text:
    The People, Resp’t, v. William F. Rathbone, App’lt.

      (Court of Appeals,

      Filed April 9, 1895.)

    1. Free pass—Notary public.
    A notary public is a public officer within the meaning of the provision of § 5, art. 13 of the State Constitution.
    2. Same.
    A notary public, who has rightfully received, before the Constitution went into effect, a free pass for transportation over a railroad, is prohibited, by this section, from thereafter using it while he continues to hold such office.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order which affirmed an interlocutory judgment in favor of plaintiff entered upon an order overruling a demurrer to the complaint.

      Lewis E. Carr, for app’lt; T. E. Hancock, attorney-general, for resp’t.

       Affirming 65 St. Rep.

   Gray, J.

This action was brought to have the office held by the defendant as a notary public, in and for the county of Albany, in this state, adjudged to have been forfeited, for the violation by him of that provision of the Constitution of the state, which prohibits a “public officer or person elected or appointed to a public office under the laws of this state” from receiving “any free pass, free transportation, franking privilege, &c., &c., from any person or corporation,” or from making use of the same. The constitutional provision referred to is contained in section 5 of article 13 of the Constitution of this state, which was adopted at the last general election and which went into effect on January 1st, 1895. The defendant demurred to the People’s complaint, for not containing facts sufficient to constitute a cause of action; and the question for our determination is whether a notary public fills a public office and is a public officer within the meaning of the constitutional provision.

The argument for the appellant proceeds upon the theory that it could not have been intended to include such an office within a constitutional prohibition, which, obviously, was designed to guard against the mischief of a person, engaged in the discharge of the functions of a public office, being influenced in his action by a consideration for the corporations giving to him free passes or privileges. That a notary public is a public officer, I do not think to be open to serious doubt. He is one of the “public officers of this state,” concerning whom chapter Y of the Revised Statutes treats, and he is therein placed “in the class of judicial officers.” The office of a notary public must be filled by appointment of the governor of the state, with the consent of the senate. The appointee, before he enters upon the duties of his office, is required to take and to file an oath to support the Constitution of the United States and of the state and to faithfully discharge the duties of his office. (R. S. chap. Y, art III.) His term of office is fixed by law and in chapter III of the Revised Statutes are contained “general provisions concerning the powers and duties of certain judicial officersamong whom are specified notaries public. All their powers are defined by law and their acts, within their legitimate sphere, have force and solemnity, because having the express authorization and sanction of statute. The very designation of “notary public” indicates a relation, which the incumbent of the office sustains to the body politic. It is impossible to regard him as other than a public officer and we are brought to the consideration of the proposition of the appellant, that his could not be one of the public offices intended to be included within the constitutional provision in question.

I concede the difficulty, indeed the impossibility, of seeing any reason why a notary public should be prohibited from accepting any privileges or favors from corporations. On its face the proposition seems absurd and it is not easy to see the wisdom, or necessity, of incorporating in our Constitution a prohibition, so unnecessarily comprehensive in its terms ; when it would have been possible to specify the public officers who were probably aimed at. But it is plainly to be read thei’e and for the very reason that it was possible to designate the public officers, who should be restrained from accepting the favors of corporations, we are, perhaps, the less able to disregard it. In the construction of constitutional provisions, the language used, if plain'and precise, should be given its full effect and we are not concerned with the wisdom of their insertion. As adopted by the People the intent is to be ascertained, not from speculating upon the subject; but from the words in which the will of the people has been expressed. To hold otherwise would be dangerous to our political institutions. The Constitution is the basis upon which rests that complicated social organization called the state. It must be presumed that its framers understood the force of the language used and, as well, the people who adopted it. Hot only were the revisers of ' the Constitution chargeable with knowledge as to who, under our laws, were regarded as public officers; but it is to be presumed that they used the words “public officer or person elected or appointed to a public office under the laws of this state,” with some, if not a direct, reference, to the classification made in the Revised Statutes. It is not necessary to suppose that they had in mind notaries public, but that, knowing of the existence of the various classes of public officers created by statute, they intended, .by the use of general words, to include all persons holding offices in the gift of the People. The latitude allowed in the construction of legislative acts is out of place, and would be unwise, when interpreting the fundamental law. Legislation aims at arranging the mechanism of the state for the benefit of its members and the question of intention, necessarily, is often of great importance and must be open to judicial inquiry; but the constitution, which underlies and sustains the social structure of the state, must be beyond being shaken, or affected, by unnecessary construction, or by the refinements of legal reasoning. We may be compelled to have resort to such in the presence of contradictions, or of meaningless clauses; but not otherwise. I see no case here for surmising as to the possible or even probable, meaning of the section in question.' The People have plainly declared in precise and unambiguous words that no public officer shall receive or make use of a pass, and, within the territorial limits of the state, that command is enforceable, and it must be obeyed by every person who holds an office, which like the one before us, is public in its relations to the body politic, by reason of the mode of its creation and of the powers conferred and functions defined by the law. We are not to look beyond the instrument, for the purpose of ascertaining the mischief against which the clause was directed, and thus restrict its operation. The only assumption that we have any right to indulge in, is that it was made as sweeping in its terms, in order to prevent doubts and to obviate refinements of reasoning as to its application to particular cases, under the varying conditions of our political life. I cannot do better than, at this point, to append some forcible remarks made by two eminent judges of “this state. In People v. Purdy, 2 Hill, 35, Bronson, J., delivering the opinion of the court as to the construction of that clause of the Constitution which provides that “ the assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill creating, continuing, altering or renewing- any body politic or corporate,” said: These words are as broad in their signification as any which could have been selected for the occasion from our vocabulary, and there is not a syllable in the whole instrument tending in the slightest degree to limit or qualify the universality of the language. If the clause can be so construed that it shall not extend alike to all corporations, whether public or private, it may then, I think, be set down as an established fact, that the English language is too poor for the framing of fundamental laws which shall limit the powers of the legislative branch of the government."

In Newell v. The People, 7 N. Y. 9, Johnson, J., laid down this rule with reference to constitutional construction: “If * * * the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then the meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed; in such a case there is nb room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have the right to add or to take away from that meaning. This is true of every instrument, but when we are speaking of the most solemn and deliberate of all human writings, those which ordain the fundamental law of states, the rule rises to a very high degree of significance. It must be very plain, nay, absolutely certain, that the People did not intend what the language they have employed, in its natural signification, imports,-before a court will feel itself at liberty to depart from the plain reading of a constitutional provision.”

The further point that the defendant cannot be subjected to the penal consequences of this constitutional provision is untenable ; inasmuch as the public officer is prohibited from making use of a pass, as well as from, receiving one. It is no answer to say that the appellánt, having rightfully received a free pass for transportation over the railroad before the Constitution went into effect, cannot be prevented from using what is his property. It is doubtful whether it is to be regarded as property, in the true sense of the term. But that is of slight importance. As a privilege extended tó him by the corporation, the People may say to him that, while holding from them his public office, he shall not make use of this privilege. The provision was designed for the benefit of the public and had no other object than to do away utterly with the power of corporations to influence any public officer in the performance of the duties of his office.

For these reasons I think the order and judgment below should be affirmed.

All concur (Bartlett, J., in result).

Order and judgment affirmed.


source: Caselaw Access Project

author: Weller, S.

license: Public Domain

text:
    In the Matter of the Application for the Probate of the Alleged Will of Frederick Nolte, Deceased.

      (Surrogate’s Court, Queens County,

      Filed December, 1894.)

    1. Will—Undue influence.
    Where the will of a sick person is contrary to his previous declaration and fixed purpose, it is the duty of the court to scrutinize closely with a view of ascertaining whether the act was free, voluntary and intelligent.
    2. Same.
    The fact that the decedent has refused constantly his wife’s impor'tunings to make a will, and finally, within two hours of his death,- she gets him to make a will contrary to his repeated intent, cutting off all of. his , children, whom he loved de irly, and making her, who was already welj, provided for, the sole beneficiary of all.his property, establishes that he was influenced by her or was not in his right mind.
    Application for the probate of an alleged will.

      Ullo, Ruebsamen & Cochran, for proponent; Isaac P. Hubbard and John F. Ward, for contestants.
   Weller, S.

After a careful review of all the facts, and mature consideration I am satisfied the will in this case should not be admitted to probate. The decedent was a man 60 years of age, had been ill for a long time, exceedingly weak in body and mind, and died about two hours and a half after the execution of the will. He had Bright’s disease of the kidneys,—a disease which always, more or less, affects the mental capacity of its victim. He had suffered from it for several years, and during the last two weeks of his life he was a great sufferer. He had been married three times, having children by his first and second wives, but none by his third wife. His third' wife, the proponent of the will, is a woman of great mental and physical vigor ; has a keen appreciation of her own interests; and the proof shows she never neglected an opportunity to enhance her worldly possessions. The decedent bought real estate, the title of which was taken in the joint names of himself and his wife, valued at between $3,000 and $4,000, all paid for by him, and the whole title of which she gets by survivor-ship. She had also accumulated, unbeknown to the decedent, between $1,400 and $1,500. She had also in her own right a house in 127th street, New York city, worth $5,000 or $6.000. Now, between two and "three hours before his death, the decedent executed the alleged will giving to this wife, by whom he had no children, all of his property of every kind, nature, and description, cutting off his children without a cent, some of whom were quite young. From beginning to end the evidence shows that he was very fond of his children. Nothing had come between them to estrange him from them. On the contrary, it appears from the testimony that within one or two days of his death he declared his intention to treat his children all alike, as they were all equally dear to him. Mrs. Dorothea Adam testifies that the decedent frequently declared in her presence that he would not make a will; that his children were all alike dear to him. Frederick Bergmann, Sr., brother of proponent, testifies that on the 11th day of December, two days before he died, at the decedent’s request, he went to him, and decedent said “ he would not make his1 will, as all his children were the same to him; they were all as one to him, and that he would give them the same.” He further said : “My wife will get the house what is her own, and that is enough, and she will get a third besides.” Hugo Adam testifies that he was at the house of decedent at 8 o’clock on .the night of his death, and, about two hours before making the will, decedent said to witness : “ I want all my children to have the same if I should die or anything happened to me.” Other witnesses testify that he had frequently said, but a little while before his death, "that he wanted his children all to have the same, and that he did not intend to make a will.

