text:
    GEORGE C. MURPHY, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Negligence — railroad corporation — owes no duty to one who exposes himself to a danger not necessary to his employment.

    An employee of a firm of coal dealers, engaged in hauling coal from open cars in the yard of a railroad corporation, was told by one of the firm of coal dealers to see how much coal was left in the car and bring him word. Upon returning to the yard he climbed upon the platform of the car, and while he was attempting to pass around the brake, other cars wore moved upon the same track which came in contact with the car in question and his foot was crushed.
    The railroad company had no notice that the driver was in this exposed position when the cars were moved.

      Meld, that as the adventure of the employee, in climbing upon the end of the car, was no part of the business of unloading coal, and as there was no evidence of the omission of the ordinary signals used in moving cars, the railroad company owed him no duty and he could not recover.
    Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from an order, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 3d day of September, 1891, denying a motion of the defendant for a new trial, and from a judgment, entered in said clerk’s office on the same day upon a verdict in favor of the plaintiff for $850, after a trial at the Niagara Circuit before the court and a jury.

      E. G. Sprague, for tlie appellant.

      W. W: Storrs, for the respondent.
   Dwight, P. J.:

The action is to recover damages for a bodily injury sustained by the plaintiff by reason of alleged negligence of the defendant. The plaintiff was in the employ of a firm of coal dealers in Lockport as a driver, and at the time of the accident was engaged in hauling coal from the yard of the defendant. The coal was shoveled into his wagons, from a car standing on the track, by another laborer employed by the coal dealers On one of his return trips to the railroad yard the plaintiff was directed by one of his employers to see how much coal was left in the car and bring him word. Having reached the yard and changed his horse from the empty wagon to the loaded one, he went to the end of the car and climbed up onto the projecting timbers, or what he calls the platform of the car, and was attempting to pass around the brake which stood at the corner where he got up, when other cars, being moved on the same track, came in contact with the car on which he stood and his foot was caught between the bumpers and the injury was received of which he complains. The car from which the coal was being unloaded was a “ Gondola,” or open car, with its floor about four feet from the track and its sides about three feet and a half above the floor. The only witnesses sworn in the case were the plaintiff and one of his employers, and the latter testified only to the plaintiff’s employment and his character as a workman. At the close of this testimony counsel for the defendant moved for a nonsuit on the ground : (1.) That it is not shown that the accident occurred by reason of any violation by the defendant of any duty which it owed to the plaintiff. (2.) That when the plaintiff stepped upon the platform he did so at his own risk. (3.) That the plaintiff had failed to show that the defendant had been guilty of any negligence for which it was responsible in this action, (I.) That he had failed to show that he was free from negligence contributing to the accident. The •motion for a nonsuit was denied and the defendant excepted.

We think the exception was well taken upon all or upon either of the grounds stated for the motion. It was not shown that the defendant, or any of its servants engaged in the management and movement of its cars, had any notice or reason to suppose that the plaintiff was or was likely to be on the outside of the car or in a position to be injured by the contact of other cars with the one being unloaded. They were, no doubt, chargeable with notice that a man was engaged in shoveling coal from the car, and they were bound to use reasonable care not to move their cars in such a. way as to endanger his safety ; and so it seems they did. The man in the car is not shown to have been in any way disturbed or inconvenienced. The adventure of the plaintiff in climbing up on the end of the car was no part of the operation of unloading the coal, and the information which he sought to obtain for his employer might, it would seem, have been as readily obtained by inspection from either his empty or his loaded wagon, both of which were placed close to the side of the car, as from the precarious footing on the end of the car itself. It may be conceded that he was guilty of no wrong or trespass in climbing up on the car, but even then, in the absence of notice to the defendant that he had or was likely to have done so, he did it at his own risk of the dangers incident to such an undertaking. Under those circumstances, it is impossible to see that the defendant owed to the plaintiff the duty of even ordinary care in the movement of their cars; hut if such were required there is nothing to show that it was omitted1 on the occasion of this accident. There is no evidence tending to show that the moving cars were brought to their position in any other than the most careful and usual manner. The jar of the contact was not shown to have been violent; as has been said, it did not disturb the man who was at work on the car; nor did it have the effect to dislodge the plaintiff from his position, but only to induce an effort on his part to obtain a better footing. It was in the attempt to do so that he stepped upon the bumpers of the two cars when in contact, and when, as he testifies, they were momentarily separated, his heel slipped between them and was caught when they came together a second time.

Indeed, it is not really contended that the defendant was guilty of any negligence, except in the failure to give notice to the plaintiff of the approach of the moving cars. But there is no evidence of the omission of any of the ordinary signals of the moving of trains or of cars in the yard, and it would be unreasonable to require an individual warning to a person whose presence in a position of danger the defendant had no reason to anticipate. So that the whole question of the defendant’s negligence resolves itself, as we think, into the inquiry already discussed, whether the defendant was bound to take notice that the plaintiff, or some other person, had the right to be, and was likely to be in the position of danger described.

