source: Caselaw Access Project

license: Public Domain

text:
    Mary Good, as Administratrix, etc., Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   — Judgment and order reversed and new trial granted, costs to abide event. Opinion by Dwight, J.


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    Edgar Underhill and others, Respondents, v. George E. Ramsey, Appellant.
   — Order affirmed. Opinion by Barker, P. J.


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    Adolph Sorge, Jr., Respondent, v. The Union and Advertising Company, Appellant.
   — Judgment affirmed.


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    James H. Grimes, Respondent, v. John B. Smith and others, Executors, etc., Appellants.
   Judgment affirmed with costs. Opinion by Dwight, J.


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    Mary G. Durfee, Appellant, v. Henry P. Knowles, Respondent.
   — Judgment affirmed with costs. Opinion by Barker, P. J.


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    John P. Whitney and another, Respondents, v. The Hop Bitters Manufacturing Company, Appellant.
   — Judgment affirmed. Opinion by Dwight, J.


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    In the Matter of the Will, etc., of Elizabeth A. S. R. Rockwell, deceased.
   — Decree reversed on a question of fact and the issues indicated in the opinion ordered to be tried before a jury at the Erie Circuit. Costs of the appeal to abide the final award of costs. Opinion by Haight, J.


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    In the Matter of the Application of L. A. Mallory, Collector, etc., Respondent, to compel George D. Chapman to pay taxes, Appellant.
   Order reversed, without costs. Opinion by Dwight, J.


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    The People of the State of New York, Appellant, v. William Harmon, Respondent.
   — Judgment affirmed- and proceedings remitted to the Court of Sessions of Wyoming county.


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    Charles E. Shepard, Respondent, v. Emeline A. Scovell, Appellant.
   — Order affirmed with ten dollars costs and disbursements. Opinion by Bradley, J.


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    Samuel S. Kennedy, Respondent, v. John W. Scoville, Appellant.
   — Order granting new trial affirmed on the opinion of Coriett, J., at Circuit.


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    George W. Church, Respondent, v. Della Church, Appellant.
   — Judgment modified by striking out the provision for costs, and as so modified affirmed without costs.


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    George Bork, Appellant, v. The City of Buffalo and another, Respondents.
   — Judgment affirmed, with costs. Opinion by Bradley, J.


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    The People of the State of New York, Appellant, v. Catherine B. Williams, Respondent.
   Judgment reversed and proceedings remitted to the Court of Sessions of Monroe countv. Opinion by Dwight, J.


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    Richard B. Myers, Appellant, v. Aurilla J. Myers and others, Respondents.
   — Order affirmed with ten dollars costs and disbursements. Per Curiam opinion left with Barker, P. J.


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    Sylvander B. Partridge, Appellant, v. Leander Russell, Respondent.
   —Judgment affirmed. Opinion by Barker, P. J.;

Haight, J., not sitting.


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    William R. H. Martin and another, Repondents, v. Frank T. Gilbert, as Sheriff, etc , Appellant.
   — J udgment reversed and new trial ordered before another referee, costs to abide event.


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    Henry Dale and others, Respondents, v. Frank T. Gilbert, as Sheriff, etc., Appellant.
   — Judgment reversed and new trial ordered before another referee, costs to abide event.


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    Homestead Land Syndicate, Limited, Plaintiff, v. Wilmot Deloni Matthews, Defendant.
   — Judgment ordered for the plaintiff for a specific performance of the contract set out in tlie submission.


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    In the Matter of the Probate of the Last Will and Testament of Thomas Keegan, Deceased.
   Motion so far granted as to permit the evidence of Christopher N. Dunn to be taken of ihe transactions and circumstances attending the alleged execution of the instrument in question purporting to be the last will and testament of Thomas Keegan, deceased, bearing upon the question of its execution and attestation as such; and his evidence may also be taken bearing upon the question of the identity of the instrument so executed with that offered and admitted to probate, and on the part of the contestant the further evidence of Dennis Dempsey and Patrick Donnelly may be taken bearing upon the same question. It is referred to G. Ñ. Orcott of Hornellsville, Ñ. Y., to take such proofs and report the same to this court, pursuant to section 2586 of the Code of Civil Procedure.


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    Mary J. Kennedy v. The Rochester City and Brighton R. R. Co.
   — Motion to dismiss appeal denied without costs.


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    The People of the State of New York v. Julius Schultz.
   — Judgment affirmed for non-service of papers.


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    In the Matter of the Application of the South Brooklyn Railroad and Terminal Co.
   — Order reversed, with costs and disbursements, and a commission appointed to appraise the land in question unless an issue is made on the facts of the petition; leave’to make such issue is hereby granted. Opinion by Barnard, P. J.


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    Decisions handed down November 14, 1888.
    Webster Billington, Respondent, v. Sullivan J. Billington, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion Per Curiam filed with the clerk of Onondaga county; dissenting opinion by Martin, J.


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    The People of the State of New York, Respondent, v. E. Remington & Sons. In the Matter of William Horrocks and others, Appellants.
   — The order refusing William Horrocks, Louis P. Hiss, Frederick A. W. Armstrong and Alonzo H. Sumner, preferences under chapter 376, Laws of 1885, affirmed, with one hill of costs; but with leave to file new petitions upon the payment of costs. Per Curiam opinion filed with the clerk of Onondaga county.

Hardin, P. J., not sitting.


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    Mary Wall, as Administratrix, etc., Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Opinion by Follett, J.


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    Frank L. Smith, as Receiver, etc., Respondent, v. Curtis A. Barnum and others, Appellants.
   J udgment and order reversed with one bill of costs, and leave granted to the plaintiff to amend his complaint on payment of the costs of this appeal, and one bill of costs upon the demurrer within twenty days. Opinion by Hardin, P. J.,

Martin J., not sitting.


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    Eunice Burch, Respondent, v. Lyman Hall, Appellant.
   — Judgment and order reversed on the exceptions, and a neiv trial ordered, with costs to abide the event. Opinions by Martín and Follett, JJ.


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    Ida B. Sackett, Respondent, v. Thomas H. Breen and Nathaniel F. Breen, Appellants.
   — Judgment and order affirmed, with costs. Opinion by Follett, J.


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    Joseph J. Tompkins, as Administrator, etc., Appellant, v. David W. Chapman and others, Respondents.
   — Order affirmed, with ten dollars costs and disbursements. No opinion;

Martin, J., not sitting.


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    Charles E. Hubbell and George A. Porter, Respondents, v. Daniel Buhler and Elbert Stannard, Appellants, impleaded with Daniel W. Richards and Morton B. Smith, Respondents.
   — The part of the order appealed from is reversed, with ten dollars costs and disbursements. Opinion by Follett, J.


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    Mary Ann Keller and Irene E. Miller, Appellants, v. Susan Ogsbury, Respondent.
   — Judgment affirmed, with costs. Opinion by Martin, J.


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    Thomas Sullivan, Respondent, v. The City of Oswego, Appellant.
   — Judgment and order affirmed, with costs. Opinion by Follett, J.


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    Patrick Wall, Appellant, v. William F. Young, Respondent.
   — Judgment affirmed, with costs. Per Curiam opinion filed with the clerk of Onondaga county.


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    Daniel Harrington, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   — Judgment and order reversed, on the exceptions, and a new trial ordered, with costs to abide the event. Opinion by Martin, J.


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    The People of the State of New York, Respondent, v. John D. Riordan, Appellant.
   — The judgment is reversed, a new tiial ordered, and the return to and decision of this court are remitted to the Court of Sessions of Herkimer county. Opinion by Martin, J.


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    James McNamara, Respondent, v. Alpheus G. Babcock, Appellant.
   — Judgment of the County Court of Oneida county, and that of the Justice’s Court, reversed, with costs. Opinion by Martin, J.


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    Christian J. Rancher, Respondent, v. William Cronk, as Trustee of School District No. 7, of Towns of Ava and Western, Appellant.
   — Judgment and order of the Oneida County Court afiirmed. Opinion by Hardin, P. J.; dissenting opinion by Martin, J.


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    Joseph E. Fell, Respondent, v. The New York Locomotive Works, Appellant.
   — Judgment affirmed, with costs. Opinion by Hardin, P. J.


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    Henry Hungerford, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.
   — Judgment and order affirmed, with costs. Opinion by Martin, J.


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    Simon Uhlmann and Frederick Uhlmann, Appellants, v. Nathan Brownell and others, Respondents.
   — Judgment affirmed, with costs. Opinion by Martin, J. ;

Follett, J., not voting.


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    Dominick Haley, Respondent, v. Frederick Williams, Appellant.
   — Judgment affirmed, with costs. Opinion by Follett, J.


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    John F. Thomas and Charles F. Crandall, Apellants, v. George M. Lee, Respondent.
   Judgment of the County Court affirmed, with costs. Opinion by Follett, J.;

Hardin, P. J. not voting.


