Galusha y. Galusha, 138 N. Y. 272, 281; 52 St. Rep. 359. Such was the practice approved by the chancellor in Cooledge v. Cooledge, 1 Barb. Ch. 77.

In Park v. Park, 18 Hun, 466 ; affirmed, 80 N. Y. 156, it was urged that the judgment should have contained no award o‘f final alimony, because no notice of the application had been served on the defendant. It was held that inasmuch as the- defendant was sued by service of the summons alone, and neglected to appear, he was not entitled to any further notice. The court there asserts that the only' restriction is that the judgment cannot exceed that which is demanded in the complaint. In affirming this judgment, the court of appeals says :

“ The objection that'the court had no jurisdiction to decree alimony because no complaint demanding alimony was served is not well taken. * * * Service of a copy of the decree was sufficient; and, as it does not appear that the judgment exceeded the demands of the complaint, no injustice was done.

As before shown, it is not necessary to demand alimony in the ■complaint, as it is a mere incident of the judgment; and, as such, we think the complaint for a separation was sufficient notice to the defendant that a demand for alimony would be made. The defendant, having defaulted, was not entitled to notice of any further proceedings in the action. The final decree was served upon him, giving him notice thereof. The defendant now claims he is unable to pay the alimony awarded. This may be presented for consideration at a rehearing of the motion at special term.

The order of the special.term should be reversed, and a rehearing on the merits allowed, with costs" and disbursements of appeal to the plaintiff.

All concur.


author: Per Curiam.

text:
    Fannie M. Bedlow, Resp’t, v. Sarah A. Stilwell et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Dower—W iiarves.
    A widow is dowable in a wharf owned by her husband, as appurtenant to the fee of the adjacent street.
    Appeal from an interlocutory judgment, entered on a decision of the special term, and from a final judgment entered on the report of a referee, awarding plaintiff dower.

      George W. Stephens, for app’lt;

      William A. Duer, for resp’t.
   Per Curiam.

In Bedlow v. N. Y. Floating Dry-Dock Co., 112 N. Y. 263; 20 St. Rep. 707, which was brought by the husband of the plaintiff to recover possession of the property in which dower is sought to be" recovered by this action, it was held that he had a legal estate in the pier, which could be recovered in an action of ejectment. It is familiar law than an action of ejectment will not lie for an easement or a right in gross. The case cited necessarily holds that the plaintiff’s husband had a legal estate in this pier, which, had he remained its owner until his death, would have descended'to his heirs. A widow is entitled to dower in an estate of inheritance of which her husband was seised during marriage. Every estate in lands, except such as are determined by the death of the holder, leases for years, an estate upon the life of another in an estate of inheritance, and descends to the heirs subject to the widow’s right of dower therein. 1 Rev. St. p. 754, § 27. Under the facts found, which are supported by the evidence, and the decision above cited; the plaintiff’s husband had an estate of inheritance in the pier, and she is entitled to dower therein, which is shown by the opinion of the learned trial justice, which covers the case; and the judgment should be affirmed on that with costs.

The opinion of Mr. Justice Ingraham'at special term is as follows :

This action is brought by plaintiff to recover dower in an interest in a certain dock in the city of New York, of which it is claimed her husband died seised. It appears in the year 1806 Henry Rutgers was the owner of certain premises abutting on the East river at the foot of Montgomery street, in the city of New York; and on the 28th of November in that year the mayor, etc., of the city of New York granted to said Rutgers a piece of land between high and low water mark, abutting upon the property owned by him, which piece of land was particularly described upon the plan or map which was specifically referred to in said grant. By a separate provision in the grant the said Rutgers agreed to build on the south side of the premises conveyed a good, sufficient, and firm wharf, pier, or street, of seventy feet in breadth continuous to the East river, or harbor of said city, also distinguished on said map as “ Front street.” Rutgers complied with his covenant, and built the street, which thereby became a street. He leased said premises, and subsequently the lessees, with the consent of the municipal corporation, erected a pier extending from the south side of said street into the East river. The upland upon the west of Front street was subsequently sold by plaintiff’s husband and his cotenauts, in which conveyances, plaintiff joined; leaving the only premises owned by the plaintiff’s husband, in which plaintiff could claim that she had a right of dower—the right to the use of—on the east side of Front street, and this wharf so erected by the tenants under the lease made to them by Rutgers. Alfred Bedlow, plaintiff’s husband, was the owner of one undivided sixth interest in this wharf right, as devisee or heir-at-law of the said Rutgers, and the question is whether or not this was an interest to which the plaintiff’s right of dower attached.

By the Revised Statutes (1 Rev. St. p. 740, § 1) it is provided that “ a widow shall be endowed of the third part of all the land whereof her husband was.seised of an estate of inheritance at any time during the'marriage.” “And the terms real estate and lands as used in this chapter shall be construed as co-extensive in meaning with lands, tenements and hereditaments.” Id. p. 750, § 10. The terms “lands, tenements, and hereditaments” are generally construed to include all lands and interest in lands, corporeal or in-' corporeal, which would descend to an heir-at-law; audit would seem to follow that if this interest of plaintiff’s husband was an interest, in land of which he'was seised, and which would descend to his heir-at-law, plaintiff’s right of dower attached. The interest that the plaintiff had in this pier has, I think, been settled by the court of appeals in the case of Bedlow v. Dry-Dock Co., 112 N. Y. 264; 19 N E. 800. That was an action brought by plaintiff’s husband, with his cotenants, to recover the possession of this pier, and it was decided that the plaintiff and his cotenants were entitled to such possession. In the opinion deciding this question the interest that the plaintiffs had was quite exhaustively discussed. It was there held that the deed from the city to Rutgers gave to the grantee all the land between high and low water mark necessary to establish a street and wharf in the harbor; that the terms of the grant expressly contained land lying between high and low water mark, extending from the grantee land bn the north to the harbor on the south; and that the plain purpose of the grant was, among other things, to enable the grantee to construct a wharf on the land granted, accessible by water at all times from such harbor, and which should form the extreme southerly line of the city at that place. It was also held that this right to build and maintain a wharf would carry with it the right to collect wharfage, and the right to unobstructed access to the wharf over the water of the harbor, and the Rutgers thereby acquired the right, not only to the use and enjoyment of the premiees conveyed, and of all easements connected therewith, but also the right to make all such erections and improvements thereon and additions thereto as should contribute to his profitable enjoyment; that he could lawfully make new erections upon the land conveyed, or additions to those already there; that he could also extend and improve the wharf so as to increase its facilities to build a pier attached thereto, provided that they obtain the consent of the city therefor; and ■that the building of the wharf or pier by Rutgers’ tenants inured to Rutgers’ benefit, and, upon the determination of the tenancy, Rutgers was vested with the title of any structure remaining on the demised premises as a fixture annexed to the freehold. It follows from this that Rutgers was the owner of the fee of the street built by him upon his lands under the covenant contained in the grant before mentioned, which, of course, was subject to the public use. He, however, owned something more than the bare naked fee of a piece of land dedicated to the public use, as he was also entitled to the wharfage of the wharf or pier on the south side of the street, and that right was one that the city could not deprive him of without compensation. And upon the building of the wharf by "his tenant, with permission of the city, that wharf became appurtenant to his fee of the street, being a mere extension of the right of wharfage that he had upon the wharf erected on the south side of the street. And I think it clearly follows from the whole opinion of the court of appeals in the case before cited that the interest of-the plaintiff in this property was clearly within the statutory definition of “lands,” and that the plaintiff’s husband was seised of, and in possession of, one-sixth thereof. The elaborate brief presented by counsel for the defendants would appear to be rather in the nature of an application to review the decision of the court of appeals in the case before cited, than to apply the principle established by that decision to the questions here to be determined. I think it clearly follows, applying the principles established by the court of appeals in the Becttow (Jase, that plaintiff is entitled to dower in the one-sixth interest of her husband in the property in question, and that-she is entitled to judgment accordinglythe decision and judgment to be settled on notice.