Now, what was it that came between him and his children between 8 and 10 o’clock in the evening of the day of his death that should induce him to change the whole current of his intentions towards his children, and to get him to make a will cutting them all off without a dollar, and giving everything to his wife? This third wife, powerful, vigorous, mentally and physically, almost alone surrounding him during the last two weeks of his illness, gets all his property by this alleged will. Suspicion'at once attaches to a will giving to a person with such power and influence all that he possesses in this world, to the exclusion -of other beloved ones, and who were equally -the natural object of his- bounty. It was her duty, under the circumstances^ to clearly -establish that the will Was executed free from all influences, and was his intelligent, voluntary act. “ The rule is well understood that where the will of a sick person is contrary to his previous declarations and fixed purpose, it is the duty of courts -to scrütinize closely with a view of ascertaining whether the act was free, voluntary, and intelligent.” McLaughlin v. McDevitt, 63 N. Y. 213, and especially at pages 217, 219, 220. And “a change of previously expressed intentions, as bearing upon the allegation of undue influence in procuring a will, is an important circumstance.” Horn v. Pullman, 72 N. Y. 276. The sole beneficiary under the will (the third wife), from the testimony,- appears to have been constantly beseeching the decedent to make a will in her favor. Roman Adam testifies that about two or three weeks before his death the decedent said to-him: “ My wife is bothering me so much in regard to making a will, and I do not want to do it.” And the same witness testifies: “My wife is bothering me to make a will. I will not do it. My children are alike dear to me, and my wife is well enough off. She has got enough to live on; has her own house.” On the same page the same witness said that he was there at the house on the Sunday before he died, and, after Mrs. Nolte and the doctor went out of the room, the decedent said : “ I am very weak; I feel very weak, but I believe I will not make a will anyway. My children are all alike dear tome; I will not° make a will.” And the witness continued: Then his wife came in and he kept quiet.” On the cross-examination the same witness further testifies that decedent said, on November SO, 1883: “I do not know what it is; I have so much trouble. My wife is bothering me to make a will. My children are all alike dear to me. I do not want to make a will.” Frederick Bergmann, Sr., brother of proponent, testifies that decedent had very often said he would not make a will, and further said that his wife had very often asked him to make his will, but that he had refused and told her so. On the cross-examination the same witness further said that decedent stated : “ My time is nearly gone; I shall not stay long here. I will not make a will. One child is as dear to me as another. My wife has a house belonging to herself, and then she has one-third part. She is well taken care of.” I do not find in the minutes any denial by Mrs. Nolte herself that she had importuned the decedent to make a will as testified to by the witnesses. Thus we find the decedent constantly reiterating that his children were-all alike to him, and that he did not intend to make a will discriminating against them, and constantly resisting the importunings of this wife to make a will in her favor, down to within a few hours of his death. And yet, within two hours after the declaration that he wanted all his children to have the same if he-should die or anything happen to him, he makes a will giving everything to his wife, and cutting his children off without a dollar. Mrs. Nolte admitted to Dorothea Adam that she had “ tried hard to get her husband to make his will, but I .cannot get him to do so."

All this testimony throws around the document great suspicion. - But the mode and manner of securing its execution increases the suspicion that the will was forced from the decedent (while he was in a weak mental condition) by the beneficiary. She (Mrs. Nolte) sent for Mr. Howard to draw the will. She also sent for the witnesses, and she herself admits that she sent for the witnesses. Mr. Hugo Adam, whom Mrs. Nolte sent for, the scribe who drew the will, testifies that when he returned with Mr. Howard he asked her if he should go upstairs with Mr. Howard, and she said: “No; she would go up first, and give him fdecedent] some wine." This witness further testifies that she would not allow either Mr. Howard“or himself to go up until she had gone upstairs herself first, and given the decedent some wine; that she was gone upstairs ten minutes before she came down and allowed Mr^-Howard to go up; and that when Mr. Howard started to go up she stepped between him and Mr. Howard, and told him to “stay down stairs, and send up the witnesses as soon as they came.” Mrs. Nolte went upstairs with the scribe, and remained there all the time the will was being drawn and executed, and none of the family except Mrs. Nolte was in the room at the time of its execution. The will was immediately given to Mrs. Nolte, and the decedent never possessed it. In about two hours and a half the decedent died, and about half an hour afterwards Frederick Bergmann, Sr., brother of Mrs. Nolte, came to the house, and she exclaimed to him: “Mr. Nolte has made his will: everything belongs to me. I am saved.”

I am satisfied from the whole evidence that Mrs. Nolte exercised that great influence which she had acquired over him, and destroyed the decedent’s free will and agency, thereby making his mind subservient to her own, while he was in a condition so feeble as to make it necessary to give "him stimulants to enable her to carry out her scheme. Again, I am not satisfied that at the time of making the will,' about two hours before his death, the decedent had mental capacity sufficient to make a will. He lived but two hours and a half, and various witnesses testified that before the will was made he had rattling in his throat indicating the near approach of dissolution. And at the time that Mrs. Nolte told Hugo Adam to go for the scrivener the doctor said to him: “Do you think he has his senses?” The doctor himself has not been produced, and it is the duty of Mrs. Nolte to throw all light possible upon the mental condition of the decedent, and around the mode and manner of the execution of the will. Why does she not produce the doctor? The decedent was afflicted with a disease that sooner or later affects the mind. The decedent had refused constantly her importunings to make a will; and finally, within two hours of his death, she gets him to make a will contrary to his repeated intent, cutting off all of his children, whom he dearly loved, and making her, who was already well provided for, the sole beneficiary of all his property. I cannot believe that the decedent made this will uninfluenced by his wife and while he was in his right mind. The will must be rejected. Let a decree be entered accordingly. Probate denied.


author: Giegerich J.

text:
    Frank P. Perkins, App’lt, v. Brainard Quarry Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Brokers—Double employment.
    In an action against the vendor by a broker for his commissions for selling real estate, the defendant may show that the broker took upon himself incompatible duties and characters, or acted adversely to his interests.

      3. Trial—Dismissal of answer.
    It is error for the court to dismiss an answer at the trial.
    3. Same—Objection.
    An objection to evidence will not he considered, where it was not made until the answer was given and there is nothing to show that it could not have been made at the proper time.
    4. New trial—Newly discovered evidence.
    Where all the requirements are presented and the court is satisfied that the ends of justice will be promoted by allowing the moving party an opportunity to present the newly discovered evidence, the motion for a new trial will be granted.
    5. Same—Surprise.
    Surprise in relation to the rulings of the trial judge upon points of law affords no ground for granting such application.
    6. Same—Affidavits of jurors.
    The affidavits of jurors are not admissible to show that the jury disregarded the issue as presented and found the verdict upon another and different issue.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from two orders—one denying a motion for a new trial on a case and exceptions, and the other denying a motion' for a new trial on the minutes.