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    The People of the State of New York, Respondent, v. Oren S. Potter, Appellant.
   — The judgment is affirmed, and the return to and decision of this court are remitted to the Court of Sessions of Jefferson County. Opinion by the court filed with the clerk of Onondaga County.


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    George Collins, Respondent, v. William Adams, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by Martin, J.


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    J. Warren Merchant, Respondent, v. Conrad N. Jordan, Appellant.
   — Judgment and order affirmed, with costs. Opinion by Hardin, P. J.;

Follett, J., not voting.


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    Henry O. Kenyon, Respondent, v. John F. Luther and Addison L. Upham, Appellants.
   Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event. Opinion by M'artm, J.


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    Timothy H. Teall, Respondent, v. The Consolidated Electric Light Company, Appellant.
   Judgment affirmed, with costs. Opinion by Hardin, P. J.


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    Henry C. Shoemaker, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   — Judgment and order affirmed with costs. Opinion by Follett, J.


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    Fannie J. Bent, as Administratrix, etc., Appellant, v. Mary E. Bent and Myron H. Bent, Respondents.
   — Judgment affirmed, with costs. Opinion by Hardin, P. J.


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    Decisions handed down November 21, 1888.
    Benjamin W. Roscoe and another, Respondents, v. Henry Lawson, Appellant, Impleaded, etc
   Order affirmed, with ten dollars costs and disbursements.


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    Frank L. Walrath and another, Respondents, v. Henry Lawson, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


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    Frank L. Walrath and another, Respondents, v. Henry Lawson, Appellant, Impleaded, etc.
   Order afiirmed, with ten dollars costs and disbursements.


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    Hiram Copley, Respondent, v. Charles R. Knapp, Appellant, Impleaded, etc.
   — The order appealed from, modified, so as to strike from the order of August 27, 1888, the following provision: ‘ ‘ And it is further ordered that the said Charles R. Knapp produce all letters, communications and telegrams between himself and the said defendant Doran & Wright Company (Limited), in any manner relating to the relations of said Doran & Wright Company (Limited), and said Knapp, and also relating in any manner to the transactions referred to m the complaint,” and as so modified affirmed, without costs to either party.


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    The People of the State of New York ex rel. Emily Works, Appellant, v. Ebenezer Allen, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.

Kennedy, J., not sitting.


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    Joseph Taylor, Respondent, v. Charles Hall, Appellant.
   — That part of the order appealed from which denied the motion to set aside the execution herein is reversed, with ten dollars costs and disbursements, and the motion is granted with ten dollars costs.


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    Maria A. Shaw, Respondent, v. Peter B. Myers and another, Appellants.
   — Order affirmed on the opinion of Menvin, J., at Special Term, with ten dollars costs and disbursements.

Kennedy, J., not sitting.


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    Charles E. Lewis, Respondent, v. Eli Knapp, Appellant.
   — Judgment affirmed, with costs.


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    In the Matter of the Estate of Eliza W. Cady, deceased.
   — Order affirmed, with costs, to be paid by the appellant personally.


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    Charles W. Bardeen, Appellant, v. Charles W. Smith, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.

Kennedy, J., not sitting.


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    Warren Jones, Appellant, v. The Southern Central Railroad Company, Respondent.
   — Judgment affirmed, with costs.


author: — Per Curiam.

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    Daniel B. Hess, Respondent, v. Allen Benedict, Appellant.

   — Per Curiam.

On the trial the plaintiff offered in evidence a portion of the account between the parties, as kept by the defendant, which was received. The defendant then offered in evidence the remainder of the same account, which was objected to as incompetent and immaterial. This objection was sustained. In this the referee erred. The plaintiff having offered and the referee having admitted a part of the account, the defendant was entitled to have the -whole admitted. Judgment reversed and a new trial ordered, with costs to abide the event.


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    Frederick Erhard, Respondent, v. Joseph Waller, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.

Kennedy, J., not sitting.


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    John A. Collins, Respondent, v. George K. Collins, Mary A. Collins, and Kate Collins, Appellants, Impleaded with others.
   — The order granted September 8,1888, and entered September 25, 1888, is reversed, and the three interlocutory judgments entered against the appellants are vacated and set aside, with ten dollars costs and printing disbursements in one case, and ten dollars costs of the motion at Special Term, as per order settled.


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    Frederick Masten, Respondent, v. Vincent W. Bryant, Appellant.
   — Judgment affirmed, with costs, on opinion of Edwards, County Judge of Broome county.


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    William T. Cross, Respondent, v. Mortimer Spring, Appellant.
   — Judgment and order affirmed, with costs.


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    The People of the State of New York, Respondent, v. Frank Grace and Louis Clark, Appellants.
   — The judgment appealed from is affirmed and the clerk is directed to enter judgment and remit a certified copy with the return and decision of this court to the Court of Sessions of Onondaga county, pursuant to sections 517 and 518 of the Code of Criminal Procedure.


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    Philander W. Fobes, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   — Judgment affirmed; with costs.


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    Calvin S. Bunnell, Respondent, v. Margaret A. Bunnell, Appellant.
   — Judgment affirmed.

Kennedy, J., not sitting.


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    William Church and another, as Overseers of the Poor of the Town of Burlington, Respondents, v. Melvin Van Wagner, Appellant.
   — interlocutory judgment affirmed, with costs, with leave to the defendant to answer within twenty days on the payment of the costs of the demurrer and of this appeal.


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    Andrew Van Woert, Appellant, v. Willis Ackley, Respondent.
   — Order affirmed, wth costs.


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    Alfred G. Meyers and others, Appellants, v. William L. Scott and others, Respondents.
   Judgments reversed and judgments ordered for the plaintiffs on the demurrers, and the defendants should be permitted within twenty days to answer the complaint, on payment of the costs of the demurrer and the costs of the appeals. Opinion by Daniels, J.


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    Margaret Porter, Plaintiff, v. Michael Carolin, Executor, etc., Defendant.
   — Judgment ordered as directed in opinion. Opinion oy Daniels, J.


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    Adolph Sternfield and others, Respondents, v. The Williamsburg City Fire Insurance Co., Appellant.
   — Judgment as directed in opinion. Opinion by Daniels, J.


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    Adolph Sternfield and others, Respondents, v. The Western Insurance Company, Appellant.
   — Judgment ordered as directed in opinion. Opinion by Daniels, J.


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    In the Matter of the petition of James Galway to Vacate Assessment, etc.
   — Order affirmed, with usual costs.


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    In the Matter of the accounting of Oliver L. Jones and others. Oliver L. Jones and others, Appellants, v. Lilian L. Jones, Respondent.
   — Judgment ordered as directed in opinion Opinion by Brady, J.


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    Martin V. B. Smith and others, Respondents, v. James White and others, Appellants.
   — Judgment affirmed with costs. Opinion by Van Brunt, P, J.


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    Constance B. Price, Respondent, v. Walter J. Price, Appellant, impleaded, etc.
   — Order affirmed, with ten dollars costs and disbursements Opinion by Daniels, J.


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    Euphemia E. Kennedy and others, Plaintiffs, v. William H. Burr and others, Defendants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


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    Isaac Wolf, by his Guardian, Appellant, v. The Houston, West Street and Pavonia Ferry Railroad Company, Respondent.
   — Judgment affirmed. Opinion by Daniels, J.


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    Alfred N. Beadleston, Respondent, v. Mary E. Beadleston, Appellant.
   — Judgment reversed and new trial ordered. Opinions by Daniels and Bartlett, JJ.


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    Alfred N. Beadleston, Respondent, v. Mary E. Beadleston, Appellant.
   — Affirmed without costs. Opinion by Daniels, J.


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    Alfred N. Beadleston, Appellant, v. Mary E. Beadleston, Respondent.
   — Order reversed, without costs. Opinion by Daniels, J.


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    Alfred N. Beadleston, Respondent, v. Mary E. Beadleston, Appellant.
   — Appeal from Special Term order directing trial of action to proceed from day to day, etc., dismissed, without costs. Opinion Per Cumam.


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    Mary A. Foster, Appellant, v. James Easton and others, Respondents.
   — Judgment and order affirmed, with costs. Opinion by Bartlett, J.


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    The People of the State of New York ex rel. John H. Post, v. Hugh J. Grant, Sheriff, etc.
   Order affirmed, With ten dollars costs and disbursements. Opinion Per Uunam.


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    William H. M. Sanger, Respondent, v. James M. Seymour and others, Appellants.
   — Judgment reversed and new trial ordered, with costs to abide the event. Opinion by Bartlett, J.


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    Ellis K. Powers, Executor, etc., Appellant, v. Francis W. Savin and others, Respondents.
   Judgment reversed, and new trial ordered before another referee, with costs to the plaintiff, to abide event. Opinion by Macomber, J.