author: Putnam, J.

text:
    In the Matter of Judicial Settlement of the Accounts of Stephen Brown et al., as Trustees, etc., of Abraham Wing, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Will—Oohsteuctiox.
    Where a remainder is bequeathed, the enjoyment oí which is postponed, time enters into the substance of the gift, when-its existence depends upon a contingency that may or may not happen; but, where the only contingency is a death certain to occur, and the legacies are known and fixed, a postponement clause shóuld be regarded as relating only to the period of actual enjoyment.
    2. Same.
    Where a will evinces an intent to make a direct gift to legatees, a direction for payment after the happening of a certain event does not prevent its vesting at the death of the testator.
    3. Same.
    Where there is in a will a bequest to several children, who become vested with the property on the death of the testator, said children, being so vested, take distributively, unless a contrary intent on the part of the testator appears in the will.
    4. Same.
    The will, in this case, was so construed as to give the grandchildren of the testator the income of the residuary estate, after the payment of interest under the trust estate ceased, and, on the death of either representative or next of kin, to succeed to their rights.
    Appeal from a decree of the surrogate settling the accounts of the trustees.

      Edwin R. Sanford (Charles A. Blair, of counsel), for app’lt Withington;

      Edgar T. Brackett, for app’lt Ella W. Sharp;

      Louis M. Brown (A. D. Wait, of counsel) for resp’t Dwight Merriman.
   Putnam, J.

We are called upon to review the decree of the surrogate of Warren county stating and- settling the accounts of Stephen Brown and Dwight Merriman, trustees under the will of Abram Wing, deceased, in which decree the surrogate gave a judicial construction to the provisions of said instrument. The will bequeathed to Frances A. Wing, wife of the testator, his mansion house and lot, and certain personal property therein, during the time she shall remain his widow, and also an annuity of $3,000; to his daughter Mary W. Merriman, a life estate in a farm in Michigan, with remainder to her children; and the rest of liis property to his executors, in trust for the uses and purposes in the will mentioned. The instrument contained the following provisions:

“ Fourth. I hereby authorize and direct my executor to apply and appropriate the avails and proceeds of said property and income therefrom tó the uses and purposes following, to wit: 1st. To pay my funeral expenses and all my just debts. 2nd. To pay the above-mentioned annuity to my wife. * * 3rd. To fur■nish whatever money may be necessary, in the discretion of my executors, for the reasonable care and support of my sister Mary Atm Wing, from time to time, as she shall need the same, and also to pay her funeral expenses. 4th. To pay over all the balance of the income and increase of my estate, except the expenses of the execution of this trust, including taxes and all other legal charges thereon (which are to be first paid), annually, until the death or marriage of said Frances A., to my said daughters Mary W. Merriman and Ella W. Parker, share and share alike, for their own use and benefit, respectively, and in case of the decease of either of said daughters during the widowhood of said Frances A., as aforesaid, then and in such case to pay the half share of said income to the children of such daughter which would have belonged and been paid to the deceased daughter, had she survived ; and, in case of the death of both of said daughters during the widowhood of' said Frances A., then such income shall be paid and belong to the children of said daughters, respectively, one-half of said income to the children of Mary W., and the other half to the children of Ella W., from and after the death of each of said daughters, respectively. Fifth. 1 direct my executors, on the' death, or, if she shall marry, then on the marriage, of said Frances A., to convert said mansion house and lot, and any other real estate remaining undisposed of, if any, into personal property, so that my whole estate shall, become personal property, and, if my sister Mary Ann shall then be living, to set apart the sum of ($5,000) five thousand dollars therefrom, and invest the same as a fund, out of which, and the income therefrom, my executors shall provide for her support and maintenance during her lifetime, as above directed, and funeral expenses; and whatever may not be used and appropriated for that purpose I give and bequeath as follows: If my daughters shall be both living, one-half to each of them; if one daughter only shall be then living, one-half to her and the other half to the children of the deceased daughter; and, if both daughters shall be deceased, then one-half to the children of one,daughter and the other half to the children of the other daughter, and the balance (after deducting said $5,000), and the whole if said Mary Ann shall not survive the death or marriage of said Frances A., shall be divided into two equal parts, share and share alike, by my executors, and be disposed of as follows: 1st. If neither of my said daughters shall be then living, one of said half parts shall be paid to the children of said Mary W., and the other half to the children of said Ella W. 2nd. If one of said daughters shall be then living, and the other deceased, then one of said half parts shall be paid to the children of the deceased daughter, and the other half part shall be invested and kept invested by my executors during the lifetime of such surviving daughter, and the income therefrom shall be annually paid over to her, and on her decease the principal shall be paid over to her children. 3d. If both my said daughters shall be then living, then one of said half parts shall be set apart for and assigned to the children of Mary W., and kept invested by my executors during her lifetime, and the income thereof paid over annually to said Mary W., and on her decease the principal of such half part shall be paid over to her children ; and the other half part shall be set apart for and assigned to the children of Ella W, and kept invested by my executors during her lifetime, and the income thereof paid over annually to said Ella W., and on her decease the principal of such half part shall be paid to her children. It being my intention and will that my said daughters shall have and enjoy absolutely for their own property during their lives, respectively, each one-half of the whole income of my estate from the date of my decease (subject, however, to the provisions and bequests in favor of my wife and sister, and all taxes, the expenses of executing, the trusts herein created, and all other legal charges, and also exempting the real estate and use thereof devised to said Mary W. and her children), but no part of the principal (except said $5,000, or the - balance thereof which may remain after the decease of my sister Mary Ann), and that the principal (except said $5,000, or the balance thereof unexpended, and said devises in fee) shall be equally divided between the children of said daughters absolutely for their own property, subject, however, to the above-provided life estate in the same,—one-half to the children of Mary W., and the other half to the children of Ella W. And the receipts of said Mary W., and Ella W., respectively, for such income, shall be a sufficient discharge and voucher to my executors.”