      W. T. Birdsall, for app’lt; Jacob Fromme, for resp’t.
   Giegerich J.

This action was brought by the plaintiff, as assignee of one Luman W. Johnson, for commissions alleged to have been earned by the latter, as a real estate broker, in procuring a purchaser to make an exchange of certain bonds for defendant’s real estate. The answer, among other things, sets up that about the time mentioned in the complaint,—i. e. on or about the 1st day of April, 1892,—Johnson was introduced to the president and one of the directors of the defendant corporation as being the agent of certain parties for the exchange of first mortgage bonds of the New York & Perry Coal & Iron Company for New York improved real estate; that Johnson refused to give the names or reveal the 'identity of the owners of said bonds; that Johnson stated to said president and director that said bonds bore interest at 6 per cent, gold, that the issue was $600,000, and that the interest was payable on the 1st days of May and November in each year, and that up to that time all interest upon said bonds had been paid when due, and that the accruing interest, due on May 1st, would be paid; that Johnson referred said representatives of defendant to one J. H. Davis, as to the value of the bonds, and also stated that the bonds, which were listed on the stock exchange, were quoted at 94-y-; that Davis referred the defendant’s agent to one Mr. Brouwer, who informed the latter that the interest upon the said bonds had always been paid, and that the interest which would become due on May 1, 1892, following, would be paid, as the company had the money to pay the same in its treasury; that Brouwer further said that the bonds sold on the exchange for 91, or thereabouts; that the property of the company, consisting of coal mines and blast 'urnaces, was in fine order, but that work had been stopped to build charcoal furnaces, which had been done at an expense of $250,000, which had been paid ; that a Mr. Havemyer and a Mr. Bloodgood had each bought large amounts of said bonds, which they held as an investment; that the works of the company were about to start up, and that they were in a first-class running order; that, in reliance upon the representations so made, the defendant’s president shortly thereafter had an interview with Johnson, to whom he said that defendant would exchange the property mentioned in the complaint, subject to mortgages for $150,000, for 70 of said bonds, and asked Johnson to disclose the name of the person for whom he was acting, which he still declined to do ; that thereupon a contract for the exchange was drawn up, and at Johnson’s request the name of Charles T. Galloway was inserted as the party who was to make the contract, Johnson at the same time saying that Galloway was not the real party in interest, but merely a dummy; that Johnson took the contract away to be executed by Galloway, but brought back another copy of the contract with the name of one Elihu Mitchell substituted for that of Galloway, and again stated that Mitchell was but a dummy, and declined to say who the real party in interest was; that, after the execution of the contract, the defendant learned that said representations as to the payment of interest on the bonds, and the purchase for investment, and the condition of the property, were untrue, and that the sale of said bonds alleged to have been made were fictitious sales, known on the stock exchange as “ wash sales’’; that Brouwer was the real party in interest in said contract, whose agent Johnson was, and that Mitchell was a cleric in his office ; that in an interview with the defendant’s president and Brouwer, upon the discovery of such false representations, it was admitted that the representations of Johnson were untrue in regard to payment of interest upon the bonds, and that thereupon the said contract was canceled ; that through its officers it informed Johnson that it relied Upon his representations aforesaid about said bonds, and would not, in any event, take said bonds in exchange if interest had been defaulted upon them, or if the interest thereafter accruing would not be paid when it became due; that in reliance of the representations of Johnson that said interest had been paid, and that it would be paid in the future, it made the said contract with Mitchell. The proofs taken upon the trial amply sustain the above allegations of the answer. It was proved, among other things, that the defendant’s president distinctly told Johnson that the defendant would not take any bonds unless they were live bonds,—bonds that could be used, and bonds that were paying their interest,—and Johnson replied that the bonds were listed bonds ; that they sold for 94-¡-; they paid 6 per cent, interest in gold; that the interest for the May coupons was already in the Farmers’ Loan & Trust Company’s office. These representations were denied by Johnson, but the jury, by their verdict, have credited the defendant’s version of the transaction.

The appellant contends that these proofs should not have been received, because the matters in respect thereto were not set forth in the answer; but no such objection was made at the trial, nor could it be successfully urged. It was also disclosed upon the trial, that Mitchell, who signed the contract for the exchange of defendant’s real estate, was not the real party in interest, but that his employers, Brouwer & McG-own, stockholders, were, and that he signed the contract at their request, without knowing with whom the contract was made.

Johnson, upon cross-examination, testified, without objection, that he was employed by Brouwer & McG-own to dispose of the 70 bonds mentioned in the contract, and then this question was put to him by defendant’s counsel: “ Q. What pay were you to have from Brower & McG-own ?” This was objected to, on the ground that there is no allegation in the answer that any payment was to be made by the defendant. The objection was overruled, and plaintiff’s counsel excepted to the ruling. The witness answered that he was to have 2% per cent., and that he disclosed this to the defendant’s president before the contract was signed. Counsel for the appellant insists that error is predicable of the admission of the evidence in question. The answer, it will be recalled, sets up that Johnson was the agent of the real party in interest, Brouwer. It was therefore proper, in view of this and other questions raised by the answer, to show that the agent took upon himself incompatible duties and characters, or acted adversely to the interests of the defendant. Carman v. Beach, 63 N. Y. 97, 100; Murray v. Beard, 102 id. 506, 508; 2 St. Rep. 466. The doctrine of these cases was recently reiterated by the court of appeals in the case of Knauss v. Gottfried Krueger Brewing Co., 142 N. Y. 70, 74; 58 St. Rep. 316, cited by appellant’s counsel, in which the court, through Peckham, J., at page 77, 142 JST. Y., say:

“In regard to the subject of the double employment, if it be of a nature whereby possibly the interests of the parties may be diverse, we agree that it cannot be upheld, if concealed from knowledge.”

The defendant’s president testified that Johnson never told him that Brouwer & McG-own had employed him to transfer or sell those bonds, or to get anything in exchange for them, and that he was to receive a commission from them. He further testified that he knew nothing about Brouwer & McG-own until the day that the deed was to be exchanged; and the jury, by their verdict, found that the fact that Johnson was to receive commissions from'both parties was not disclosed to the defendant.

It also appeared upon the trial that when the defendant ascertained that the statements made by Johnson were false, it abrogated the contract with Mitchell, and lie, on instruction of his employers, Brouwer & McG-own, consented thereto. Upon the rendition of a verdict in favor of the defendant, the plaintiff moved upon the minutes to set aside the verdict and for a new trial, which was denied, and subsequently another motion was made upon the grounds hereinafter stated, which was also denied, and from the orders entered denying said motions the plaintiff has taken this appeal. There were but three exceptions taken to the admission of testimony, one of which we have already considered, and the others we will consider hereafter. There was no except tian taken to the exclusion of any testimony, or to the judge’s charge.

After the plaintiff had rested, and the defendant had opened the case, the" former moved for judgment on the answer, which was denied, and plaintiff noted an exception. We are of the opinion that the motion was properly denied, as the facts stated-in the answer constitute a good defense. Besides, under the decision of the court in Moss v. Witteman, 4 Misc. Rep. 81 53 St. Rep. 71, it is error for the court to dismiss an answer at the trial.

Brainard, the defendant’s president, testified that he became acquainted with Johnson soon after the 1st day of April, 1892, and then he was asked by plaintiff’s counsel how and where he got acquainted with him, and to state just what the conversation was. This was objected to' on the ground that it was not allowable under the answer. The objection was overruled, and plaintiff’s counsel excepted to the ruling. The question was a proper one under the pleadings, and was merely introductory of the matter, set up as a defense, as the response thereto shows. Brainard was also asked this question:

“ Q. Did you have a conversation with ■ Mr. Brouwer in reference to the representations made to yon by Mr. Johnson in reference to the interest ? A. I did. Defendant’s Counsel: I object to that.”

The objection was overruled, and plaintiff’s counsel noted an exception. As it appears from the record that the question was not objected to until the answer had been given, and there being nothing to show that the objection, could not have been made, the objection should not be considered. 2 Rice Ev. p. 919, § 359, and citations; Baylies, Trial Prac. p. 200, and citations. Moreover, as no ground of objection was stated, the objection would have been disregarded, even if the question had not been answered. Baylies, Trial Prac. p. 201, and citations; Bergmann v. Jones, 94 N. Y. 51; Turner v. City of Newburgh, 109 N. Y. 301; 15 St. Rep. 93; People v. Murphy, 135 N. Y. 450, 455; 48 St. Rep. 426. But assuming, for the sake of argument, that the objection was sufficient in form, it is apparent that the evidence in question is pertinent to the defense set up in the answer.

. After the entry of the order denying the motion made upon the minutes to set aside the verdict and for a new trial, the plaintiff made another motion, at special term, on the settled case on' appeal, and on affidavits upon the grounds of surprise and newly-discovered evidence, which, after very careful consideration by the learned trial judge who presided thereat, was denied. To constitute a case for a new trial upon the ground of newly-discovered evidence, it must appear that the evidence has been discovered since the trial; that it could not have been obtained upon the former trial by the exercise of reasonable diligence; that it is material to the issue, and goes to the merits of the case, and not merely to impeach the character or credit of a former witness; that it is not merely cumulative; and that its character is such that it would probably have changed the result. When all these facts appear, and the court is satisfied that the ends of justice will be promoted by allowing the moving party an opportunity to present the newly-discovered evidence, the motion will be granted. Baylies, New Trials & App. 524, 525, and citations; Grah. & W. New Trials, p. 1021; Glassford v. Lewis, 82 Hun, 46, 48; 68 St. Rep. 4834. We think that, under the circumstances of the case as disclosed by the appeal book, and tested by the foregoing rules, the court below properly denied the motion for a new trial, and in doing so wisely exercised the discretion vested in it.

One of the grounds on which a new trial is asked is surprise in relation to the rulings of the trial judge upon points of law. This affords no ground whatever for granting the application. Giraudat v. Korn, 8 Daly, 406; Anderson v. Market Nat. Bank, 66 How. Pr. 8.

Another ground is that since the trial the appellant has learned that Brouwer & McGrown, after the execution of the contract, became convinced that they had made a bad bargain, and the value of the flats was not as stated, and appellant endeavored to show by their affidavits that there was a scheme on their part to relieve themselves from the obligations of the contract made in their behalf by their employe, Mitchell, and in the latter’s name, because they thought the bonds were of greater value than the property, and that, in consequence thereof, they induced the defendant company to cancel the contract, and sell the property to one Yan Schaick for less than it had agreed to sell the same to Mitchell; but Brouwer, who was called as a witness for the defendant, testified that his reason for desiring to cancel the contract was:

“We had intended to convey this property to individuals to whom we owed money, and where we had pledged these bonds; and the people declined to take the property, and we could not carry out our contract.”

He further testified:

“I never mentioned that to Mr. Brainard. I told him that the coupons would not be paid, and that I was willing to abrogate the contract on that ground, and that the representations which were made by Johnson were not true. * * * I told Mr. Brainard the company would not pay its interest; that the company would not pay, and did not pay; and that is true. The company is now in the hands of a receiver.”