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    Frank A. Gamble, Respondent, v. Edward Hine, Appellant.
   — Judgment affirmed, with costs. Opinion by Macomber, J.


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    Charles T. Jackson, Appellant, v. William R. Appleton, Respondent.
   — Order vacating order of arrest affirmed, with costs and disbursements. Opinion by Macomber, J.


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    Adam Geyer, Appellant, v. Henry D. Brewster and others, Respondents.
   — Judgment affirmed, with costs. Opinion by Macomber, J.


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    Adam Geyer, Appellant, v. George Lawrence and others, Respondents.
   — Judgment affirmed, with costs. Opinion by Macomber. J.


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    Anna E. Rudd and others, Appellants, v. Margaret E. Beardsley, Respondent.
   — Judgment affirmed, with costs. Opinion by Macomber, J.


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    Maria H. Hotchkiss, Administratrix, etc., and others, Appellants, v. Charles A. Hotchkiss, Respondent. Same, Appellants, v. Anna M. Hotchkiss, Respondent.
   Order appealed from affirmed, with ten dollars costs as of one action and disbursements in both. Opinion by Macomber, J.


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    Henry Bornkamp, Appellant, v. Gustav Boehm and others, Respondents.
   — Judgment affirmed, with costs. Opinion by Macomber, J.


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    The National State Bank, etc., Respondent, v. George H. Richardson, Appellant.
   — Judgment affirmed, with costs. Opinion by Macomber, J.


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    Ignatius Macmanus and others, Appellants, v. Horace K. Thurber and others, Respondents.
   Judgment affirmed, with costs. Opinion by Macomber, J.


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    Albert G. Dearing, Appellant, v. Cyrus A. Sears, Respondent.
   — Judgment reversed, and new triaf granted, with costs to the appellant, to abide the event. Opinion by Bartlett, J.


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    Solomon Sayles, Respondent, v. James Jourdan, Appellant.
   — Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


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    Julia A. Young, Respondent, v. Southrick E. Hebbard, Appellant.
   — Judgment and order affirmed. Opinion by Daniels, J.


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    Frances L. Ledyard, as Administratrix, etc., Appellant, v. William L Bull and others, Respondents.
   — Judgment affirmed, with costs. Opinion by Van Brunt, P. J.; dissenting opinion by Daniels, J.


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    Charles E. Copeland and another, Respondents, v. The Johnson Manufacturing Company, Appellant.
   — Judgment affirmed, with costs. Opinions by Van Brunt, P. J., and Daniels, J.


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    Morris Rubens and others, Plaintiffs, v. Percy C. Drake and others, Defendants.
   — Judgment and order affirmed, with costs. Opinion by Van Brunt, P. J.


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    Aloah Fowler and others, Appellants, v. Ada Ingersoll and others, Respondents.
   — Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by Van Brunt, P. J.


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    Matter of the Petition of George W. McLean, Receiver of Taxes, etc.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


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    Herman Gotze and others, Respondents, v. John Dunphy, Appellant.
   — Judgment and order reversed and new trial ordered, with costs to defendant, to abide event. Opinion by Daniels, J.


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    George D. Smith, Appellant, v. M. Edwin Servis, Respondent.
   — Order modified, and as modified affirmed. Opinions by Daniels and Bartlett, JJ.


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    Almira Lee, Respondent, v. The Co-operative Life and Accident Association of the United States, Appellant.
   — Order reversed, with usual costs and disbursements, and motion granted setting aside attachment. Opinion by Daniels, J.


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    George Rice, Respondent, v. John D. Rockefeller and others, Appellants.
   — Order modified as directed in opinion, without costs. Opinion by Daniels, J.


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    In the Matter of the Judicial Settlement of Accounts of Henry R. Marshall and others, Executors, etc.
   — Order affirmed as directed in opinion. Opinion by Daniels, J.


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    Isaac Wolf, by his Guardian, etc., Respondent, v. The Houston Street, etc.. Railroad Company, Appellant.
   — Order affirmed, with ten ollars costs and disbursements. Opinion by Daniels, J.


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    In the Matter of the Estate of Winifred Austin (In re Leonidas S. Osborn).
   — Order reversed, with ten dollars costs and disbursements, with leave to renew upon additional papers. Opinion by Van Brunt, P. J.


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    In the Matter of the Estate of Winifred Austin (In re Winifred Osborn).
   — Order reversed, with ten dollars costs and disbursements, with leave to renew upon additional papers. Opinion by Van Brunt, P. J.


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    In the Matter of Thomas J. Clute, etc.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


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    Arthur Dyett, as Survivor, etc., Respondent, v. James M. Seymour and others, Appellants.
   Order reversed, with ten dollars costs and disbursements to appellant, to abide final event, and leave to plaintiff, after examination of defendant, etc., to apply to court for order directing production'of books for inspection. Opinion by Van Brunt, P. J.


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    The People of the State of New York, Respondent, v. Macek Pavlik, Appellant.
   — Judgment ana conviction reversed and new trial granted. Opinion by Ingalls, J.


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    The People of the State of New York, Responddent, v. Earl Fox, Appellant.
   —Judgment and conviction reversed and new trial granted. Opinion by Learned, P. J.


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    Emeline Bowers, Appellant, v. William C. Smith and others, Executors, etc., Respondents.
   Judgment affirmed, with costs. Opinion by Landon, J.


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    Amasa R. Moore, Appellant, v. John M. Francis and others, Respondents.
   — Judgment affirmed, with costs.' Opinion by Learned, P. J., and Landon, J.


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    Evah Brothers, Respondent, v. The California Insurance Company, Appellant.
   — Judgment and order affirmed,with costs. Opinion by Ingalls, J.


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    Jacob H. Snyder, Appellant, v. Thomas O’Connor, Respondent.
   — Judgment affirmed, with costs. Opinion by Landon, J.


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    John A. Foley, Respondent, v. The City of Troy, Appellant.
   — Judgment and order affirmed, with costs. Opinion by Ingalls, J.


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    George Ney, Respondent, v. The City of Troy, Appellant.
   — Judgment and order affirmed, with costs. Opinion by Learned, P. J.


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    John B. Gale, Respondent, v. The Fitchburg Railroad Company. Same v. Same.
   — Judgment reversed, new trial granted, costs to abide event. Opinion by Landon, J.;

Learned, P. J., dissenting.


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    Jacob Grimm, Respondent, v. The village of Greenbush, Appellant.
   — Judgment and order reversed, new trial granted, costs to abide event. Opinion by Learned, P. J.;

Ingalls, J., dissenting.


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    The People of the State of New York ex rel. Boston, Hoosac Tunnel and Western Railway Company, Respondent, v. George Haner and others, Assessors, Appellants. Five other similar cases.
   — Order affirmed, with fifty dollars costs and disbursements against appellants personally. Opinion by Learned, P. J.


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    Adolphe Clement, as Administrator, etc., Appellant, v. Rankin Knitting Company, Respondent.
   — Judgment affirmed, with costs. Opinion by Learned, P, J.;

Ingalls, J., not acting.


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    James A. Goodrich, as Assignee, etc., Respondent, v. Seth L. Clute, Appellant.
   — Judgment affirmed, with costs. Opinion by Ingalls, J.


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    Patrick Hanley, Respondent, v. Patrick N. Crowe, as survivor, etc., Appellant.
   — Judgement modified by reducing principal to $1,674.53, and adding interest from commencement of action thereon, and as modified affirmed without costs. Opinion by Landon, J.


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    Henry Allen and others, Appellants, v. German American Insurance Company of New York, Respondent.
   — Judgment affirmed, with costs. Opinion by Learned, P. J.


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    Matter of Water Commissioners v. George Clarke.
   — Order reversed and proceedings dismissed,with costs, without prejudice to another application. Opinion by Learned, P. J.


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    Samuel N. Bacon, Respondent, v. The United States Mutual Accident Assurance Association, Appellant.
   — Judgment and order affirmed, with costs. Opinion by Landon, J.


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    Peter J. Lansing, Respondent, v. Samuel Stevens, Appellant, impleaded, etc.
   — Judgment of County Court reversed, with costs. Opinion by Ingalls, J.


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    Locadie A. V. Cassagne, Respondent, v. James M. Ostrander, Appellant, impleaded with others.
   — Interlocutory judgment affirmed, with costs, with leave to withdraw demurrer and answer on payment of costs. Opinion by Landon, J.


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    Marcus G. Cunningham, Respondent, v. Massena Springs, etc., Railroad Company, Appellant.
   Order modified as stated in the opinion, with ten dollars costs and printing, disbursements to abide event. Memorandum by Learned, P. J.


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    Raymond Christman, Respondent, v. John W. Thatcher, as Overseer, etc., Appellant.
   — Motion to dismiss appeal denied, with ten dollars costs.