Testator died on the 13th day of June, 1873, leaving surviving him his widow, Frances" A., and a daughter, Mary W., wife of Dwight Merriman, and Tracy D. Merriman, Nellie W. Merriman, (now Ella W. Sharp), and Howard L. Merriman, children of said Mary W. and Dwight Merriman ; also his daughter Ella W. Parker, and her two children, Frederick T. and Frank W. Taylor. All of said children were born before the execution of the will. The questions submitted to us pertain exclusively to the one-half of the estate bequeathed to Mary W. Merriman and her children. Tracy D. Merriman, one of the children of said Mary W., died intestate, never having married, on January 19, 1880. Mary W. Merriman died June 10, 1892, and her husband, Dwight Merriman was appointed temporary administrator of her estate. Howard L. Merriman, another child of said Mary W., died August 4,1893, and is represented by William H. Wellington, as administrator. Hence, of the family of Mary W., appellant Ella W. Sharp, her daughter, and Dwight Merriman, her husband, only remain. The surrogate determined that on the death of testator the three children of his daughter Mary took a vested interest in the principal of one-half of the estate, and that one-third of the net income thereof, after the death of said Mary W., belonged to said Ella W. Sharp, one-third to Withingtón, as administrator of Howard L. Merrirnan, and one-third to Dwight Merrirnan, individually, as father and next of kin of Tracy W. Merrirnan, deceased. The appellant Sharp contends that under the provisions of the will the principal of the estate bequeath to the children of Mary W. will not vest until the death of Mary W.; that she, said appellant, as survivor of the children of Mary W., will take the whole of said principal; that the income in the will directed to be paid to the children of Mary W. in consequence of the death of Tracy and his mother, after her death, was payable to said Ella and her -brother Howard, and on his death all of said income belonged to her.

It will be seen by the above-quoted provisions of the will that the legal estate of the trustees ends, as to the one-half part of the estate bequeathed to Mrs. Merrirnan and her children, with the life of the widow and the daughter Mary. On the termination of these lives the trustees are to divide the estate, and their legal interest therein ceases. Hence, subject to the estate of the trustees under the will, there is a remainder not bequeathed to them, and which, unless vested in the grandchildren on the death of the testator, remained, during the continuance of the estate of the trustees, unvested. In re Tienken, 131 N. Y. 391; 43 St. Rep. 184; Stevenson v. Lesley, 70 N. Y. 512; Goebel v. Wolf, 113 id. 405; 23 St. Rep. 176. There are certain welLsettled principles which it is proper to bear in mind at the outset of our investigation. One is that the law favors the vesting of estates. A remainder is not to be considered as contingent in any case where it may be held vested consistently with the intent of the testator. Moore v. Lyons, 25 Wend. 119—144. But, while the law favors the vesting of legacies as soon as possible after the death of a testator, the intention of the deceased, as deducible from the language and provisions of the will, must be carried out. Bowditch v. Ayrault, 138 N. Y. 222-229; 52 St. Rep. 330. It has also been held that where .a remainder is bequeathed, the enjoyment of which is postponed, time enters into the substance of the gift, when its existence depends upon a contingency that may or may not happen; but where the only contingency is a death certain to occur, and the legacies are known and fixed, a postponing clause should be regarded as relating only to the period of actual enjoyment. In re Young. 145 N. Y. 535-539; 65 St. Rep. 342; Bowditch v. Ayrault, 138 N. Y. 229, 230; 52 St. Rep. 330; Moore v. Lyons, 25 Wend. 143, 144.

It is urged by appellant that in the will under consideration there is no gift by testator to the children of his daughters, but by the direction .to the executors to pay, or to divide and pay, on the death or marriage of his widow, and on the termination of the life estate of the mother, and hence that the principal of the estate bequeathed to the grandchildren will not vest until the death of Frances A. Wing. But the rule invoked by the appellant is not inflexible, and is subordinate to the primary rule of construction that the intent of the testator, as deducible from the whole will, shall govern. Goebel v. Wolf, 113 N. Y. 405-412; 32 St. Rep. 176; In re Young, 145 N. Y. 538 ; 65 St. Rep. 342; Bowditch v. Ayrault, supra; In re Seebech, 140 N. Y. 246; 55 St. Rep. 377. It becomes our duty, therefore, to examine the language and provisions of the will under consideration, with a view of arriving at the intent of the testator as to the vesting of the estate bequeathed to his grandchildien. After a careful consideration of the latter part of the fifth clause of the will, and the other provisions and directions therein contained, and bearing in mind the principle above adverted to,—that a remainder is not to be considered as contingent in any case where it may be construed to be vested consistently with the intent of the testator,—we have reached the conclusion that each of the three children of Mary W. Merriman living at the death of testator took a vested remainder in his or her share of the estate expectance upon termination of the trust estate. We think the provisions in the will indicate an intent by the testator that the bequests to his grandchildren should not be contingent and dependent upon their surviving the widow, but should vest on his decease. In the first place, the position taken by appellant that the will under consideration contains no gift of the principal of one-half of his estate to the children of his daughter Mary, except by a direction to divide at a future time, is not entirely correct. In the latter part of the fifth clause the testator says:

‘‘ It being 'my intention and will that my said daughters shall have and enjoy absolutely for their own property during their lives, respectively, each one-half of the whole income of my estate from the date of my decease, * '* * and that the prificipal k * * shall be equally divided between the children of said daughters absolutely for their own property,, subject, however, to the above-provided life estate in the same.”