In view of the contradictory testimony given by the witness at the trial, the court below held that a new trial could not be granted upon his affidavit and that of McGown, his partner. This ruling is amply supported by the authorities. In the case of Duryee v. Dennison, 6 Johns. 249, the witness had made statements inconsistent with his evidence, and Kent, 0. J., in denying the motion for a new trial, said “ that it would be productive of the most dangerous consequences if a verdict should be set aside because a witness had made a mistake in giving his evidence.” The principle of the decision in this case has been applied in numerous cases, among.which are Powell v. Jones, 42 Barb. 24 ; Carpenter v. Coe, 67 id. 411; and Nelson v. Neil, 12 Wkly. Dig. 161. The ruling finds further support in the fact that the alleged newly-discovered evidence, by reason of its contradictory nature, was of such a character that it would not have changed the result upon a new trial, if one had been ordered.

The record fails to disclose any evidence of collusion between the defendant company and Brouwer & McGown. The contract made by the defendant company with Van Sckaick was fully inquired into upon the trial, and it was shown that it was of a character entirely different from that which Johnson, plaintiff’s assignor, had been employed to effect; and therefore no recovery for commissions, by reason of it, could be had in this action. The motion is also based upon the ground that the plaintiff’s attorney, who was present at the trial, was suffering from ill health, and therefore unable to instruct counsel as fully as he might have done, and otherwise to protect his client’s interests. These statements, if unchallenged, would furnish no ground for the granting of a new trial, but,in this connection,the learned trial judge said:

There was no suggestion at the trial that the plaintiff’s attorney was unable to proceed. The plaintiff was represented by able counsel, and his interest was fully protected. Plaintiff’s counsel was present, and assisted at the trial.”

This clearly indicates that there was no surprise.

The jury were instructed to find for the plaintiff if they believed there was no representation as to the money for the May interest being in the trust company ; and, if they found that the defendant knew that Johnson, plaintiff’s assignor, was to get a commission from the other party, the verdict should be for the defendant. Affidavits were presented from several jurors “ that the jury did not take into consideration every question of double commissions or the representations of Mr. Johnson, but decided as they did solely because they believed the bonds offered were of little value, and that the defendants were parting with $220,000 worth of property for practically nothing.” Public policy forbids the introduction of jurors’ affidavits to prove anything which may have transpired in the jury room while consulting on their verdict. This rule excludes affidavits to show mistake or error of the jurors in respect to the merits, or irregularity or misconduct, -or that they mistook the effect of their verdict, and intended something different. Dalryrnle v. Williams, 63 N. Y. 361: Grab. & W. New Trials, p. 1432. This is not a case where the jury have by mistake announced a verdict different from that agreed to by them, but here it is sought to be shown by the introduction of the affidavits in question that the jury disregarded the issue as presented, and found the verdict upon another and different issue. This cannot be done under the rules above stated. For these reasons the judgment and orders appealed from hould be affirmed, with costs.

All concur.


author: Giegerich, J.

text:
    Frank P. Perkins, App’lt, v. Brainard Quarry Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Costs—Hew tbial on case.
    A motion for a new trial at special term after a trial by jury, based, among other things, “ on the settled case herein,” will be regarded as having been made “ on a case,” within § 3251 of the Code.
    Appeal from an order, directing the clerk to re-tax defendant’s costs awarded to it in denying a motion for a new trial.

      W. T. Birdsall, for app’lt; Jacob Fromme, for resp’t
   Giegerich, J.

This action was brought for the recovery of broker’s commissions alleged to have been earned by plaintiff’s assignor, and resulted in a verdict in favor of the defendant. Upon the coming in of the same the plaintiff made a motion for a new trial upon.the minutes, which was denied. Thereafter another application was'inade at special term, based on the settled case herein, and affidavits and papers theretofore served, upon grounds of surprise and newly-discovered evidence, which was denied, with costs. The clerk having taxed the costs at $10, the defendant moved for a re-taxation, contending that by section 3251 of the Code it is entitled to the same costs as upon an appeal. The court below sustained the contention, and ordered a retaxation, from which order the plaintiff has appealed.

Subdivision 3 of section 3251 of the Code, among other things, provides that upon a motion for a new trial upon a case the same sums as upon appeal shall be allowed. The plaintiff’s motion at special term was based, among other things, “ on the settled case herein,” and it may therefore be regarded as having been made “on a case ” within the purview of the above-cited provisions of the Code. Consequently, when the motion was denied, the defendant became entitled to the same costs as upon an appeal. Wilcox v. Daggett, 15 Wkly. Dig. 208; Atkinson v. Truesdell, 28 St. Rep. 585. For these reasons the order appealed from should be affirmed, with costs.

All concur.


author: Hatch, J.

text:
    The People, Resp’t, v. Joseph Luczak, App’lt.

      (Buffalo Superior Court, Special Term,

      Filed December, 1894.)

    Cbjminal law—Judgment—Recital.
    Under section 701 of the Code of Criminal Procedure, the judgment of conviction, in a case tried in a court of special sessions, without a jury, need not recite that the defendant did not demand a jury.
    Motion to discharge defendant from custody.

      D. J. Kenefick, Dist. Atty., for the People; Herman Henning, for def't.
   Hatch, J.

The defendant was convicted by a court of special sessions of the offense of petit larceny, and sentenced to be confined in the Erie county penitentiary for the term of five months, and pay a fine of $25. Motion is now made to discharge him from custody, upon the ground, among others, that the judgment of conviction is fatally defective in omitting to show that defendant failed to demand a trial by jury when arraigned for trial. No complaint is "made that the recital of the judgment is defective in any other respect. The act which gave the right to trial by jury for the offense of which defendant is convicted was passed in 1824. It has been since that time changed in phraseology, but the substance in the present regard has not been changed, and is now embodied in the Code of Criminal Procedure (section 701). Therein it is provided that, “if the defendant do not demand a trial by jury, the court must proceed to try the issue.” It was held under the original act, where the right to demand a trial by jury was given, that it was not necessary for the court to inform the prisoner of his right to be tried by a jury, or that he should expressly waive such right to render valid the judgment of conviction. People v. Goodwin, 5 Wend. 253. If it be not necessary to inform defendant of his right, it cannot be necessary to recite that he was so informed. In People v. Moore, 3 Park. Cr. R. 465, it was held that such recital was not necessary to the validity of a commitment. This result is also supported in People v. Cook, 45 Hun, 34; 9 St. Rep. 412. The doctrine laid down in People v. Mallon, 39 How. Pr. 454, relied upon by defendant, so far as it affects the present question, conflicts with the authority of the foregoing casés, and we believe that it ought not to be followed. The discussion upon this point was not necessary to a determination of the question presented, for it there appeared that defendant demanded a trial by jury, which was refused. In the present case defendant made no objection to the trial proceeding before the court, and he must be held to have elected to be so tried. "This leads us to the conviction that the judgment set out in the return is valid, and must be upheld. Defendant is remanded to the custody of the keeper of the penitentiary, and the writ is dismissed.

Ordered accordingly.


author: Ehrlich, C. J.

text:
    Jacob Balz, App’lt, v. Daniel M. Shaw, Resp’t.

      (New York City Court, General Term,

      Filed February 11, 1895.)

    Appeal—Case—Settlement.
    Where the facts are disputed, the settlement of the case by the trial judge is conclusive.
    Appeal from an order, declining to correct the case on appeal.

      John P. Schuchman, for app’lt; J. M. Fiske, for resp’t.
   Ehrlich, C. J.

The order appealed from having been made by the trial judge, we think we must, in view of the facts, accept his certification as conclusive thereon. To do. otherwise would be to substitute o.ur opinion.' for his knowledge. ■ There was a dispute as to what occurred, and the trial judge determined it, • • Green v. Shute, 27 St. Rep. 816; Dearing v. Pearson, 55 id. 774; affirmed 59 id. 207. For these reasons the Order appealed from must be affirmed, with costs.


author: Newburger, J.

text:
    Bridget Hartigan, App’lt, v. Patrick Nagle, Resp’t.

      (New York City Court, General Term,

      Filed February 11, 1895.)

    Judgment—Default—Vacation.
    Where a judgment is obtained by default against a defendant, since deceased, and it appears that it was entered by fraud and collusion, amotion to open such default and allow the administrator to defend, will be granted.
    Appeal from an order; opening a judgment by default.

      Bradley & Bradley, for app’lt; Booraem, Hamilton, Beckett & Ransom, for resp’t.
   Newburger, J.

In January, 1887, the plaintiff recovered a judgment by default against Patrick Nagle, since deceased. In the month of December, 1893, an application was made by the plaintiff for leave to issue execution, whereupon a motion was made in behalf of Ella A. NágJe, the widow of the defendant, and administratrix of his estate," for an order vacating the judgment herein, and making her a party defendant to the action. Theieupon, reference was ordered to take proof of the facts. ■ The referee subsequently filed his report, recommending the granting of the motion to vacate the judgment, which report was confirmed, and this appeal taken from the order entered thereon.

A party may, in a proper case, move to vacate and set aside a judgment; and where such judgment is obtained by defanlt against a defendant who is now dead, and it appears that such judgment was entered by fraud and collusion, the motion to open such default and allow the administratrix to defend will be granted. Section 1284 of the Code; Ward v. Town of Southfield, 102, N. Y. 287; 1 St. Rep. 689.

The referee properly excluded the question put to the plaintiff, to show whether she had loaned any money to decedent. A careful reading of the printed case fails to disclose any testimony on " the part of the adminstratrix as to any communication concerning Ahe making and delivery of the note, or the recovery of the judgment; and therefore the testimony of the plaintiff did not come within the exception of section 829 of the Code of Civil procedure.