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    Walter A. Mann, Appellant, v. Henry G. Dennis, Respondent.
   — Order of County Court affirmed, with ten dollars costs and printing disbursements. Memorandum by Learned, P. J.


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    In the Matter of the compensation of John H. McFarland.
   — Order to show cause dismissed and application denied. Memorandum by Landon, J.


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    George H. Hearman, v. Jacob H. Snyder.
   Judgment affirmed, with costs. Opinion by Learned, P. J.


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    Dennis Maher, Respondent, v. Mrs. George W. Wilson, Appellant.
   — Judgment affirmed, with costs. Opinion by Learned, P. J.

Ingalls, J., taking no part.


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    In the Matter of the Estate of Webster Wagner. Two cases.
   — Motion granted, with ten dollars costs.


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    Richard Hoag, Respondent, v. Thyrsa E. Hatch and others, Appellants.
   Judgment affirmed, with costs. Memorandum by Learned, P. J.


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    Rutsen Hunt, Appellant, v. Charles A. Van Deusen, Respondent.
   Judgment of County Court affirmed, with costs. Memorandum by Learned, P. J.


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    The Farmers and Drovers’ Bank, Respondent, v. Herman Koehler, Appellant, impleaded, etc.
   Judgment and order affirmed, with costs. Barnard, P. J., not sitting.


text:
    In the Matter of Settlement of William P. O’Connor, Executor.
   — Part of decree appealed from reversed, with costs to executor out of the estate. Opinion by Barnard, P. J.


text:
    Sidney V. Havens, Plaintiff, v. Adeline P. Havens and others, Defendants.
   Judgment affirmed, with costs. Opinion by Pratt and Dykmanj JJ.


text:
    Michael Fitzgerald, Administrator, etc., v. Long Island Railroad Company.
   — Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    Matthew Marx, Appellant, v. Elizabeth McLoud, Respondent.
   — Order affirmed, with ten dollars costs, besides disbursements. Opinion by Dykman, J. '


text:
    John Franklin, Respondent, v. The Forty-second Street and Grand Street Ferry Railroad Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    John C. Provost, Respondent, v. Thomas F. Donohue, Appellant.
   — Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by Pratt, J.


text:
    Seward Baker, Respondent, v. William W. McClellan, Appellant.
   — Order overruling demurrer to complaint affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    Herman Cohen, Appellant, v. Asa Morehouse and others, Respondents.
   Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    Maria E. Brundage, Respondent, v. Theresa L. Rust, Appellant.
   — Decree of surrogate reversed, with costs. Opinion by Pratt, J.


text:
    Samuel T. Sudlow, Respondent, v. George W. Mead, Appellant.
   —Order affirmed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    Matter of Settlement of George W. Bergen.
   Decree affirmed, with costs. Opinion by Dykman, J.


text:
    Alven Reilly, Appellant, v. The Town of Greenburgh, Respondent.
   — Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.;

Dykman, J., not sitting.


text:
    Bernard Hufnagel and others, Appellants, v. The Village of Mount Vernon, Respondent.
   — Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    Frederick H. Smith, Respondent, v. The Isle of Wight Company and others, Appellants.
   Order affirmed, with costs and disbursements. Opinion by Pratt, J.;

Dykman, J., not sitting.


text:
    James Clark, Appellant, v. William L. Gallagher and Frank Gallagher, Respondents.
   — Order affirmed, with costs and disbursements. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    Joseph O. V. Prochazka v. Linner V. Prochazka.
   Order reversed, with costs and disbursements. Opinion by Pratt, J.;

Dykman, J., not sitting.


text:
    Spencer D. C. Van Bokkelein, Respondent, v. Robert H Berdell, Appellant.
   — Judgment affirmed, with costs. Opinion by Barnard, P. J.


text:
    George C. Corlis v. John H. Byron.
   — Motion denied, witli ten dollars costs. Opinion by Barnard, P. J.


text:
    Mary P. Taggart, Respondent, v. Mary G. Rogers and others, Appellants.
   — Motion granted, without costs. Opimonlby Barnard,P.J.


text:
    Isaac Sisson v. Samuel Sisson
   —Judgment affirmed, with costs. Opinion by Pratt, J.;

Barnard, P. J., not sitting.


text:
    The People of the State of New York ex rel. James W. Slaght, Appellant, v. Jefferson Patten, Respondent.
   Order affirmed, without costs. Opinion by Pratt, J.;

Barnard, P. J., not Sitting.


text:
    The People of the State of New York ex rel. Adolph Wasserman, v. James D. Bell, Commissioner, etc.
   — Order affirmed, with costs. Opinion by Barnard, P. J.;

Dykman, J., dissenting.


text:
    Richard W. Beyrich, Appellant, v. Theodore A. Liebler, Jr., Respondent.
   — Judgment reversed and new trial granted, costs to abide event. Opinion by Barnard, P. J., and Pratt, J.


text:
    Nason Manufacturing Company, Respondent, v. Benjamin F. Stephens, Appellant.
   — Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    Kate C. Reynolds, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   — Judgment affirmed, with costs. Opinion by Barnard, P. J.


text:
    The Richardson and Boynton Company, Respondent, v. The Brooklyn Mill and Lumber Company, Repondent, James Reid (owner), Appellant.
   — Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    Nathan B. Munday, Appellant, v. John T. Barrett and another, as surviving Executors, etc., Respondents.
   — Judgment affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    Constantine W. Benson, Respondent, v. Clara McNamee, Appellant.
   —Judgment affirmed,with costs. Opinion by Pratt, J.;

Barnard, P. J., not sitting.


text:
    Matter of Probate of Will of Daniel Totten, Deceased.
   — Decree reversed and issue to be made for a jury of Suffolk county. Opinion by Barnard P, J.


text:
    Frederick J. Smith, Respondent, v. James H. Ruggles, Appellant.
   — Judgment affirmed, with costs. Opinion by Barnard, P. J.


text:
    Elizabeth Greenleaf and another, Appellants, v. The Brooklyn, Flatbush and Coney Island Railroad Company, Respondents.
   — Judgment reversed and new trial granted, costs to abide event. Opinion by Dykman, J.;

Pratt, J , dissenting.


text:
    Matter of Probate of Will of Mary Hall, Deceased.
   — Decree affirmed, with costs. Opinion by Barnard, P. J.


text:
    Hugh D. Kelly, Respondent, v. George S. Wheeler and others, Appellants.
   — Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    Jacob Cortright, Respondent, v. The Village of Mount Vernon, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.;

Dykman, J., not sitting.


text:
    Charles E. Young, Appellant, v. Frederick Grill, Respondent.
   — Judgment' and order denying new trial affirmed, with costs. Opinion by Dykman, J.


text:
    Joshua Hitchcock, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   — Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Oninion by Pratt, J.


text:
    Charles Lighte and another, Respondents, v. Robert Finan, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.


text:
    James White, Respondent, v. Andrew Mowbray, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.


text:
    William S. Wetmore, Respondent, v. Janette Pirsson, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.

Barnard, P. J., not sitting.


text:
    Isaac S. Lydecker and others, Respondents, v. Richard P. Eells, Appellant.
   — Judgment of City Court and justice reversed, with costs. Opinion by Barnard, P. J.


text:
    Clarence R. Conger, Appellant, v. Wolsey T. Weyant and another, Respondents.
   — Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    Thomas R. Sheffield, Respondent, v. Christian Loeffler, Appellant.
   — Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    William Evans, Plaintiff, v. The United States Life Insurance Co., Defendant.
   — Order affirmed, with costs and disbursements. Opinion by Pratt, J.;

Barnard, P. J., not sitting.


text:
    Matter of Probate of Will of Bridget Harrold, deceased.
   — Decree reversed and will admitted to probate. Opinion by Dykman, J.;

Barnard, P. J., dissenting.


text:
    William Kain, Respondent, v. The New York and N. E. R. R. Co., Appellant.
   — Judgment affirmed, with costs. Opinion by Pratt, J.;

Dykman, J., not sitting.


text:
    Thomas Kain, Respondent, v. New York and N. E. R. R. Co., Appellant.
   — Judgment affirmed, with costs. Opinion by Pratt, J.;

Dykman, J., not sitting.


text:
    The People of the State of New York ex rel. Katharine H. Richmond, v. John H. Wilson and others, as Trustees, etc.
   — Proceedings affirmed, with costs. Opinion by Barnard, P. J.


text:
    The People of the State of New York ex rel. William A. Smith, v. John H. Wilson and others, as Trustees, etc.
   — Proceedings affirmed, with costs. Opinion by Barnard, P. J.


text:
    Frank L. Warrin, Appellant, v. John E. Van Nostrand, Respondent.
   — Judgment and orders affirmed, with costs. Opinion by Dykman, J.


text:
    The People of the State of New York ex rel. Isaac B. Lefurgy v. The New York and Northern Railroad Company.
   — Judgment affirmed, with costs. Opinion by Pratt, J.;

Barnard, P. J., not sitting.