This language imports a present and direct gift of the said principal to his grandchildren, subject to the life estate of their mothers therein, although the enjoyment of such principal, under other provisions contained in the will, is postponed until the termination of the estate of the trustee. The clause above quoted has, we think, the same effect as if the testator had said:

“ I will, devise, and bequeath the income of said principal sum to my daughters, one-half to each during their respective lives; and, subject to such life estates, I will said principal to their children, to be equally divided between them.”

If this construction of the language of the instrument is correct, the case is within the principle that, where a will evinces an intent to make a direct gift to legatees, a direction for payment after the happening of a certain event does not prevent its vesting at the death of the testator. In re Mahan, 98 N. Y. 372-376; Warner v. Durant, 76 id. 133-136; Moore v. Lyons, supra.

But assuming that the construction placed upon the language of the will by appellant,—that it contains no gift to the children of his daughter Mary, except by the direction to his trustees to-pay at a future time,—yet we think the instrument indicates the intent of the testator that the estate bequeathed to his said grandchildren should vest on his decease. In the first place, the language used by the testator, above referred to, in which he declares his will that his said grandchildren shall have the principal of one-half of his estate, subject to the life estate of their mothers, evinces an intent to make a present and absolute gift to them. Certainly the language used by the testator is not inconsistent with the vesting of the remainder on his death in his said grandchildren, and hence the estate bequeathed to them should not be deemed contingent. Moore v. Lyons, supra. As we have seen, the intent of the testator as to the vesting of his estate, as collected from the provisions of the will, must be carried out. ' In the clause above quoted he declares his intent. The declaration is contained in one sentence. It refers to all his estate. It is his intent, he says, that his daughters shall have—each one-half—the income of all his estate, subject to the provisions in favor of his wife and sister, but no part of the principal, which principal shall be equally divided between the children of said daughters absolutely for their own property, subject to the life estate of their mothers. This language indicates an intent to make a direct and absolute gift to the children of his daughters. The life estate of the daughters commenced on the death of the testator. From his death they were entitled to receive the income of his estate, except such portion as was bequeated to the widow, but not the principal, which the testator "gave to the children of his daughters. The appellant construes the said provision as if it provided that the said principal-shall be equally divided between the children of said daughters absolutely for their own property, provided they survive his widow. Such a construction is unauthorized. The testator does not declare his intent to give the principal to the survivor or survivors of the children of his daughter Mary at the time of the distribution of his estate, but rather to make a present gift of such principal to said children. It will be noticed that, if the position of appellant is sustained, if the three children of Mary W. Merriman should die before the widow the one-half of the estate set apart for said Mary and her children would remain undisposed of on her decease; also, under the will, had Mary died before any of the children, each would have been entitled to one-third of the income of one-half of the estate, although the vesting of the estate was contingent upon them surviving the widow. In other words, they would have received the income of a principal not vested in or owned by. them, and which they might never own. . The fact above referred to,—that the testator declared his intent to be that the principal of his estate should be divided among his grandchildren, and did not provide that it should go to the survivor or survivors at the time of distribution—is most significant. Andrews, J., in Goebel v. Wolf, (page 413, 113 N. Y., and 23 St. Rep. 176) said:

“There is nothing on the face of the will to indicate that the testator contemplated the death of any of his children during minority, or that any of them might not take the equal one fourth share of his estate on the final division. The gift of the ultimate estate is not, in terms, to his children living at the time of the division, or to the survivors of his children, but the division is directed to be made among ‘my children, share and share alike.’ Words of survivorship were not necessary, if the gift, by construction of law, was to the children who should be living at the time time of the division. But it would have been very natural that words of survivorship should have been inserted to emphasize Ms intention, if the testator had intended that only children surviving at that time should be entitled to his estate.”

Those remarks of the learned judge apply to this case. Here the testator declared his intent and will to be that the principal set apart should be divided equally between the children of his said daughters absolutely for their own property, subject to the life estates of the mothers. There are no words of survivorship. The gift is not made to those children at the termination of the life of the widow, but to the children of the daughters, — apparently among the children living at the time of his death. We have already called attention to the doctrine stated by Finch, J., in Re Young, 145 N. Y. 539; 65 St. Rep. 342, that:

“Time may fairly be said to enter into the substance of a gift when the existence of such a gift depends upon a contingency which may or may not happen; but where the only contingency is a death certain to occur, and the legatees are known and fixed, it is more natural to regard a postponed division as relating to the period of actual enjgyment, where there are other words in the will evincing an intent to make the gift.”

So, in this case, there are words indicating an intent of the testator to make a present gift, as we have seen. The legatees are known and certain. The only contingency claimed to prevent the vesting of the estate is the death of the widow, which is cer-tain to occur.

Many late cases decided in our court of last resort might be cited which tend to support our views in regard to the vesting of the estate in question in the grandchildren of testator. In Goebel v. Wolf, supra, the will gave an estate, consisting of real and personal property, to trustees, providing that one-half of the income thereof be paid to the wife during her life, and after some provisions unnecessary to state, contained the following direction to the trustees: •

“Immediately upon the arrival of my youngest child at the age of twenty-one years, in case my said wife shall not then be living, to divided all my estate, real and personal, and the accumulation of interest, equally among my children, share and share alike, after deducing all advances made as above quoted to any of my children, so that each of my children' shall have and receive an equal share of my estate.”

There was in the will no gift, in terms, to the children _ of the testator. It appeared that one of the four infant children living at the time of testator’s death had since died, under age, and without issue. The court held that the gift was not to the children as a class, but each, on the death of testator, took a vested remainder in one-fourth of the residuary estate, dependent upon the termination of the trust, and that the share of one who died, with the accumulation of interest therefrom, descended to his heirs or next of kin, according to the nature of the property; also that such descendants were entitled to any income-that may hereafter accrue during the trust period. In Bowditch v. Ayrault, 128 N. Y. 222; 52 St. Rep. 330, the will devised the residue of the estate to the trustee and directed him—

“As fast as practicable to divide two-thirds of said residuary estate between all the children of my brother John Ayrault and my sister Mary Smith, widow, of Sparrow Smith, and of my deceased brothers Nicholas Ayrault, Roswell Ayrault and Lyman Ayrault, and of my deceased sister Emily Griffith,who may be living at the time of my decease, and to the descendants of such of'said children as may be deceased when said estate, or any part thereof, is distributed;-said two-thirds of said residuary estate to be divided between all such children and their descendants equally, share and share alike; all the children of each deceased person to receive, collectively, the portion to which their parent would, if living at such distribution, be entitled under this provision.”