There are no exceptions to the referee’s report that would warrant us in dishrbing the order entered herein. Order appealed from affirmed, with costs. All concur.


text:
    Simon M. Bondy et. al. Resp’ts, v. Abraham Collier, Impleaded, etc., Appl’t.

      (New York City Court, General Term,

      Filed February 11, 1895.)

    Arrest—Undertaking.
    Where the original undertaking on arrest is defective, the trial court may allow a new undertaking to be filed.

      Appeal from an order, denying a motion to vacate an order of - arrest.

      Davis & Kaufman, for app’lt; Blumensteil & Kirsch, for resp’ts.
   Ehrlich, C. J.

The court below directed that the motion to vacate the order of arrest be granted unless the plaintiffs executed and filed a new undertaking as provided by the Code. The paper undertaking having been filed and the court having power to allow the defects in the original undertaking to be amended (Code, § 730; Bellinger v. Gardner, 2 Abb. Pr. 441; Irwin v. Judd, 20 Hun, 562; Beach v. Southworth, 6 Barb. 173; Kissam v. Marshall, 10 Abb. Pr. 424; Marwin v. Marwin, 11 Abb. Pr. [N. S.] 97), the case on appeal stands practically as if the original undertaking had been perfect in the first instance. The affidavit on which the order to arrest was granted sets forth a good cause of action for goods sold to the defendants on the faith of representations which afterwards proved to be untrue. The affidavit sufficiently establishes the fraud, and the sources of knowledge and information clearly appear therein. It follows that the order appealed from must tie affirmed, with costs. All concur.


author: Fitzsimons, J.

text:
    William W. Hart et. al., App’lts, v. John B. Sexton, as Sheriff etc., Resp’t.

      (New York City Court, General Term,

      Filed February 11, 1895.)

    Sherriee—Indemnitors—Substitution.
    In an action on a bond, given by the plaintiff in replevin by which the obligors agree to save the obligee harmless from damages by reason of a levy made by him as sheriff, the obligors therein may be substituted, as defendants in the place of the sheriff.
    Appeal from an order, granting a motion to substitute the indemnitors as defendants in the action.

      Arthur Furber, for appl’ts; Kohn, Ruck & Lippman, for resp’t.
   Fitzsimons, J.

The defendant, as sheriff, by virtue of two judgments' in favor of the State Bank and a certain other judgment in favor of Edgar Lehman, levied upon certain property of Israel Pike and Clara Schulhoff, who were the defendants in said three actions. While in possession of said property, the plaintiffs herein commenced this (replevin) action against the defendant, claiming a part of the goods levied upon by defendants. Subsequently one Arnold Kohn, and said Edgar Lehman executed and delivered to the sheriff a bond or undertaking, by which they agreed to save and hold him harmless from all damages, costs, and claims of any kind by reason of the levy ■ made by him as above described. Said Kohn and Lehman applied to have themselves substituted as defendants herein in place of the present defendant (Sexton, sheriff), and an order to that effect was entered. This appeal, is from said order, the plaintiffs contending that the undertaking provided by Kohn and Lehman was not within the provision of section 1421 of the Code of Civil Procedure.

The section referred to provides as follows, as applied to this case.

“See. 1421. Where an action to recover a chattel or chattels hereafter levied upon by virtue of an execution, * * * is brought against an officer, * * * if a bond or written undertaking in-

demnifying the officer against the levy or other act or acts, has been given in behalf of the several judgment creditors, * * * before or after the commencement of the action, the persons who gave it to them • * * * may apply for an order to substitute

the several applicants as defendants in the action in place, of the officer; and the court shall upon the application of the officer, grant an order substituting the indemnitors as defendants in the action in place of the officer.”

It seems to me that no argument is necessary to prove that the section just referred to was enacted to meet and provide for cases precisely like this one; the mere statement of the facts as above related is all that is needed. The undertaking in question undoubtedly is authorized by and falls within the section mentioned (1421), and the order appealed from was properly made, and is affirmed, with costs. All concur.


text:
    Daisy Adams, App’lt, v. Annie Gray, Resp’t.

      (New York City Court, General Term,

      Filed February 11, 1895.)

    Injunction—Discretion.
    The court may, in its discretion, vacate an injunction granted by it.
    Appeal from an order vacating an injunction.

      P. Jones and T. A. Atchinson, for app'lt; W. L. Cannon, Jr., for resp’t.
   Ehrlich, C. J.

Without deciding whether the court had power in the first instance to grant the injunction, under the peculiar circumstances disclosed, it was certainly not a writ of right, and the court had power to vacate it, and the discretion was not abused in this instance.

The order must therefore be affirmed, with costs.

All concur.


text:
    Mary C. Bernard, App’lt, v. United Life Insurance Association, Resp’t.

      (New York City Court, General Term,

      Filed February 11, 1895.)

    1. Insurance—Life—Warranty.
    A false statement that no application to any other company has been made for insurance, constitutes a breach of warranty that the answers to questions in the application are true.
    2. Same—Waiver of Conditions.
    The conditions of a policy can be waived only by the officers specified in the policy.
    3. Same.
    Such conditions cannot be waived before the policy is issued.
    Appeal from judgment dismissing the complaint.

      Lyman W. Redington, for app’it; Harry Wilber, for resp’t.
   Fitzsimons, J.

The complaint was rightfully dismissed. The statement that “no application had been made to any other company for insurance” was admittedly false, and that, being a material statement and untrue under the terms of the defendant’s policy of insurance, vitiated it.

It is true that the defendant could waive the forfeiture, but there is nothing in the appeal record which would justify us in saying that there was such a waiver. The provision of the policy concerning waiver of any of its terms reads as follows :

“Nd waiver shall be valid unless the same shall be in writing, signed by the president or vice-president and secretary or assistant secretary of the association.”

Certainly, the waiver claimed by the plaintiff was not in accordance with the provision just mentioned ; but she claims that one Donovan, a solicitor for the defendant, knew that another application had been made by the assured to the Mutual Reserve Fund, and rejected; that also one Lord, who was in defendant’s employ as superintendent of agencies, had such knowledge. What his duties and powers were, does not appear. But he appears not to have the power of waiving any of the terms of defendant’s policy. He had no official position in defendant's company, was merely an agent working for commissions, and could not make a contract for defendant, or waive any of the terms of a contract made by it. Donovan’s position in defendant’s company was much lower and less powerful even than the one held by Lord; and he, so far as the answers made in the assured’s application are concerned, was the agent of the assured, and not defendant’s agent, and he certainly had no right to waive any of the terms of defendant’s policies.

Besides, the alleged waiver, according to plaintiff’s testimony, was made before the-policy was issued. How the terms of a proposed contract can be waived before it is made is something we cannot understand. Perhaps, if persons in defendant’s employ who had the power to waive defendant’s contracts, or some of the terms thereof, had the knowledge that plaintiff claims Donovan and Lord possessed, viz. “the rejection of the insured by the Mutual Reserve Fund,” then defendant might be estopped from insisting upon the forfeiture; but that is not the case here, for, as pointed out by us, neither Donovan or Lord had the power or authority sufficient to create an estoppel or waiver against defendant’s interests.

Although, as claimed by appellant’s counsel, this may be a hard case against his client, as a matter of morals, yet we must, for the reasons herein given, affirm the judgment, with costs.

Ehrlich, C. J.^ concurs. Newburger, J., concurs in the result.


author: Bookstaver, J.

text:
    Morris Levy, Resp’t, v. Elizabeth E. Kottman, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Contract—Construction.
    Where there is no ambiguity in a contract, it is the duty of the court, and not of the jury, to determine its import and meaning.

      2. Brokers—Commissions
    Before a broker becomes entitled to his commissions, he must procure a purchaser ready, able and willing to complete the purchase.
    3 Same.
    The writing, in this case,was held not to be a contract for the purchase and sale of the premises, but merely an option, and not to entitle the broker who brought the parties together, to commissions as having found a purchaser.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Edward W. S. Johnston, for app'lt; J. L. Weinberg, for resp’t
   Bookstaver, J.

This action was brought for broker's commissions under an employment to procure a purchaser of certain real estate in the city of New York, The plaintiff brought to the defendant one Israel M. Cohen, who, after some negotiation, made a verbal agreement to pay $25,500 for the property, and gave the defendant $50 on account thereof, and procured her to sign the following paper ■ •

,l New York, June 6th, 1892.
“ Received from I. M. Cohen the sum of fifty dollars, on account of contract price of $25,500 on the sale of premises known as 264 Delancey street, New York: $950 to be paid on this day, and $24,500 on the delivery of the deed; the contract to be made at the office of Jacob Manheim, 280 Broadway.
“[Signed] Elizabeth E. Kottman.”

This receipt was given, and the payment made, on Sunday, June 6, 1892, and it is uncontradicted that the purchaser made no other payment than this $50. It is conceded that the pretended purchaser never made a written contract to buy the house, and that no other contract was subsequently entered into, and that the defendant was notified that the purchaser would not sign the contract, and that it was the voluntary act of the purchaser that he did not pay the $950 on the day he agreed to do so; that he could have done so if he had desired, but did not; and that he never signed the foregoing paper, or any other to purchase the house, and that he did not appear at the appointed time and place to sign the contract contemplated in the paper. This $50 was paid to defendant’s husband, and he testified:

“ I was a little shy about taking the $50. I told him then and there that I took that on condition only that it was to hold over ; that I "would make no arrangement for any other purchaser between now and to-morrow morning at ten o’clock, when we would draw a contract. * * * I then said : 1 Gentlemen, bear this in mind: I am taking this on condition that the contract will be drawn to-morrow at ten o’clock, at a certain place, and I claim that the commission is due at the signing of the contract’ * * * I never saw the purchaser, Cohen, after being in there, until one day last week in the court-room here.”