text:
    In the Matter of the Application of the Staten Island Rapid Transit Railroad Company to Acquire Title.
   — That portion of the order appealed from which relates to the damages, reversed ; and Theodore C. Vermilye, Henry T. Metcalf, Gerard M. Stevens appointed as a new commission. No opinion ; order to be settled by Mr. Justice Pratt. Same order in the other appeal.


text:
    John R. Hinz, as Administrator, etc., Respondent, v. John H. Starin, Appellant.
   — Judgment and order denying new trial reversed and new trial granted; costs to abide event. Opinion by Pratt, J. ;

Dykman, J., dissenting.


text:
    In the Matter of the Petition of The New York and Brooklyn Bridge, Respondent, to Acquire Real Estate of John Greenewald and others, Appellants.
   — Order affirmed, with costs and disbursements. Opinion by Brown, J.


text:
    Decisions handed down December 31, 1888.
    In the Matter of the Guardianship of Alberta Van Vranken, an Infant.
   —Orders reversed without costs to any party, and without prejudice to a renewal of the application by any party. Opinion by Learned, P. J.


text:
    Joseph Sondheimer, Appellant, v. The Troy and Lansingburgh Railroad Company, Respondent.
   — Judgment of County Court reversed, and that of justice affirmed, with- costs. Opinion by Learned, P. J.


text:
    In the Matter of the Application against the Highway Commissioners of Glen and Florida.
   Order affirmed, with ten dollars costs and printing disbursements, without prejudice to the public’s right to the alleged old highway, or to the renewal of the application if a changed condition should render it expedient. Opinion by Landon, J.


text:
    In the Matter of William E. Spier and others, Respondents, v. The Commissioners of Highways of the Town of Moreau, etc., Appellants.
   — Order affirmed, with ten dollars costs and printing disbursements. Opinion by Learned, P. J.


author: Haight, J. :

text:
    REUBEN W. GIFFORD, as Receiver, etc., of CHAUNCEY W. RISING, Appellant, v. CHAUNCEY W. RISING and Others, Respondents.

      Annuity payable by a devisee of land, — no trust is created — it is subject to the claims of the creditors of the annuitant.

    An action, in the nature of a creditor’s bill, was brought by a receiver appointed in supplementary proceedings to reach a bequest or annuity, payable under the will of the father of the judgment-debtor, Chauncey W. Rising,to him and to his wife Jane for their support and that of their family, amounting to $300 a year, to be paid to them by Aretus W. Rising, in part consideration of lands devised to Aretus.

      Held, that there existed no trust in Aretus W. Rising, under the provisions of the third subdivision of section 55 of title 3, article 3, chapter 1, part 3 of the Revised Statutes, authorizing a trust to be created to receive the rents and profits of lands, and to apply them to the use of a designated person.
    That the devise of the land to Aretus W. Rising being absolute in its terms, his acceptance thereof made him a debtor to the parties entitled to receive the annuity under the provisions of the will.
    That the annuity given by the will was subject to the claims of the creditors of the annuitant, and the statement contained in the will that it was for the latter’s support did not make it exempt from the claims of his creditors.

      Degraw v. Clason (11 Paige, Ch., 136) followed.
    Appeal from a judgment in favor of the defendants, entered in Niagara county August 31, 1887, upon the report of a referee.

      Henry M. Davis, for the appellant.

      George D. Judson, for the respondents.
   Haight, J. :

This action is in the nature of a creditor’s bill, prosecuted by the plaintiff, as receiver appointed in' supplementary proceedings, to reach a bequest or annuity payable to Chauncey W. Rising under the will of his father, Samuel S. Rising. The referee has found, as facts, that Samuel S. Rising died leaving a last will and testament, which has been duly proved and admitted to probate by the surrogate of Niagara county, in which he devised to his son, - Aretus W. Rising, liis farm situated in Niagara county, particularly describing it, but subject to the following provisions: “ But the aforesaid premises shall be subject to, and liable for the payment of the following named bequests, which are made payable by him : * * * The bequest to Chauncey W. Rising, his wife and children, as expressed in article fifth of this will.” By article 5 he gives and devises to his son, Chauncey W. Rising, and to his wife, Jane, for their support and that of their family, $200 per year, from one year after his decease, during their lives; to be paid to them by Aretus W. Rising, semi-annually, in part consideration of lands devised to him. The referee has found, as a conclusion of law, that the $200 per annum is a valid annuity in trust, created by the will for the special purpose of assuring support and maintenance and education to Chauncey W. Rising and Jane, his wife; and that each of them has an individual, indivisible, inalienable and unassignable interest therein to the extent of their support, maintenance and education, and that of their family; and that the complaint should be dismissed upon the merits.

An exception taken to this conclusion presents the only question which we are here called upon to review. If the proyisions of the will create a trust, then the conclusion should be sustained. Otherwise not.

The statutes provides that “Express trusts may be created for any or either of the following purposes : 1. To sell lands for the benefit of creditors. 2. To sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon. 3. To receive the rents and profits of lands and apply them to the use of any person during the life of such person, or for any shorter term; subject to the rules prescribed in the first article of this title. 4. To receive the rents and profits of lands and to accumulate the same for the purposes and within the limits prescribed in the first article of this title,” (R. S., part 2, chap. 1, art. 2, tit. 2, § 55; 1 id., pp. 728, 729.)

Section 57 provides that “Where a trust is created to receive the rents and profits of lands and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and support «of the person for whose benefit the trust is created, shall be liable in equity to the claims of the creditors of such person, in the same manner as other personal property, which can not be reached by an execution at law.”

Section 45 (1 R. S., 727), provides that “ Uses and trusts, except as authorized and modified in this article, are abolished,” etc. These provisions pertain to real estate. Trusts may be created in reference to personal estate as well, and when so created, the creditor or receiver. may maintain actions in reference to such estate in the same cases in which it may be maintained in reference to real property. (Williams v. Thorn, 70 N. Y., 270.)

But, in the case under consideration, if there be a trust, it is one created out of real property, and, in order to be valid, must be within the provisions of the. statute. No claim is made that any trust was created under the first, second or fourth subdivisions of section 55. If any, it must be under the third subdivision of the section, which is to receive rents and profits of land and to apply them to the use of some person designated. But it will be observed, upon reference to the will, that no rents or profits are reserved to be received and appropriated.

A trust is a right of property, real or personal, held by one party for the benefit of another. One of the essential features of a trust is the creation of an estate or principal sum from which rents or profits may be derived that may be used for the benefit of another. No express words of trust are found in the will. . Such, however, may not be necessary if it appear that it was the intention of the testator to create a trust. The devise to Aretus is absolute in terms. It devises to him the farm in fee. It is charged with the payment of the bequests named. He accepted the terms and conditions of tlie devise and entered into tlie possession of the land. By so doing he undertook and agreed to pay the bequests charged thereon as they became due and payable under the provisions of the will. These bequests are not made contingent upon the collection of rents or profits from the real estate devised. ' They are, as expressed in the will, part of the consideration for the land. In other words, the testator took this means of dividing up his estate among his children. Instead of partitioning his farm between them, he gave it all to one son, but, upon the condition of his doing so, required him to pay the legacies charged thereon. These legacies Aretus becomes Hables to pay on accepting the conditions and' entering into possession. Payment thereof may be enforced by an action at law, even though there may be no rents or profits from the lands.

In the case of Brown v. Knapp (79 N. Y., 136), it ivas held that where a legacy was given, and is directed to be paid by the executor, who is a devisee of real estate, such estate is charged with the payment of the legacy; and the devisee, upon accepting the devise, becomes personally bound to pay the legacy, and this, although the land devised to him proves to be less in value than the amount of the legacy ; and the payment of such a legacy may be enforced by a suit in equity against the real estate, or by an action directly against the devisee, upon the promise to pay, implied by the acceptance.

. In the case of Gridley v. Gridley (24 N. Y., 130), a will gave all the testator’s real and personal property, and declared that the donee was to pay all the testator’s debts and a certain annuity. It was held that the acceptance of the gift created a personal liability, upon which an action may be maintained at law without any express promise. (See, also, Dodge v. Manning, 1 Comst., 298 ; Van Orden v. Van Orden, 10 Johns., 30.) If we are correct in the view that Aretus has become personally liable to pay the bequest or annuity upon his implied promise on accepting the devise, it would seem to follow that there was no trust created; for, if there was a trust, his acceptance of it Avould only make him liable in equity to account for the use made by him of the trust estate. The design of the statute was to enable one to contribute to the support of another Avho, for any cause, ought not, in his judgment, to have the management or control of property by vesting the title and management thereof in a trustee for that purpose. The title, when so vested, is inalienable by the beneficiary, and is out of the reach of his creditors. The estate vested in Aretus, as we have seen, was an absolute estate, and was for his own comfort and enjoyment, subject only to' the payment of the legacies mentioned as a part of the consideration. He is not made a trustee for the payment of the legacies mentioned as a part of the consideration. He is not made a trustee, and is not liable to pay as such; for the charging of the payment of legacies or debts upon lands creates no trust. (Dill v. Wisner, 88 N. Y., 153, 158; Livingston v. Gordon 84 id., 136, 142.)