In his opinion Judge Peckham says:

“The gift is, however, in substance, to the children living, at his decease; and we think it then vested, subject to be divested by the death of any child before distribution, and by the substitution of his or her descendants, if any were left. If there were no such descendants, then the property remained vested in the child, and upon his death, formed part of his estate, subject to be disposed of as the law or his will provided.”

There was no gift to the chidren of the testator, or to their descendants except by the direction to the trustee to divide the two-thirds as above specified. The gift was to the trustee, who held under the will, the legal estate. It will be observed that in the case cited—the bequest being to the children of the testator and descendants of those who may have died, to be divided •equally, share and share alike, between them—the court, in effect held that each of such children, on the death of the testator, became seised of a share of the estate, which on his death before distribution, formed a part of his estate. In Re Seebeck, 140 N.Y. 241; 55 St. Rep. 377, the testator devised an estate to his sister for life, with remainder to her children in equal shares. It was held that the children became vested on the decease of testator, distributively, and not as a class. See, also, In re Tienken, supra; In re Young, supra; Moore v. Lyons, 25 Wend. 119; Stevenson v. Lesley. 70 N. Y. 512.

Counsel for appellánt Sharp urges that upon the naming of a class as “children," in a devise or bequest without words indicating that they are to take in severalty, as referring to the individuals composing the class, by name, numbers, or providing that the gift shall .be “ divided equally,” “share and share alike," or similar expression, or other provisions of the will indicating an intent that they are to take distributively they take asa class, and the survivor, at the time the gift vests, takes the whole, and cites many authorities to sustain his contention.

If the conclusion reached by us is correct, — that the will in question evinces the intent of the testator to make a gift to the children of his daughter Mary, not contingent upon their surviving the widow, but a gift vesting on his decease,—the authorities so cited by the appellant aré not applicable to this case, nor are they in conflict with the late case to which we have called attention. The gift to the children of Mary W. Merriman vested on the death of testator. The three then surviving took the estate. The estate being so vested in them, they necessarily took it as tenants in common or distributively. It requires no citation of authority to show that where there is in. a will a bequest to several children, who become vested with the property on the death of testator, said children, being thus vested, take distributively, unless a contrary intent on the part of the testator appears in the will. No intent appears in the will under consideration that the children of Mary W. should take as a class, or otherwise than contributively. See In re Seebeck; Bowdith v. Ayrault; Goebel v. Wolf, supra.

The remaining question to be considered is as to the disposition of the income of the estate since the death of Mary W. Merriman, and during the lifetime of the widow. The appellant Sharp claims that she was entitled to one-half of such income until the death of her brother Howard L., and since his death to the whole. The administrator of Howard L. claims one-half of the income since the death of his mother. If our views above expressed are correct, on the death of Abraham Wing the three children of Mary W. Merriman became each vested with an undivided third part of his residuary estate, the possession of which, by the provisions of the will, was. postponed until the termination of the widowhood of Frances A. Wing and the life estate of their mother, and subject to the estate of the trustees for the period of the lives of said Frances A. and Mary A. It is important to clearly understand what estate the testator gave to his grandchildren. The provisions of the will leave a little doubt as to his intention in that regard. He declared it to be his intent and will that his grandchildren should have the principal of his estate absolutely for their own property, subject to the life estates. In other words, on his death this principal, from which the income was to be paid Mary W. Merriman during her life, was vested distributively in her .three children, subject only to her life estate, or subject to the payment of her interest and income on the principal so vested in the grandchildren during her life, and subject to the estate of the trustees. On the payment of the income to Mary W. ceasing on account of her death, the several grandchildren, or their representatives or next of kin, being vested with the principal, in the language of the will, absolutely for their own property, were and are as much entitled to the income accruing thereon as they will be, on the death of the widow, to the principal itself. They would each have been entitled to such income from the time of the death of testator, had it not been for the provisions of the will giving such income to the mother during life. After she ceased to draw the income, each of her children, or his or her representatives, remained the absolute owner of one-third of the principal, subject to the trust estate, and entitled to the interest accruing on such principal. We think it necessarily follows from the conclusions above arrived at that each of said grandchildren, being vested with one-third of the one-half of the residuary estate loft by the testator, subject to the trust estate, and to the payment of interest thereon to Mary W. Merriman during her life, on that payment ceasing, being the absolute owner of such one-third, became entitled to the income derived therefrom, and, on the death of either representative or next of kin, succeeded to their rights. See Goebel v. Wolf, supra.

It follows that the decree of the surrogate should be affirmed, with costs against the appellants.

Mayham, P. J., concurs in result; Herrick, .J, concurs.


author: Dykman, J.

text:
    Patrick P. O’Hehir, Resp’t, v. Middletown-Goshen Traction Company, App’lt.
    (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Release—Receipt in full.
    In an action for the price of work and labor done, a receipt-in full, not purporting to be in full of all demands, is not evidence of a final settlement.
    Appeal from a judgment in favor of plaintiff.
    The bill rendered and the receipt referred to in the opinion are as follows:

      “Nov. 13th, 1894.'
    “ Rockwell Construction Company, to W. F. Merritt, Dr„

    “To excavating and blasting rock cut at Owen’s, $448,25, as per contract at $1.25 yd., 358% yds., as per Engineer Smith’s measurements.”

      “Nov. 13th, 1894.
    “ Received'from Rockwell Construction Company, rock cut Owéns, four hundred forty-eight 25-100 dollars, in full of the above account.
    W. F. Merritt."

      O'Neill & Royce (Henry W. Wiggins, of counsel), for app’lt;

      F. V. Sanford, for resp’t.
   Dykman, J.

This is an appeal by the defendant from a judgment entered in the county court of Orange county upon the verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial upon the minutes of the court. The action was for the recovery of $522.20 for a balance claimed to be due from the defendant to the plaintiff for services in blasting rock in a cut along the line of the defendant’s road. There was a dispute respecting the amount of work done, and the defense of payment was also set up by the defendant. There was testimony introduced on both sides which tended to show the theories of each party, and the question of fact involved was submitted to the jury by the county judge. The defendant complains of the charge respecting the legal effect of the receipt, but the complaint is without cause The receipt was for the money called for by the bill upon which it was rendered, and is not a receipt in full. The testimony respecting the circumstances under which ^t was given is contradictory, and was submitted to the jury. The judge refused to charge that the receipt was evidence of a final settlement, and that was right, in view of the evidence. It must now be assumed that the jury-found in favor of the plaintiff upon the question in dispute, and, there being evidence to sufficiently support such a finding, we cannot disturb the verdict upon that ground.