The defendant moved to dismiss the complaint, but when plaintiff rested and at the close of the whole case, on the grounds: (1) That the plaintiff had not established a cause of action, had not complied with the agreement to procure a purchaser, and had only procured an option, and that even that was not complied with, as the purchaser did not pay the $950 on the day agreed ; (2) that no employment is shown by the defendant, or ratification of any employment, and on .the ground that the broker had not procured a purchaser, ready, able, and willing to complete, or one who would enter into any contract that could be enforced ; and (3) that the alleged contract was illegal, having been made on a Sunday. In submitting the case to the jury, the court, among other things, said that they had heard the evidence, and the receipt (being the paper before recited) would be handed to them, and that it was for them to say what that receipt imported ; in other words, it was submitted to the jury to determine the legal import of this paper. This was clearly error. There was no ambiguity in it, and it was the duty of the court, and not of the jury, to determine its import and meaning. • Dwight v. Germania L. Insurance Co., 103 N. Y. 341, 350; 3 St. Rep. 115; Glacius v. Black, 67 N. Y. 563 ; Lomer v. Meeker, 25 id. 361. For this error alone the judgment should be reversed. But,.in our opinion, there is a fatal difficulty which will prevent the plaintiff recovering in any event. It is clear the receipt given in evidence is not a binding contract upon the parties, and was not intended by them so to be. It expressly provided for the making of a binding contract at the office of Jacob Manhcim, 280 Broadway, and, although, the paper itself does not show when this contract was to be made, it appears from the uiicontradictcd evidence that it was to be on the following day, and the pretended purchaser on the following day failed to appear at Mr. Manheim’s office, nor did he at any time offer to execute any contract in regard to the purchase of this house, although the defendant. as far as the testimony shows, was at all times willing to complete the contract according to its terms. Moreover, he failed to pay the $950, which he had agreed to do," at the time agreed. It is too well settled to require the citation of authority that before a broker becomes entitled to his commission he must procure a purchaser, ready, able, and willing to complete the purchase. This it is clear the plaintiff did not do. The receipt was not an agreement to purchase, and was not signed by him, and could not be enforced by the defendant against him. The testimony of the defendant’s husband and the paper itself show that it was a mere option to purchase, for which he paid $50, and was to be good until the following day; then the purchaser, by failing to appear, forfeited his option, and that was the end of the defendant’s contract as set forth in the receipt. In Platt v. Kohler, 65 Hun, 557; 49 St. Rep. 12, it was said that:

“As no enforceable agreement was ever made between Kohler and Morgantbau, and as Kohler was not in fault, Platt, the plaintiff, had not earned any commissions, and that the present case was not one in which a principal had changed his mind, and refused to carry out a contract made by the broker upon terms authorized by the principal; but was a case where no benefit had resulted to the principal from the broker’s efforts, because Kohler could not compel Morganthau to perform, nor recover from him damages for nonperformance.”

In Bennett v. Egan, 3 Misc. Rep. 421; 52 St. Rep. 437, the court says:

“Whenever the broker’s services have resulted in such a complete meeting of the minds of both vendor and vendee, he is, in the absence of an express stipulation to the contrary, entitled to the compensation agreed upon, or to the usual commission, although the vendor changes his mind, and refuses to enter into a written contract. In such a case the vendor cannot, by his own wrongful act, deprive the broker of bis commission. On the other hand, as long as the vendor insists upon something which he has a right to insist upon as a condition of sale, and to which the vendee refuses to assent, in consequence of which disagreement the vendee refuses to enter into an enforceable contract, it cannot be held that the broker procured a complete meeting of the minds of both vendor and vendee. This proposition is self-evident.”

In the case last cited the written contractor receipt was stronger than in this, and was signed by both parties, not by the seller alone; and in relation to it .the court said: “The question there-

fore arises whether the written instrument, of itself, was or was not an enforceable contract for the sale and purchase of the real estate therein referred toand, after a full discussion of all the authorities, concludes that it was not. In Crombie v. Waldo, 137 N. Y. 129; 50 St. Rep. 180, the plaintiffs, real-estate brokers, were employed by defendant to procure a lease of certain real estate owned by her. They procured the execution of an agreement by the trustees of common schools for the Twelfth ward of the city of New York. That agreement was a conditional agreement, upon which neither the trustees nor the defendant could have enforced specific performance; and the court said:

“The contract was one which the defendant could not enforce. Neither of the parties stood in any better position than they did before it was executed; for merely procuring the execution of such a paper, it cannot be said either that the plaintiffs had procured a lease for the defendant, or a valid agreement for a lease, or that they had in any way earned their commissions.”

And in Condict v. Cowdrey, 139 N. Y. 274; 54 St. Rep. 648, the court says:

“To entitle a broker to recover commissions on a sale of real estate where the contract with him requires a sale to be effected through his agency, it is not sufficient to show a provisional arrangement which has failed because oí the nonfulfillment of a condition not dependent upon the action of the vendor, but a binding and enforceable agreement for the sale and conveyance of the land must be proved.”

See, also, Barnes v. Roberts, 5 Bosw. 73; Jewett v. Emson, 2 Rob. 165; Gilder v. Davis, 45 St. Rep. 690; Wall v. N. S. Illuminating Co., 21 St. Rep. 105 ; Dwyer v. Raborn, 33 Pac. 350. This case is just the reverse of Simonson v. Kissick, 4 Daly, 143, in which $75 had been paid on account of and as part of the purchase price, and the court held that the agreement entered into was one which a court of equity could specifically enforce, and not a mere option, as we think this agreement undoubtedly is. It also differs from other cases cited by plaintiff’s counsel where the vendor, and not the vendee, refused to complete the'purchase. The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant, to abide the event.

All concur.


author: Bischoff, J.

text:
    Charles F. Winch, App’lt, v. Farmers’ Loan and Trust Company, as Executor, etc. et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

      1. Pleading—Condition precedent.
    Performance, or an excuse for nonperformance, of a condition precedent must be averred and proved.

      ■2. Same—Amendment.
    Where a party, seeking to avail himself of the other’s lefective pleading, • chooses to wait until the cause is moved for trial before he makes known his objection, the “furtherance of justice’ ” admits of even a more generous use of the power conferred upon the trial court to grant leave to amend.
    3. Same.
    Where leave to amend the complaint is refused, not upon grounds of discretion, but from an erroneous view with regard to the proper construction of an instrument, such ruling is on a question of law, and an exception thereto presents the matter to the appellate court.
    4. Appeal—Inconsistent position.
    A party will not, upon an appeal, be permitted to assume a position inconsistent with the one taken upon the trial.
    Appeal from a judgment dismissing the complaint.

      Edward Swann, for app’lt; Wm. D. Veeder, for resp’t Trust Co., Edward B. Hill, for resp’t Fanshawe.

   Bischoff, J.

The action was brought to recover upon the following instrument, which was annexed to, and by appropriate and sufficient averment made a part of, the complaint:

“New York, March 4th, 1890.
“ Whereas, we, the undersigned, for ourselves and others in interest, propose the formation of a gas company in Brooklyn, or . for operation in Brooklyn, or the operation in Brooklyn of a company already formed; and whereas, Charles F. Winch, of New York, is in possession of certain information which, if imparted to us, is likely to be of value to us: We hereby agree, in consideration of said Winch having given us such information, to give said Winch five (5) bonds at first mortgage of said gas works or said company, making a par value of five thousand dollars in the best of any securities issued, and payable as soon as issued or printed. It is understood that said information is of a character to directly affect the validity or operation of a certain contract or agreement now made, or in progress of making, between us and the owners or supposed owners of a charter or franchise commonly known as the ‘Equity Charter of the Equity Company of Williamsburgh, Brooklyn."
“[Signed] B. F, Sherman,
“Hy, E. Fanshawe.
•“Witness E. M. Carroll.”

The complaint alleged that the “agreement” was entered into "“for valuable-consideration that the bonds “agreed” to be given were those of the “Equity Gaslight Company of the Eastern District of the City of Brooklyn”; that said company had “printed and issued” its bonds; and that the defendant, after due demand, had severally failed to deliver the “five bonds, as agreed,” or any other bonds. It further alleged the death of Sherman: that his last will and testament; of which the Farmers’ Loan & Trust Company was nominated and appointed executor, was admitted to -probate; and that such trust company had duly entered upon the performance of its duties as such executor. Judgment was demanded in the sum of $5,000, damages alleged to have resulted to the plaintiff from the failure to deliver the bonds. It was not, however, particularly alleged that the plaintiff did impart the information alluded to. or that he had otherwise performed the agreement on his part. The making of any such agreement was severally denied by the defendants. When the cause was called for trial and the jury had been sworn, the learned trial judge, before any evidence was taken, and on' motion of counsel for each of the defendants, dismissed the complaint, upon the ground that no cause of action was predicable of the facts therein alleged. The plaintiff’s counsel opposed the motion for dismissal, and also requested leave to withdraw a juror and to amend. The request was denied, and to the several rulings an exception appears in the record.