The fact that the bequest to Chaunceyis an annuity, payable semiannually dining his life, does not change the rule. Heither does the fact that it is specified in the will that it was for the support of himself and wife and their family. An, annuity or legacy may be reached by creditors in equity, and the statement that it is for support does not render it exempt.

The case of Degraw v. Clason (11 Paige Ch., 136) appears to be in point and controlling upon the question presented on this review. In that case an annuity was bequeathed by the testator to his widow and was charged upon his real and personal estate. It was held liable for the debts of the widow and that the same may be reached by a creditor’s bill against her. The question as to whether the receiver can reach more of the legacy than is due and payable is not now before us, and is not considered.

It follows that the judgment must be reversed and a new trial ordered before another referee, costs to abide the final award of costs.

Barker, P. J.; Bradley and Dwight, JJ., concurred.

Judgment reversed and new trial ordered before another referee, costs of this appeal to abide the final award of costs.


author: Barker, P. J.:

text:
    FREDERICK B. POTTER, Appellant, v. SYLVANUS K. GREENE and WILLIAM EPES, as Executors, etc., of DAVID GREENE, Deceased, Respondents.

      Evidence—declm'ation of one executor cannot be received, in evidence to establish a demand, against his co-exeeutor — when the ground upon which an objection rests is sufficiently stated.

    In an action, brought to recover the value ol the services rendered by the plaintiff while under the age of twenty-one years, in pursuance of the terms of certain articles of apprenticeship entered into between the plaintiff and the defendant’s testator, the plaintiff contended that while living with the deceased he became discontented and dissatisfied, and determined in his own mind to disaffirm the contract and leave the family of the testator; that he had communicated to the testator his purpose to do so, and that he was denied the exercise of the right to disaffirm the contract by the duress of the latter, and that thereafter he continued in his service by the force of such duress and not by reason of the relations of master and servant produced by the articles of apprenticeship.
    Upon the trial of the action the plaintiff was examined in his own behalf and was permitted, against the objection and exception of the defendants, to testify to a conversation he had with the defendant Epes, in the absence of the other executor, in which Epes admitted that the plaintiff’s demand was just.

      Held, that the evidence was incompetent and should have been rejected.
    That it is a well-settled rule of evidence in this State that the declaration of one executor cannot be received in evidence against his co-executor for the purpose of establishing the original demand upon which the action is founded.
    After the plaintiff had testified upon the trial that he and the defendant Epes were together at a time and place mentioned and had a conversation, he was asked by the plaintiff: “ What was said about this case? ” To which question the defendant . objected upon the ground that the estate could not be charged by anything said by the executor at that time.

      Held, that a claim, made by the plaintiff that the objection made by the defendant to the reception of the evidence did not state as a ground thereof the objection, that the declaration of one executor cannot be received in evidence against his co-executor, relied upon on the appeal, could not be maintained.
    That, as it was manifest that the plaintiff intended to make an answer to the question, if permitted to do so, which would bring out the admission of the defendant Epes, as ho did, the objection clearly indicated the true ground of objection.
    Appeal from an order of the Monroe county Special Term, entered in the clerk’s office of that county on June 2,1887, granting the defendant’s motion for a new trial founded on the minutes of the justice before whom the action was tried, after a verdict in the plaintiff’s favor. The action was for work and labor performed by the plaintiff for the defendants’ testator.

      James G. Garlock, for the appellant.

      W. S. Hubbell, for the respondents.
   Barker, P. J.:

The nature of the action, the circumstances of the case, and the facts which the plaintiff must maintain to support tlie verdict in his favor, are clearly stated in the opinion of Justice Bradley when this case was before us on a former appeal, reported in 39 Hun, 72. The defense was based on the alleged fact that the labor and services performed by the plaintiff were rendered by him for the decedent under and in pursuance of the terms of certain articles of apprenticeship entered into between the plaintiff and the defendant’s testator. It is admitted by the plaintiff that he did commence living in the family of the testator under that agreement, and no other agreement was ever made between the parties relative to the plaintiff’s service. The plaintiff contends that, while living with the deceased, he became discontented and dissatisfied, and determined in his own mind to disaffirm the contract, and leave the family of the testator; and had communicated to Mr. Greene his purpose to do so, and that he was denied the exercise of the right to dis-affirm the contract by the duress of the latter; and that thereafter he continued in his service by the force of such duress, and not by reason of the relations of master and servant produced by the articles of apprenticeship. The plaintiff gave some evidence in support of his position. We held, in disposing of the former appeal, that the agreement was not void, but was voidable at the election of the plaintiff; and if he was deterred, as matter of fact, from making the election to disaffirm the contract, by threats and the fear of unlawful imprisonment, he might recover the value of his services rendered after the making of such threats by the testator.

On the trial the plaintiff, as a witness in his own behalf, was permitted to testify to a conversation he had with the defendant Epes, in the absence of the other executor, in which Epes admitted that the plaintiff’s demand was just. This evidence was incompetent, and should have been rejected on the defendant’s objection. The admission must have strengthened the plaintiff’s case very much in the mind of the jury. . The admission was as broad as the plaintiff’s demand, and was, in effect, a confession' by one of the testator’s personal representatives, who is a defendant, that the demand sued upon was legal and equitable, and that the plaintiff ought to recover a judgment in the action. It is a well settled rule of evidence in this State that the declaration of one executor cannot be received in evidence against his co-executor for the purpose of establishing the original demand upon which the action is founded. (1 Greenl. Ev., § 176 ; Church v. Howard, 79 N. Y., 415 ; Hammon v. Huntley, 4 Cow., 498 ; Cayuga County Bank v. Bennett, 5 Hill, 236; Lane v. Doty, 4 Barb., 530; Finnern v. Hinz, 38 Hun, 465.)

The general rule is, in order to make the admissions of a party binding on others, it must appear that their interests are joint and that a mere community of interest is not sufficient to make them receivable in evidence, although they are all parties on the same side in the suit. In this case the issues were formed by the answer of the testator, as the action was commenced in his lifetime, and his executors, who had been substituted as defendants, do not have a joint interest in the subject-matter of the litigation. Either of the defendants could separately defend the plaintiff’s claim, and neither could have confessed a judgment for the demand in suit and bind the estate of the testator. The plaintiff insists that the objection made by the defendants to the reception of the evidence did not state as a ground of objection the one now relied upon, and for that reason the exception should be disregarded. The substance of the plaintiff’s evidence is this, that he and Mr. Epes were together at a time and place mentioned and held a conversation. The question was then asked the plaintiff: What was said about this case ? The objection interposed was, that the estate could not be charged by anything said by the executor at that time. It is manifest that the plaintiff intended to make an answer to the question, if permitted to do so, which would .bring out the admission of the defendant Epes, as he did; and it was equally manifest that the defendant comprehended, when the question was propounded, that it was asked for that purpose, and we think the objection clearly indicated the true ground of objection, and the one now relied upon. Th'e only facts stated by the witness in liis answer, which were pertinent to the matter in dispute, was the admission of the defendant Epes that the plaintiff’s demand was a just one. The admission was a separate and distinct fact, bearing on the issue being tried, disconnected with all the other facts and circumstances of the case, and the defendants could not have shown anything to- avoid the force of the objection and make the evidence competent; and, therefore, a general objection to the reception of the evidence was sufficient. In the order setting aside the verdict and granting a new trial it is stated that the motion was founded upon exceptions and because the verdict was contrary to the evidence. The learned trial judge ordered a new trial on the ground that the verdict was against the weight of evidence and did not consider the exceptions. We have read the evidence with attention, and are of the opinion that a case was made for the consideration of the jury, and, as there must be a new trial, we do not pass upon the question whether the verdict is against the weight of evidence, as, upon another trial, the plaintiff may be able to. strengthen his case and the defendant’s evidence may be less decisive in its character than it was upon the trial now under review.

Order affirmed, with costs to the respondents to abide the event.

All concur.

Order affirmed, with costs of this appeal to the respondents to abide the event.


text:
    RUFUS GOULD, Appellant, v. HARRIET A. GOULD, Respondent.

      Conveyance oflamd, purchased by a husband, from, a third person, to his wife—no trust results in his favor — 1 JR. £>., sec. 53, p. 728.
    In an action, brought by the plaintiff to compel the defendant, his wife, to convey to him the title to certain premises which had been conveyed to her by a third party, the consideration money having been paid in advance by the plaintiff, it was stated in the complaint that the premises were conveyed to the defendant, with the consent of the plaintiff; and that at that time and subsequently his wife made an oral promise to convey the premises to him whenever he should request it.