We find no errors of law in the case, and the judgment and order denying the motion for a new trial should be affirmed.

All concur.


author: McAdam, J.

text:
    Eugene O’Sullivan, Pl’ff, v. New York Elevated Railroad Company et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed November 25, 1895.)

    Parties—How brought nr.
    An amended or supplemental complaint is not necessary to bring in as plaintiff the successor in interest of plaintiff who died pending action.
    A motion to revive the action in the name of the personal representatives of plaintiff.

      Evarts, Choate & Beaman, for motion;

      Davies & Rapallo, opposed.
   McAdam, J.

The sole plaintiff has died, and the cause of action, which is in equity, survives and continues. Plaintiff’s administrator and the committee of the property of his widow and his heirs at law are his representatives and successors in interest-in respect to the premises involved in the litigation, known as “Nos. 92, 148-152 Pearl street." The Code (section 757) provides that upon the death of a plaintiff “ the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest.” The proposed plaintiffs make the application themselves, by petition duly verified by one of them familiar with the facts, and none of the allegations of the petition is denied or controverted. No answer to the petition has been made, except by the demand that if the action he revived it must be upon a supplemental bill, to which the defendants may take issue upon the alleged devolution of interest. The question raised came up in Garvey v. Owens, 115 N. Y. 671, which was an action by the owner of real property to compel specific performance of an agreement to purchase. The sole plaintiff died before trial, and his sole heir at law was substituted, and the suit directed to be continued in his favor. Upon the trial defendant’s counsel objected to proceeding, on the ground that by section 544 of the Code it was necessary for the plaintiff to have obtained leave to serve, and to have served, a supplemental complaint alleging the facts in regard to the death of the former plaintiff. The objection was overruled, and exception taken. Defendants then objected to the admission of evidence as to the death of the sole plaintiff, and the devolution of title to the substituted plaintiff. This objection was also overruled, and exception taken. The general term held that under section 757 “ there was no necessity for serving a supplemental or amended complaint,” and a judgment in favor of the plaintiff for the relief demanded was sustained. 9 St. Rep. 227. On affirming the judgment the court of appeals wrote no opinion. The question as to the necessity of a supplemental complaint was a vital one. and the court of appeals must have approved of the ruling of the court below on that point, for the former court has several times held that, where it has affirmed a judgment without opinion, it must be assumed that it has approved of the opinion of the court below upon every question necessary to a decision of the case. Higgins v. Crichton, 98 N. Y. 626; In re Woolsey, 95 id., at page 141; Hobson v. Hale, id., at page 610. The defendants urge that, if the application is granted without requiring supplemental pleadings, the order substituting the petitioners would be conclusive as to the question "of their title, citing Isham v. Davidson, 3 Thomp. & C. 745; Powers’ Case, 13 N. Y. Supp. 599 ; Smith v. Zalinski, 26 Hun, 225; affirmed, 94 N. Y. 519. In the case last cited there was not, as here, the death of the sole plaintiff, but a transfer of his interest after the action was begun. ' It does not hold that in the event of the substitution of a plaintiff the court must order supplemental pleadings, but that a transfer or devolution of plaintiff’s interest after issue joined “is usually a formal matter in which the defendant has no concern, except to be protected from a double claim. In all other respects the vital issues of the litigation remain unchanged, and they only are to be tried.” And that “on the hearing (of the motion to substitute) the applicant must establish his ownership, and the defendant may detfy it. If there be doubt about it, the court may deny the motion, and order the action to proceed, irrespective of any such transfer. If there be no doubt about it, or the defendant by default or silence admits it, the court may order the substitution ; and even then, if justice or safety requires, it may order an amendment of the pleadings, ‘or otherwise,By this process the defendant has ample chance to understand and contest the new ownership. If on the motion he raises the issue, the court may decide it, or order such supplemental pleadings, beyond the mere substitution, as to carry the contested issue over to trial.” The application is not under section 544 of the Code, for leave to serve a supplemental bill, but under section 757, which gives the petitioners the undeniable right to revive the action where, as in this instance, their snccessorship in title to the property by operation of law is undisputed. Under section 121 of the former Code, a supplemental complaint was necessary only in cases where the motion to revive was made after the expiration of one year from the plaintiff’s death. Greene v. Bates, 7 How. Prac. 296. This provision was carried into the new Code in 1877 (section 757), bnt was expunged two years afterwards (Laws 1879, p. 607); so that the course of legislation puts at rest any question as to the established practice. The only questions presented for determination are whether the plaintiff has died, and has interest in the cause of action passed to the. petitioners. If the defendants at the hearing had tendered an issue upon the subject, by disputing the facts alleged, it might have been tried and decided then and there, and it is upon this theory that the order is held to be conclusive at the trial. Underhill v. Crawford, 29 Barb. 644; Washoe Tool Manuf'g Co. v. Hibernia Fire Ins. Co., 7 Hun, 77; affirmed, 66 N. Y. 613 ; the principle being that if a party has had his day in court and been given an opportunity of litigating an issue or contesting facts alleged, and fails to do so, he cannot ■afterwards complain of the adjudication made against him, or be •again permitted to open or question the matter so adjudicated. The defendants having raised no issue, but impliedly conceded the facts alleged, they failed to show any necessity for a supplemental bill. It is therefore difficult to conceive why an order to which the petitioners have proved themselves entitled as of right should be withheld simply because the law might impress upon it at a subsequent stage of the litigation a result which follows nearly every judicial determination almost as of course. To order a supplemental complaint as to facts undisputed, and perhaps indisputable, would be to sacrifice substance for form and encourage delay,—an undesirable object to all well-intending litigants. Presumptively, the defendants cann.ot he “ injuriously affected or exposed to the dangbr of another recovery.” Washoe Tool Co. v. Hibernia Fire Ins. Co., 7 Hun, 77 ; affirmed, 66 N. Y. 613. And, if a state of facts exists which would overcome the prima facie case required to be made, the same should be presented to the court in opposition to the motion to continue, or subsequently. Obviously no harm can come to the defendants from granting the petitioners’ application The motion must be granted, and without prejudice to the proceedings, already had.


author: Gayhor, J.

text:
    In the Matter of an Application by Hugh Hirsh for Writ of Mandamus.

      (Supreme Court, Queens Special Term,

      Filed November 23, 1895.)