Some doubt arose at the trial with regard to the proper meaning of the instrument annexed to the complaint. Viewing it as ■an agreement made upon sufficient consideration, namely, that Sherman and Fanshawe thereby promised to pay in bonds for information which the plaintiff promised to supply thereafter, no •error is predicable of the learned trial judge’s ruling that the complaint was defective, upon application of the familiar rule that performance, or an excuse of non performance, of a condition precedent, must be averred and proved. Oakley v. Morton, 11 N. Y. 25; Levy v. Burgess, 64 N. Y. 390, 394; Tooker v. Armoux, 76 N. Y. 397. 400: Bogardus v. N. Y. L. Insurance Co., 101 N. Y. 328, 334. Construing the instrument, however, to have been a mere promise by Sherman and Fanshawe to pay for information already imparted, the trial judge deemed the complaint to be wanting in substance because of the omission of an averment that the information was imparted at the request of the promisors, express or implied. Obviously, in the absence of such a request, the promise to pay was nudum, pactum, and theomission'to allege it rendered the complaint fatally defective. 3 Am. & Eng. Enc. Law, p. 838, and cases collated in the notes; Baylies, Code PL 135; Maxw. Code PL 84; Bliss, Code PI, § 276, 277; Boone, Code PL § 19, Livingston v. Rogers, 1 Caines, 583.

We are clear, however, from a careful scrutiny of the entire context of the instrument, that Sherman and .Fanshawe’s promise had reference only to information which the plaintiff was yet to impart r the language, “in consideration of said Winch having given such information,” having been employed in the sense of “when,” “provided,” or “if" “said Winch” shall have “given such information.” In that view, as already stated, the complaint was defective, in that it did not allege that the plaintiff did impart the information, or an excuse for not having imparted it.

As we' construe the instrument, the complaint was open to amendment, since an allegation of the plaintiff’s performance, or of an excuse of his non-performance, would not necessarily conflict with the terms of Sherman and Fanshawe’s alleged promise. If the party seeking to avail himself of the other’s defective pleading chooses to wait until the cause is moved for trial before he makes known his objection, the “furtherance of justice” admits of even a more than ordinarily generous use of the power conferred upon the trial court" (Code Civ. Proc. § 723) to grant leave to amend, Woolsey v. Village of Rondout, *41 N. Y. 603, 604; 4 Abb. Dec. 639, particularly so, if it be considered that- the party whose pleading is at fault, unless relief can be had upon a motion for a new trial at special term, may be remediless should special or peculiar hardship result from a refusal to grant such leave. A request for leave to amend at the trial, if the proposed amendment is one which it is within its province to allow, is ‘ addressed to the discretion of the trial court. Miner v. Baron, 131 N. Y. 677; 43 St. Rep. 930. An appeal to the general term from a final judgment may be taken only upon questions of law or questions of fact, or both. Code Civ Proc. § 1346. No question of fact is involved upon appeal frpm a judgment which directs a dismissal of the complaint for insufficiency of the facts alleged, and a ruling upon a matter resting in the discretion of the court is not a ruling upon a question of law (Wells, Law & F. § 735), and so not subject to exception (Code Civ. Proc. § 992-996). An exception, therefore, which was taken to the allowance of an amendment, where the amendment was one which the trial court could allow, was held inoperative for any purpose. Olendorf v. Cook, 1 Lans. 37, 39. In the case at bar, however, it affirmatively appears that the request of the plaintiff’s counsel for leave to amend the complaint was refused, not upon grounds of discretion, but from an erroneous view which the trial court adopted with regard to the proper construction of the instrument annexed to the complaint. The court, upon the contention of counsel for both defendants, treated the instrument, for the the purposes of the request of the plaintiff’s counsel, as a mere promise by Sherman and Fanshawe to pay for the plaintiff’s past services—a construction with which, as already stated, we do not agree. The defendants will not-upon this appeal be permitted to assume a position inconsistent with the one assumed upon the trial, Fay v. Muhlker, 1 Misc. Rep. 321,323; 48 St. Rep. 699, and cases there cited; and, since the construction of the instrument presented a question of law, the ruling of the court upon the request for leave to "amend was, under the circumstances, a ruling upon a like question. The exception taken to the refusal to grant leave to amend, therefore, presents error for which the j udgment should be reversed. Leave to amend should be sought by the plaintiff upon an application to the court at special term. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.

All concur.


text:
    Duryea, Watts & Company, Limited, Resp’t, v. Julius Rayner, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895).

    1 Appeal—Appealable order.
    An appeal lies to the common pleas from an order of the city court, affirming an order denying a motion to vacate an attachment, where no question of discretion is involved, and the legal sufficiency of the papers, upon which the attachment was procured, is alone in dispute.
    2. Pleading—Complaint—Verification.
    The verification of a complaint, in the usual form required in the case of a verification made by a party, is sufficient when made by an officer of a domestic corporation.
    3. Attachment—Affidavit—Proof of damages.
    Por the purpose of presenting the jurisdictional facts as required by § 636 of the Code, an allegation of unliquidated damages for the breach of a contract, such as would suffice for a complaint, cannot avail, where it is not further made to appear that damages beyond those of a nominal nature were necessarily sustained.
    Appeal from an order of the city court, affirming an order denying a motion to vacate an attachment on the papers on which it was granted.

      Robert L. Wensley, for app’lt; L. B. Bunnell, for resp’t.
   Bischoff, J.

An appeal lies to this court from an order such as that before us, where it appears that no question of discretion is involved, and the legal sufficiency of the papers upon which the attachment was obtained is alone in dispute. Murphy v. Jack, 142 N. Y. 217; 58 St. Rep. 458; Allen v. Meyer, 73 N. Y. 3; Wallace v. Castle, 68 N. Y. 373; Walsh v. Schultz, 6 Civ. Proc. R. 126. It is claimed that the verification of the complaint in this case was defective because made by the president of the plaintiff corporation without a statement of the sources of his knowledge regarding the matters in suit. The objection is without force. The verification being in the usual form required in the case of a verification made by a party, it was sufficient as made by the affiant, an officer of a domestic corporation. American Insulator Co. v. Bankers' & M. Telegraph Co., 13 Daly, 200.

The main objection is made to the matters stated in the complaint leading to the allegation of damage, it being contended that damage was in no way shown to have resulted from the facts alleged, and that, therefore, the plaintiff did not establish the fact that it was “entitled to recover a sum stated.” Code, § 636. It is alleged that the plaintiff sold to the defendant “ six car loads of flour, amounting in the aggregate to twelve hundred und six sacks, _,at and for the price of three and 90-100 dollars per 196 lbs; ” that subsequently plaintiff delivered, and defendant received and paid! for, one car load of 210 sacks. The plaintiff’s readiness and willingness to deliver the remaining five car loads, and the defendant’s refusal to receive the same, is alleged, and resulting damages-in the sum of $525 are claimed. An affidavit was also submitted as required by § 636 of the Code, and the complaint was made a part of the affidavit by reference, but no further facts with regard to the cause of action were alleged. Upon this appeal we have-but to determine whether the facts presented to tire court below tended to show a compliance with tne statutory requirements. If so, the court having acquired jurisdiction to grant the attachment, the appellant would have no standing before this court. Steuben Co. Bank v. Alberger, 78 N. Y. 258; National Shoe & Leather Bank v. Mechanics’ Nat. Bank, 89 N. Y. 440. The complaint definitely sets forth a breach of contract by the defendant, in so far as he refused to receive five car loads of flour, aggregating 996-sacks, and the plaintiff makes a verified statement-as to its damage by reason of the defendant’s failure to receive and pay for them as agreed. . This, however, does not afford proof “ to the satisfaction of the judge,” which satisfaction must be judicial, and not merely personal, Mott v. Lawrence, 17 How. Prac. 559; Dolz v. Transportation Co., 3 Civ. Proc. R. 162, that the plaintiff is “.entitled to recover a sum stated ” (Code, 636). It is true that the elements of a cause of action for breach of contract are here shown, and the fact that the exact method adopted by the plaintiff in computing the damages alleged does not appear, nor the precise causes leading to this damage, would not be of effect upon the question of jurisdiction here presented, if it could be reasonably inferred from the allegations that some damage necessarily resulted. Haebler v. Bernharth, 115 N. Y. 464 ; 26 St. Rep. 330. But here there is no averment from which such an.inference is to be drawn. For the purpose of presenting the jurisdictional facts as required by the Code, an allegation of unliquidated damages for breach of a contract, such as would suffice for a complaint, cannot avail, where it is not further made to appear that damages beyond those of a nominal nature were necessarily sustained. Westervelt v. Agrumaria Sicula, Societa, etc., 58 Hun, 147; 33 St. Rep. 883. In the proofs here submitted there was nothing to authorize an inference that loss resulted from the defendant’s failure to accept the goods, and, while the complaint was sufficient as a pleading, it was insufficient as evidence of the facts to be set forth as a statutory condition to the granting of the attachment, and the appeal must prevail. Orders of general and special terms reversed, and motion granted, with costs.