      Held, that the deed vested in the wife the fee simple to the land, although her husband paid the grantor the consideration money, and that no resulting trust arose out of the transaction in his favor.
    That, as it was not asserted by the plaintiff that his wife violated any trust in procuring the deed, or in any manner deceived or defrauded him in the transaction, no case was made within the exception of section 53 of 1 Revised Statutes, page 728.
    That the promise of the wife to reconvey the premises to her husband was not binding on her either at law or in equity, and that any attempt to enforce the promise by judicial decree would be in defiance of the provisions of the statute of frauds.
    Appeal from a judgment, entered on the decision of the Monroe Special Term, in the office of the clerk of that county on the 14th day of December, 1886, dismissing the plaintiff’s complaint upon the merits.
    The respondent is the wife of the appellant and their marriage took place prior to the transactions involved in this action. The object of the suit is to compel the respondent to convey to the appellant the title to certain premises conveyed to her by a third party, the consideration money being paid in advance by the appellant. It is stated in the complaint that the premises were conveyed to the defendant, with the consent of the plaintiff, who bases his demand for relief upon the fact asserted by him that at that time, and subsequently, his wife made an oral promise to convey the premises to him whenever he should request it. All the evidence' as to what the transaction in fact was, and the circumstances connected with it, is in the plaintiff’s own evidence, who testified, substantially, that at the time the deed was made out and delivered he had a talk with his wife, and the language which he used in giving his testimony is as follows^ viz.: “ I had a little talle before I went up to get the papers made out, in regard to the title ; I said I could have it made out in her name, and, of course, she would convey it to me at any time; she was present; * "x" "x" paid the other forty dollars the day the papers were made out; it was my money. "x' * * Q. What was said by your wife on the subject of conveying the property to you afterwards ? A. She agreed at different times to deed it to me. Q. What was said at the time the deed was made to her ? A. I don’t think there was a word mentioned to anybody in any shape or any manner in the squire’s office at the. time the deed was made to her; we had a talk before we started to go over there. Q. What talk did you have with your wife before the deed was made about having the property deeded back to you some time ? A. I said you can have the papers drawn to you and you will make it to me any time ; she was satisfied; she said yes; all right.”
    The full consideration for the premises was $500. After the conveyance was made to the defendant they were leased and managed by the plaintiff, and he testified that he improved the property by erecting buildings thereon, at the cost of $2,000. In 1881 the parties separated and have not lived together since. Upon this evidence the plaintiff rested, and on the defendant’s motion the plaintiff’s complaint was dismissed, with costs.

      William E. Edmonds, for the appellant.

      Raines Brothers, for the respondent.
   Barker, P. J.:

The plaintiff admits in his complaint, as he also states in his evidence, that the premises were deeded to his wife with his consent. This vested in her the fee simple to the land, although her husband paid .the grantor the consideration money. Ho resulting trust arises out of the transaction in his favor. The rule of the common law has been abrogated by our statute relative to uses and trusts, which declares: “Where a grant for a valuable consideration shall be made to one person, and the consideration thereof shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as alienee in such conveyance.” (1 R. S., § 51, m. p. 728.) It is not asserted by the plaintiff that his wife violated any trust in procuring the deed, or in any manner deceived or defrauded him in the transaction so as to make a case within the fexception to the provisions of the said section as provided in section 53. (Garfield v. Hatmaker, 15 N. Y., 475 ; Everett v. Everett, 48 id., 218; Norton v. Stone, 8 Paige, 222.) The plaintiff voluntarily made improvements on the land without exacting any promise from his wife that she would reimburse him for the outlay which he made. As between themselves the legal rights of the wife are precisely the same as if her husband had owned the premises when the improvements to the property were made, and he had afterward voluntarily caused the title to be conveyed to her as a gratuity for her support and maintenance. The promise of the wife to reconvey the premises to her husband is not binding on her, either in law or in equity; any attempt to enforce the promise by judicial decree would be in defiance of the provisions of the statute of frauds. Judgment affirmed, with costs.

Bradley and Dwight, JJ., concurred; Haight. J., not sitting.

Judgment affirmed, with costs.


text:
    BENJAMIN GRISWOLD, Appellant, v. ERASTUS D. WARNER, as Administrator, etc., of RODNEY B. SCOTT and CHESTER SCOTT, Respondents.

      Will—when a devise of real estate will be held, to vest a fee simple in the devisee — when a, bequest of the personal property of the testator to'his wife will give her the unqualified power to use and dispose of it, so as to render a gift of what may remain undisposed of at her death, to another legatee, void.

    Manley Griswold, by Ms last will and testament, after providing for the payment of all his lawful debts, gave and bequeathed to his wife, Laura Griswold, “ all the real estate of which I may die seized or possessed in the village of Forest-ville, with full power to sell and convey the same as she may see fit, and to give a deed of conveyance thereof.”

      Held, that the words of the grant wore sufficient to convey a title in fee to the devisee of the lands.
    A gift of land by will, with an absolute power to sell and convey the same by the devisee, without any subsequent provision or words to qualify the power to sell, is a gift in fee simple.
    The will also contained the following provision: “I also give and bequeath to my said wife the full and absolute use and control of all my personal estate, to be held, used and enjoyed by her as she sees fit, to use in repairs for her separate estate, to pay hired labor as well as to repair our cemetery lot, erecting a family monument thereon, and for any and all purposes she sees fit to use the same for; and I hereby direct that she shall lay out the sum of $150 on the lot in the old cemetery in which my father and mother are buried, in erecting a monument on said lot for my father and mother aforesaid. Whatever property shall be left at the death of my said wife I give and bequeath the same to my nephew, Benjamin Griswold, should he be living at the death of my said wife. If he is not living, then the same to he divided equally among my wife’s heirs-at-law.”

      Held, that Mrs. Griswold took an absolute and unqualified title to the real and personal property of the testator after applying so much of the personal property as was necessary to carry out the special provisions of the will relative to the erection of monuments on the cemetery lots.
    That this comprehensive language gave the legatee the unqualified power to use and dispose of the same in her lifetime, or to bequeath the same by will; and if she did neither, then the same would, by operation of law, go to her next of kin unless by other words or provisions of the will the legal effect of these words was changed or limited.
    Upon the death of the wife a portion of the personal property received by her remained in her possession undisposed of.

      Held, that the provision of the will giving such remainder to the nephew of the testator was repugnant to the gift of the same property to his widow, and for that reason was inoperative and void.

      Campbell v. Beaumont (91 N. Y., 464) followed; Terry v. Wiggins (47 id., 512); Flanagan v. Flanagan (8 Abb. N. C., 418); Tyson v. Blake (22 N. Y., 558) distinguished.
    Appeal from a judgment, entered upon the report of a referee, in the office of the clerk of Chautauqua county on January 27, 1888, dismissing the plaintiff’s complaint.
    The rights of all the parties, as disclosed upon the trial, were based upon the will of Manley Griswold, who died on the 14th day of January, 1870. The will bears date the 19tli day of November, 1869, and the devising clauses of the will are as follows:
    “ After all my lawful debts are paid and discharged, I give and bequeath to my wife, Laura Griswold, all the real estate of which I may die seized or possessed, in the village of Eorestville, with full power to sell and convey the same as she may see fit, and to give a deed of conveyance thereof.”
    “ I also give and bequeath to my said wife the full and absolute use and control of all my personal estate, to be held, used and enjoyed by her as she sees fit, to use in repairs for her separate estate, to pay hired help as well as to repair our cemetery lot, erecting a family monument thereon, and for any and all purposes she sees fit to use the same for. And I hereby direct that she shall lay out the sum of one hundred and fifty dollars on the lot in the old cemetery, in which my father and.mother are buried, in erecting a monument on said lot for my father and mother aforesaid, and she may expend more if she sees fit. Whatever property shall be left at the death of my said wife, I give and bequeath the same to my nepliew, Benjamin Griswold, should he be living at the death of my said wife ; if he is not living, then the same to be divided equally among my wife’s heirs-at-law. Likewise, I make, constitute and appoint my said wife, Laura Griswold, to be the executrix of this, my last will and testament, hereby revoking all former wills made by me.”
    At the time of his death the testator owned a parcel of land in the village of Forestville, and his personal estate was of the value of about $12,000. His wife survived him and he left no children. Benjamin Griswold, the legatee named in the will, was his nephew and is the plaintiff in this action. Fie claims that the wife of the testator took a life estate only in so much of the personal property as should remain after devoting so much thereof ás was necessary for the uses and purposes specifically mentioned in the will.
    The action was commenced in the lifetime of Mrs. Griswold, and she was made defendant, and the complaint charges that she had, in fact, given and conveyed to the other defendants a large portion of the personal property, and threatened, during her lifetime, to sell and dispose of the balance for the purpose of defeating the intention of the testator, which was, as the plaintiff alleges, that the corpus of the personal property, after devoting a portion of the same to the uses mentioned in the will, should be his property and estate. All of the original defendants answered the complaint, and all claim that the widow of the testator took an absolute title to the personal property, and that she had a right to sell and dispose of the same. She admitted in her answer, that at the time of the commencement of the action, she was in the possession of and had control of a large portion of the personal property bequeathed to her. It was also admitted by the other defendants that they had received from Mrs. Griswold a portion of the personal property, but they claimed it was in payment for services rendered to her at her request.
    It was admitted that the testatrix had, before the commencement of this action, improved the cemetery lot and erected the monuments as directed in the will. The plaintiff demanded judgment, that a receiver be appointed of the property, and that an injunction issue restraining the defendants from alienating, transferring, or giving away the property; and that the defendants Rodney B. and Chester Scott be required to hand over to the receiver so much of the property, and the avails thereof, as they have received. Mrs. Griswold, the widow, died after the commencement of the action, and before the trial, leaving a last will and testament; and the defendant Warner has’ been appointed the administrator of her estate, with the will annexed; and upon his own application was substituted as defendant. On the trial the counsel for the plaintiff proposed to prove, as facts, the allegation set forth in the complaint before stated; and, thereupon, the defendants’ counsel moved that the complaint be dismissed, claiming that under the will the widow took an absolute title to the real and personal property, and the referee sustained the motion and dismissed the complaint.