    1. Elections—Ballots—Objections.
    Elections officers may not, by their mistakes, or even by their misconduct, disfranchise voters; if there is any exception to this rule, it arises out of the insurmountable obstacles of a particular case.
    3. Same.
    An objection to the form of the ballots cannot be taken after they have been voted.
    3. Same.
    A mistake by the clerk in preparing the ballots under section 86 of the election law is not marking them for identification within the meaning of section 114 of said law.
    Application for a writ of mandamus.

      Henry A. Montfort, for motion;

      Harrison N. Moore, Elihu Root, and Benj. F. Tracy, opposed.
   Gayhor, J.

By section 56 of the election law all nominations for the office made by party conventions are known as “party nominations.” In this respect it puts a mere local, isolated party ■organization upon the same footing as a state party organization, with its gradation of local divisions or sections from state down to town. It applies, however, only to such organized parties, state and local, as polled at the last preceding election the number of votes required to give it a status to make nominations, viz. 10,000 votes in the case of a state party, and one per cent, of all the votes ■cast in the locality in the case of a local party. By section 81 it is provided that all nominations shall be printed upon one ballot, in parallel columns, and that the ticket, or list of candidates, of ■each party, shall be put in a separate column. Thus each party, state or local, now has its separate column, whereas formerly it had a separate ballot. The Gleason, or “ Regular Democratic Party," as its legal name is, is a local party in Queens county. It nominated by convention candidates for the county offices, for .senator and assemblymen, and also for the city offices of Long Island City, which is within the county. It made no other nominations. By section 86 it was the duty of the county clerk to prepare the ballots for the election. This he had to do from the ■certificates of nominations filed in his office in the case of county and lesser local nominations, and from the certificate to him by the secretary of state of all nominations for offices to be voted for by the electors of the whole state, or of any district of the state larger than a county. Sections 58, 60. When the county clerk came to deal with the said local nominations of the said Gleason party in the making up of the ballot, he was confronted with the question whether he should place them alone in that party’s column, or whether he should fill the column out in respect of all the other offices, with the nominees of another kindred party organization, if there was such. The said Gleason party was in unity of political principles or faith with the Democratic party of the state. It was not in unity of political organization with it only because of differences as to local men and measures. This court, at both special and general term (In re Mitchell, 81 Hun, 401; 63 St. Rep. 121), had, prior to the last two preceding general elections, decided, in substance, that such unity in political faith was enough to entitle the said local party, in the preparation of the official ballots, to have the blank spaces upon its ballot filled out with the nominees of the state Democratic party. The county clerk . this year followed these decisions, and associated the Democratic state and judiciary nominations with the said Gleason local ticket, thus making a complete ticket for its column. This could not do any harm, while it enabled a large number of voters to vote as they desired without difficulty. This court is now asked to require by mandamus the board of county canvassers to exclude from their canvass and count all votes cast for candidates of justices of the supreme court by means of the said Gleason column.

The decisions of this court above mentioned had been made in the general spirit of. the new election law, to make intelligent and ■discriminate voting easy. The title of the election act of 1890, which, with amendments, makes our present election law, was, in part, “An act to promote the independence of voters at public elections.” A contrary decision would have construed our improyed election law to be, not a method of making independent voting easy, but a scheme to make indiscriminate straight party voting easy, and discriminate voting difficult and perplexing. The election law was changed at the last session of the legislature by doing away with separate ballots for'each ticket of- nominations, and putting all tickets of nominations upon one ballot, in separate ballots for each ticket of nominations, and putting all tickets of nominations upon one ballot, in separate columns, as already stated above ; and also by requiring each ticket to be headed by an emblem, in addition to the former requirement of a party name-only. Section 56. Since this change the supreme court in the first judicial department has decided that the nominees of a local party must stand alone in that party’s column upon the ballot. It is said that the new requirement of an emblem makes such a substantial change that this decision had to follow. It may not be easy to see how the mere coupling of an emblem with the name at the head of the ticket makes a different case; nor can the rule of this decision result in lessening the number of party columns, as-has been stated. But it is not necessary to make a choice between those conflicting decisions. It is enough for the decision of the-case now under consideration that the law casts upon the county clerk the duty of combining allied nominations, and of thereby making up the tickets and the ballots from the. certificates of nominations; and that he did make them up, and the voters used them. The state cannot take unto itself the providing of the only ballots which the voters may use, and then disfranchise the voters for having used the ballots which it furnished. It has always-been, and is yet, a cardinal rule in the law of elections that election officers may not, by their mistakes, or even by their misconduct, disfranchise voters; and, if there be any exception to this-rule, it arises out of the insurmountable obstacles of a particular case. Paine, Elect. § 490; People v. Wilson, 62 N. Y. 186. But our present election statute provides for the settling of all questions like that now before the court in respect of ballots in advance of the election, and thereby precludes the raising of such questions after election. By section 86 the county clerk is required to have sample ballots open to inspection and objection five days, and facsimilies of the official ballots four days, before election. By section 88 any voter may show by affidavit to the supreme court or a justice thereof that an error or omission has-occurred in the printing of the sample or official ballots; whereupon such court or justice is required to hear the case, and cause the same to be corrected. The statute thus provides for the establishing of the legality of the ballot in these respects before-election by itself giving due notice and opportunity to every one-to be heard concerning such errors or mistakes. I think the legality of the ballot in these respects is thus conclusively established. In re Union El. R. Co. of Brooklyn, 112 N. Y. 61 ; 21 St. Rep. 498. And in the present instance a voter did apply to this; court to have the Democratic state and. judicial nominations removed from the said Gleason ticket, but the court held that they were lawfully placed there, and denied the application. The result of following these provisions of the statute must be just as conclusive upon the public and upon every one as are, for instance, statutory proceedings for the closing of a public highway. 1 Rev. St 518, § 81.

1 have thought it best to dispose of the case on the merits, though I think the petitioner is not in a position to be heard upon the merits at all. The ballots having been voted, the canvassers had no power to reject them as void. Such power is given to them only in the case o.f ballots (section 104) “ from which there shall have been erased any device, figure or word, or upon which there shall be written any word or words other than the name of the candidate, as above provided ” (viz. in the column provided for that purpose). The canvassers, therefore, having no power to reject the ballots in question, this court has no power to order them to do so. The object of an election count is to ascertain the prima facie result from the ballots which have to be counted, and a court may interfere only to cause this result to be reached in due order. All questions lying deeper than this may only be heard and decided in an action to test title to office.