All concur.


author: Bookstaver J.

text:
    Bridget McCabe, App’lt, v. Frederick H. Kastens, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Negligence—Landlobd and tenant.
    Before a landlord can be held liable for injuries, sustained by a tenant in consequence of tripping on a mat in a common hall of a tenement
      house, the tenant must show that the mat was defective and dangerous, and that the landlord had actual notice of its condition, or that it had been in such dangerous condition for such a length of time as to permit the jury to infer notice.
    2. Same.
    The landlord, in such case, can be required to exercise no mar caution on his part than the tenants should exercise on their part.
    3. Same.
    The question of the landlord’s negligence is to be determined by what was known before, and at the time of the accident, and not what could be inferred from the accident itself.
    Appeal from a judgment of the city court, affirming a judgment entered on the dismissal of the complaint.

      James A. O’Gorman, for app’lt; Holm & Tabor, for resp’t.
   Bookstaver J.

This action was brought by a tenant to recover damages of her landlord for injuries sustained in consequence of tripping on a mat placed by him in the rear hall of his house, which was practically a tenement, as it was occupied by a number of different families, all of whom had access to the hallways in common. From the testimony it appears that there were three mats in that hall; that sometime before the janitress of the building hadotripped on one, and sustained an injury, and that in consequence she complained to the landlord, and asked him for new mats to cover the hall. .He furnished one new one, which was placed in front, and the one taken from the front was placed in the rear. This mat, the plaintiff herself testified, had no holes in it, but was old and ragged at one end, but' that she didonot think it was dangerous. In fact, the chief objection to the old mats, before plaintiff’s accident, was, as she herself testified, that they were dirty. Another of plaintiff’s witnesses testified that he had been living in the same premises for 10 years, and for 4 had had charge of the house; that on the day of the accident he saw the mat in question in the hallway; that he had passed over it, in going in and out of the hall, and there was no hole in it.

It is a well-established rule of law that; before a landlord can be held liable in a case of this character, the burden rests upon the plaintiff to establish by affirmative evidence the landlord’s negligence. To do this it is necessary for the plaintiff to establish two facts: (1) That the mat was defective and dangerous; and (2) that the landlord had actual notice of its condition, or that it had been in. such dangerous condition for such a length of time as to permit the jury to infer notice. In Alperin v. Marie, 55 Hun, 212; 27 St. Rep. 806, it is said:

“The landlord is responsible for injuries to his tenants resulting from the dangerous condition of those parts of the building which he reserves for the common use, and over which lie retains control, but only when he has been guilty of actual negligence with regard thereto. To bring him within this rule, it must appear, as was said in Henkel v. Murr, 31 Hun, 30, that with some notice of the condition of things, such as an unreasonable omission to ascertain the condition, he had failed to make the necessary repairs or changes called for by the condition or exigency.

We think that the plaintiff failed to establish either of these essential facts. . The plaintiff herself testified that she did not regard the. mat as dangerous, although she was constantly passing over it, and had a far better- opportunity for knowing its condition than the landlord could possibly have had. Uhlig, plaintiff’s witness, also passed over the mat daily, and did not think it dangerous. It would be unreasonable and illogical to contend that under such circumstances the landlord was bound to know that the mat was in fact dangerous. The landlord, in such cases, is not an insurer of .his tenants against all loss or injury, but is required to exercise only reasonable care and caution, and can be required to exercise no.more caution on his part than the tenants should exercise on theirs. While it is quite true, that, if the plaintiff knew of the dangerous condition of the mat, such knowledge did not impose upon her the obligation of refraining from walking over it in a careful-manner, yet the fact that, she did not regard it as dangerous herself, although using it constantly, is very strong evidence that the landlord, in the exercise of ordinary caution, would not have discovered its dangerous condition; and, if it was not discoverable txy ordinary care, it follows, as a matter of necessity, that the jury would have had no right to infer that it had been dangerous for such a length of time as to give him notice of its dangerous condition, and there is no proof of actual notice in the case. The question of defendant’s negligence was to be determined by what was known before and at the time of the accident, and not what could be inferred from the accident itself. Dougan v. Transportation Co. 56 N. Y. 1. The trial judge, therefore, was entirely justified in dismissing' the complaint as he did; and the judgment of the general term of the city court, affirming such judgment, was correct, and should be affirmed, with costs.

All concur.


text:
    Ellen Banzer, App’lt, v. Adam Banzer, et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Wills—Limitation over.
    A limitation over, on a devise of the entire and absolute estate, is void.
    Appeal from a judgment, dismissing the complaint on the merits.

      James Kearney, for app’lt; Edward W. S. Johnston, for resp’ts.
   Bischoff, J.

This is an action for partition. The property in question was -held originally by Michael Banzer and John Maier, as tenants in common, each an undivided -moiety. John Maier subsequently conveyed his interest to Suzanna Banzer, the wife of his co-tenant. Michael Banzer thereafter died, leaving a last will and testament, whereby he disposed of his property as follows: ■ .

“After all my debts are paid and discharged I give and bequeath to my beloved wife Suzanna Banzer all my real and personal estate now at present and hereafter in my possession. My real estate consisting at present of part of a house known by the number 220 West 32nd Street, 20th Ward, so as described in the deed of said house. And my personal estate, and whatever belonging to me at my dead; whatever and wheresoever of wot nature, kind and quality soever may be. That she shall have undisputed right, to do and dispose of according to her own judgment, that after her Dead, my beloved children or their executor, administrator shall divite the same chair and chair alike.”

Suzanna Banzer died intestate, leaving her surviving the defendants Adam and John Banzer, Annie Hauf and Elizabeth Howell, her heirs at law. Plaintiff is the widow of Christopher Banzer, a deceased son of Michael and Suzanna Banzer. Said Christopher died before Suzanna Banzer, leaving him surviving plaintiff and an infant son, Christopher Banzer, Jr., which son also died before Suzanna Banzer; and it is as heir at law of this infant that plaintiff claims an interest in the real property in question.

The construction of the will above set forth contended for by plaintiff is that a life estate in Suzanna Banzer was created of the moiety of the realty specified which was owned by the testator, with remainder over to his heirs, and that, therefore, the plaintiff should succeed to the interest of Christopher Banzer, Jr., as his heir at law. For the defendants it is claimed that the conveyance from Maier to Suzanna Banzer had the effect of creating a tenancy by entireties in Michael Banzer and his wife, and that, therefore, any limitations in the will of Michael would not affect the absolute ownership of Suzanna after his death. It is also contended that the limiting provisions in the will applied only to the testator's personalty. Whatever field for discussion may be presented by these questions is not of importance, for, assuming them to be determinable as contended for by plaintiff, we are content to uphold the determination of the learned trial judge upon the ground that the plaintiff’s deceased son possessed no interest in the property at the time of his death by virtue of the provisions of the will. At the trial it was held that the complaint should be dismissed, the limitation over to the heirs of the testator being adjudged void, as depending upon the nonexecution of an absolute disposing power vested by the will creating the limitation, Van Horne v. Campbell, 100 N. Y. 294, and the plaintiff’s claim necessarily failing with the limitation. We agree with the views expressed, as to the construction to be placed upon the will, by the learned judge below, that the wife was given at least an absolute disposing power over the property; but, even so, the limitation, as clearly to be viewed as attempting to create an expectant estate, is not necessarily to be adjudged void for that reason, assuming the first provision to intend a power of disposal merely, and not an actual devise in fee. The case of Van Horne v. Campbell., was an adjudication upon a will which took effect prior to the Revised Statutes, and the decisions proceeded upon the principles "of the common law. 100 N. Y. 310. It has since been held that by the provisions of the Revised Statutes (3 Rev. St. [7th Ed.] p. 2178, §§ 32, 33), the effect of which was expressly left undecided in Van Horne v. Campbell, a remainder such as that considered is not void in its creation by reason of the power of disposition Vested in the first taker. Greyston v. Clark, 41 Hun, 130; 4 St. Rep. 4. But this, nevertheless, cannot affect the present question. In the instrument under consideration there is no trace of a provision that the property held by virtue of the will, and remaining undisposed of at the death of the first taker, should vest in the heirs of the testator, as there was in the case of Greyston v. Clark ; and by the terms of the prior provision, with regard to the property in suit, it was clearly intended to effect an absolute devise to the wife, Suzanna Banzer. Whatever force as authority may be attributable to the somewhat broad expressions of opinion in the case of Greysion- v. Clark, in view of the repeated enunciation by the courts of the rule that an absolute devise is not to be cut down by subsequent words of limitation, Campbell v. Beaumont, 91 N. Y. 464,468; Crain v. Wright, 114 N. Y. 309; 23 St. Rep. 245; Griswold v. Warner, 51 Hun, 17; 20 St. Rep. 430; Oothout v. Rogers, 59 Hun, 100; 35 St. Rep. 500, Roseboom v. Roseboom, 81 N. Y. 356; 15 Hun, 309; Buckland v. Gallup, 22 Wkly. Dig. 23; Jackson v. Robins, 16 Johns. 538; Helmer v. Shoemaker, 22 Wend. 137, the adjudication is, nevertheless, inapplicable to the present case, for here we have every element of a limitation repugnant to a devise in fee, with none of the peculiar characteristics which the courts have sometimes found to bring a case without the rule declaring the subsequent limitation void. The force of the long line of adjudications upon the subject dealing with wills in effect under the Revised Statutes concludes discussion as to the.present existence of the rule noted, while there may. well be a distinction in the case of a will wherein the intention to create a fee is not clearly expressed, with the result that a life estate with power of disposition alone is created, and the rule in Greyston v. Clark be of authoritative effect. The conclusion is that plaintiff’s deceased husband and son took no interest under the will, and that the estate vested in Suzanna Banzer, and descended to her heirs, of whom the plaintiff is not one.

Judgment affirmed, with costs.

All concur.