      J. G. Record, for the appellant.

      Holt & Holt, for Warner and Chester Scott, respondents.

      S. P. Fox, for R. B. Scott, respondent.
   Barker, P. J.:

We think the defendants’ contention is supported by the current of authorities, and clearly so by the decisions of the courts of this State. The construction which has been given in similar provisions in other wills requires us to liold that Mrs. Griswold took an absolute and unqualified title to the real and personal property of the testator after applying so much of -the j>ersonal property as was necessary to carry out the special provisions of the will relative to the erection of monuments on the cemetery lots. The words of the grant are sufficient to convey a title in fee to the devisee of the lands, as those words would have vested a fee simple in the donee without the aid of the statute, which declares that every grant or devise of real estate, or any interest therein, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms or necessary implication. (1 R. S., 748, § 1.) A gift of land by will with an absolute power to sell and convey the same by the devisee without any subsequent provision or words to qualify the power to sell is a gift in fee simple. The case is brought within the rule of the statute making all devises with absolute power of disposal in the devisee gifts in fee. In considering the other question presented, whether the legatee took more than a life estate in the personal property, we find nothing in the provisions of the will which controls or limits the right of the legatee to use the same as her own absolute property, except the provision which requires her to use so much thereof as might be necessary to carry into effect the provisions for erecting monuments on the cemetery lots.

The other special provisions mentioned in the will, by ydiich the legatee was at liberty to apply the property, were for her own per" sonal benefit in repairing her separate estate, and in paying the wages of persons in her employ. If we eliminate from the clauses of the will relative to the bequests of the personal property the words used by the testator in giving directions for the special uses to which a portion of the personal property was directed to be applied, the language of the gift would read as follows: “ I give and bequeath to my wife the full and absolute use and control of all my personal estate, to be held, used and enjoyed by her for any and all purposes which she sees fit to use the same.” This comprehensive language vested in the legatee an absolute title and gave her the unqualified power to use and dispose of the same in her lifetime, or to bequeath the same by will, and, if she did neither, then the same would, by operation of law, go to her next of kin, unless, by other words or provisions of the will, the legal effect of. these words is changed or limited. The only provision indicating any intention on the part of the testator to endow his wife with less than an absolute estate in his personal property is the gift over to his nephew, which follows the bequest to his wife, and expressed in these words: “ Whatever property shall be left at the death of my said wife I give and bequeath the same to my nephew, Benjamin Griswold, should he be living at the death of my said wife.”

It is doubtless true, as the plaintiff’s counsel has argued, that the unprofessional mind accustomed to giving, written or spoken language, its ordinary meaning and significance, would understand, on reading the entire will, that it was the intention of the testator that if any of the property remained undisposed of at the death of his wife the same was to go to his nephew, the plaintiff. All agree that a provision that would carry into effect such an intention would be lawful, for it is well established that a remainder may be limited upon a bequest of personal property, including a bequest of money. (Smith v. Van Ostrand, 64 N. Y., 278.) As has been already stated that by the rule adopted in this State for the construction of wills, it must be held that the testator did not effectually limit the estate of his wife in the personal property to a life estate therein by the gift over to his nephew.

In Clarke v. Leupp (88 N. Y., 228), the rule was formulated as follows: “ That when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit absolutely to the donee, it will not be restricted or cut down to any less estate by subsequent and ambiguous words, inferential in their intent.” The testator, in making the bequest to his nephew, instead of attempting to limit the power conferred on his wife, to use and dispose of the property as absolute owner, recognized that she had such unqualified right, and, in terms, confines the gift to his nephew to so much of the property as might be left undisposed of at her death. The gift of the remainder of the personal property to the last named legatee is clearly and distinctly expressed and the exact intention of the testator not left in doubt:

The situation of the personal property on the death of the wife of the testator turns out to be as he anticipated it might be on the happening of that event, a portion of the same remaining not disposed of in her lifetime; but the provisions of the will giving such remainder to the nephew of the testator is, as the cases hold, repugnant to the gift of the same property to- his widow; and for that reason is inoperative and void. The rule, as collected from the cases decided previous to the case of Campbell v. Beaumont (91 N. Y., 464), is stated in the opinion in that case; and the judge, after citing several of the leading authorities on the subject, said: In all these cases it was, in substance, held that when the property is expressly or by necessary implication to be spent by the primary legatee at his pleasure, a further limitation is clearly hostile to the nature and intention of the gift.” The provisions of the will are such as to make a case falling within the rule as stated by the court in that case; and as the plaintiff’s claim of title is based on a void bequest, the complaint was properly dismissed by the referee. This result is entirely consistent with the cases cited by the learned counsel for the plaintiff. In Terry v. Wiggins (47 N. Y., 512) it was held that a gift to the primary devisee in the will then under consideration was for her lifetime only, with a right vested in her to sell and dispose of any part of the property during her life for her use and maintenance; and that she had no absolute right of disposition, and for that reason the power of sale was limited to her lifetime; and so much of the real estate as remained unsold at the time of her death did not descend to her heirs-at-laws, but vested in the ultimate devisee named in the will. In that case the provision of the will under consideration was as follows: “ I hereby bequeath to my wife, Hannah Youngs, all real and personal estate and effects that I may die possessed of, for her own personal use and maintenance, with full power to sell or otherwise dispose of the same, in part or in whole, if she should require it or deem it expedient so. to do; and after her decease the residue that may be of the personal and real estate ” was given to a devisee and legatee named. The real point decided in that case was that the conditional power of disposition given the primary legatee did not operate to enlarge the estate into a fee.

In Flanagan v. Flanagan (8 Abb. N. C., 413), the gift of real and personal property was as follows, to wit: “ 15th. One-third of all the rest and remainder of my estate to my beloved wife Jane, in lieu of dower, to be hers absolutely, and the use of all the remainder during her life, and the portion left of such remainder to be distributed to the poor of St. Peter’s Church.” And it was held that the gift to the widow gave her the right to dispose of the property devised in any mode she saw fit during her lifetime, but not by will, and, therefore, did not render the gift over repugnant and void, citing the case of Terry v. Wiggins (supra), as authority in support of the construction placed upon the will. The case of Tyson v. Blake (22 N. Y., 558), does not support the plaintiff’s argument in any respect. In that case the testator directed his estate to be converted into money, which he bequeathed generally to his four grandchildren; but in case one of them, whom he named, should die without lawful issue, then her share was to be divided among the survivors, share and share alike, to them, their heirs and assigns. It was held there was no repugnancy between the general bequest to the granddaughter and a provision for its diversion in the event of her death without issue ; that, as to her, it was an absolute gift, to be defeated in the case of the happening of the contingency mentioned, and was, in effect, an executory bequest of personal property, which the law permits. And it was there affirmed by one of the judges that, if there were any words -in the will importing that the primary legatee might consume or spend the full sum bequeathed to her, then the attempt to give the same fund to another would be repugnant to the prior disposition. As we have reached the conclusion that the referee properly dismissed the complaint upon the merits, it is unnecessary to consider the objections made by the defendants that the plaintiff attempted to make out a case for relief, which did not exist at the time of the commencement of the action, and is based on facts which occurred after the commencement of the action.

Judgment affirmed, with costs of this appeal to the respondent to be paid out of the estate.

Bradley and Dwight, JJ., concurred; Haight, J., not sitting;

Judgment affirmed, with costs of this appeal to the respondent to be paid out of the estate.