The contention of the learned counsel for the petitioner that the ballots were marked for identification within the meaning of section 114, by reason of the filling out of the Gleason column with the nominees of the Democratic party in the way above stated, 1 fail to understand. All of the ballots being the same, it cannot be said that they were marked to be identified or distinguished. Moreover, the meaning of the statute is that the marking of ballots for identification must be by the voters themselves. The mistakes of the county clerk may be attributed to them. But the case of ballots alleged to be marked for identification is carefully provided for by the statute. The canvassers were obliged to count them, but they have to annex them to their return, and then this court is tgiven jurisdiction to determine whether they were marked bv the voters for the purpose of identification, and, if so, to have them deducted from the totals by the canvassers of election. Section 118. The ballots not having been challenged and returned as marked, the court cannot pass upon them in that respect. People ex rel. Bradley v. Shaw, 133 N. Y. 493: 45 St. Rep. 866.

The motion is denied.


text:
    Silas W. Heath, Resp’t, v. Glens Falls, Sandy Hill and Fort Edward Street Railway Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Negligence—Contributory.
    One, placed suddenly by another in a position of peril, is not to be deemed guilty of contributory negligence, though not exercising the best judgment in. the emergency.

      2. Appeal—Exceptions.
    A general exception at the end of the trial to the court’s refusal to charge in the language stated, and to his modification of the respective requests as stated, is unavailing.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from- an order denying a motion for a new trial.

      Edward W. Douglass, for app’lt;

      James H. Bain, for resp’t.
   Putnam, J.

This is an appeal from a judgment in favor of the plaintiff, entered in the clerk’s office of Warren county on the 20th day of June, 1885, on a verdict of a jury, and from an order denying a motion on the minutes of the court to set aside the verdict, and for a new trial upon exceptions, and because the-verdict is contrary to the evidence. Plaintiff brought the action to recover for the loss of the services, comfort, and society of his wife, Jane Heath, and for expenses for medical services, by reason of certain injuries inflicted upon her by reason of the alleged negligence of defendant. Plaintiff and his wife were passengers on a car of defendant’s on the night of August 24, 1894, at w'hich time a collision occurred between said car and another running on the same track in opposite direction. The night was dark, and there" were no lights. Plaintiff's wife, on seeing the impending collision, arose for the purpose of escaping from the car, was thrown out? and injured. For such injury she commenced an action against defendant and recovered a judgment. On the appeal from that judgment we considered, on evidence substantially the same as-that in the case under consideration, the questions as to the negligence' of defendant, and the alleged contributory negligence of plaintiff’s wife, and determined that, on such evidence, those questions were properly submitted to the jury by the trial judge, and that the verdict of the jury could not he disturbed. See 86 Hun, 620. 66 St. Rep. 869. Hence it will not be necessary for us at this time to consider those portions of the brief of the learned counsel of appellant devoted to the discussion of the questions raised by him as to the alleged failure of plaintiff to show actionable negligence on the part of defendant, which caused the injury-to Jane Heath, and her alleged contributory negligence. .An opinion in the case, therefore, seems unnecessary. We only deem it proper to consider briefly some of the exceptions taken by the defendant on tbe trial to the charge of the judge.

It is claimed that the trial judge erred in charging as follows:

“ The law is that, where a defendant is liable for damages caused by its negligence, it is not excused because the plaintiff or the person injured did an act which, upon further reflection, is seen to have been unwise or unnecessary, provided that act was caused by the peril in which the person was placed, or seemed to be placed; that is to say, if there is an impending collison between two cars, or seems to he, a person is not obliged to sit in his seat and await the result. He must act according to his own nature. If he is frightened, he will act as a frightened man will act. And you are not to hold a person who is placed by the negligence of another in imminent peril to that cool and dispassionate action which you, in looking back upon the event, shall judge to have been wiser than the action which the person frightened and placed in peril, and acting under the impulse induced by that peril, did actually perform. So that if you find that Mrs. Heath jumped from this car, or moved towards the side of the car, you will consider whether her acts were induced by the negligent acts of the defendant. If they were induced by the negligent acts of the defendant, then the defendant is not excused because she acted unwisely. If they were induced solely by her own foolishness or stupidity — if they were utterly unjustifiable or inexcusable under the circumstances — then, of course, the fault is her own, and the consequence must fall upon her, or upon her husband in this action, and cannot be placed upon the defendant.

—And also in refusing to charge as requested, to wit:

“ That any act on the part of plaintiff’s wife done under the impulse of a sudden emergency, or the excess of fear or excitement, and contributing to the injury, must be imputed to her as negligence, unless such act was such us a person of ordinary prudence would have done under the same circumstances.”

We think the portion of the charge above quoted fairly states the well-settled doctrine that one placed suddenly by another in a position of peril is not to be deemed guilty of contributory negligence although not exercising the best j udgment in the .emergency. Buel v. Railroad Co., 31 N. Y. 314; Roll v. Railway Co., 15 Hun, 496: 80 N. Y. 647; Voak v. Railway Co., 75 id. 320 ; Coulter v. Express Co., 56 id. 585; Twomley v. Railroad Co., 69 id. 158. But, were it otherwise, no exception appears to have been taken by the appellant to the above-quoted portion of the charge. JSTor was any valid exception taken by the defendant to the refusal of the judge to charge as requested by it in the seventh request, above quoted. The general exception of defendant at the end of trial was to the court’s refusal to charge in the language stated, and to his modification of the respective requests as stated. Such a general exception, it is well settled, is unavailing. Haggart v. Morgan, 5 N. Y. 422; Harwood v. Keech, 4 Hun, 389-392; Schelley v. Diehl, 13 Wkly. Dig. 228 ; Pinedov. Germania Smelting- and Refining Worlcs, 22 id. 21. We think the court did not err in declining to charge as requested by defendant in the seventh request, or in either of the requests made by defendant, ..and referred to in the brief of its counsel. The trial judge had fairly instructed the jury as to the law applicable to the case and upon the subjects referred to in such requests, and his refusal to instruct the jury in the particular language requested cannot be deemed error. Holbrook v. Railroad Co., 12 N. Y. 236. But, if otherwise, there was, as we have seen, no valid exception taken by the defendant to either of the refusals of the judge to charge as requested. We have carefully examined and considered each exception to the rulings of the court in receiving and excluding evidence adverted to by counsel for appellant, and conclude that neither of the rulings so excepted to requires a discussion or a reversal of the judgment.

Judgment affirmed, with costs. All concur.