¥e are much inclined to the opinion that the plaintiff’s testimony fails to exculpate him from the charge of contributory negligence; but it is possible that that question might properly have been submitted to the jury if a case had been made in other respects. ¥e prefer to place our judgment upon the ground that a case was not made in which the jury was justified in finding that the injury complained of was caused by the neglect of the defendant to perform any duty which it owed to the plaintiff.

The cases cited in the opinion at Special Term differ, as we think, materially from that at bar in the facts upon which the application of the doctrine stated depends. In Barton v. New York Central and Hudson River Railroad Company (1 T. & C., 291; affirmed, 56 N. Y., 660) the plaintiff was employed by the shipper in the work of transferring grain from the car of the defendant to a boat lying alongside the track; and the situation in which he was struck and injured by the car was one which was made necessary by the particular work in which he was engaged. In Newson v. New York Central Railroad Company (29 N. Y., 383) the plaintiff was employed to unload gravel from the car onto a wagon, and also to drive the wagon to the place where the gravel was used; and the accident was attributable not to any collision with the car, but to a negligent management of another train of the defendant close by, which frightened his horses and he was thrown from his load. In Stinson v. The Same (32 N. Y., 333), the plaintiff’s intestate was himself the shipper of goods, and at the moment of the accident was helping to lift a carriage from the freight-house into the car close alongside, when the car was negligently moved in such manner as to crush him between it and the side of the building; but the question upon which that case turned was of the effect of a contract signed by the shipper which, it was claimed, devolved the risk of all such accidents upon himself. In all these cases the injuries were received when the persons injured were in situations required by the exigencies of tlieir employment, of which the defendant was chargeable with notice. The same is true of the case of Ominger v. The Same (6 T. & C., 498), which is cited in addition to the foregoing by counsel for the respondent. ¥e find a distinction in principle between all these cases and the case at bar.

Upon the grounds hereinbefore stated we think the motion for a nonsuit should have been granted, and that for the error involved in its denial the judgment and order appealed from should be reversed.

Macombeb and Lewis, JJ., concurred.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    JOHN L. DINTRUFF, Respondent, v. CLARENCE C. TUTHILL, as Surviving Partner of HENRY TUTHILL & SON and Others, Appellants.

      Attachment — the warrant must not recite the grounds thereof in the alternative — a.debtor may prefer a creditor— Oode of Oivil Procedure, sec. 641.
    The ground of an attachment was stated in the warrant to be “that the defendant has removed, or is about to remove, property of the said firm (of which he was a member) from the State with intent to defraud the creditors of the said firm, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, the property of said firm with like intent.”
    Upon a motion to vacate the attachment,

      Held, that such statements in the alternative were insufficient, and were not a compliance with section 641 of the Oode of Oivil Procedure, enacting that the warrant “ must briefly recite the ground of the attachment.”
    The affidavit upon which the attachment was granted stated, in substance, that the defendant had applied the firm property, consisting of certain barley, to pay particular creditors, the effect of which was to prefer their claims. There was no allegation that these claims were not just debts, although there was a statement that the transfer was made at less than the fair market-value of the property, but nothing was stated as to what the true price or value was.

      Held, that the allegations of the affidavit wefe insufficient to confer jurisdiction to issue the attachment.
    That the substance of them was that certain creditors had been preferred; that such a preference, except as that matter was limited by statute in the case of general assignments, was legal and could not be attached.

      Appeal by the defendant Clarence O. Tnthill, as sole surviving partner of the firm of Henry Tuthill & Son, and by Mathias H. Arnot, Marianna T. Ogden and Fanny A. Haven, not parties to the action, from an order of the Yates county judge, entered in the office of the clerk of Yates county on the 9th day of February, 1891, denying- a motion to vacate an attachment theretofore granted in the above-entitled action.
    By the affidavit of Mathias H. Arnot it appeared that Mathias H. Arnot, Marianna T. Ogden and Fanny A. Haven, partners under the firm name of the Chemung Canal Bank, acquired an interest in the property in question subsequent to the time (December 30,1890) when the attachment was levied. They claimed under Emmett C. Dwelle who had sold to them the barley transferred to him by Clarence C. Tuthill, survivor, on December 27, 1890.
    As persons having such an interest they obtained an order that the plaintiff should show cause why the attachment should not be vacated. The defendant Tuthill procured a similar order. Upon the return of those orders, the order appealed from was made.

      F. CoVm, for the appellants.

      J. F. Parhhurst, for the respondent.
   Dwight, P. J.:

The application was founded on the papers on which the warrant was granted, and an affidavit of the third persons named, showing their interest in the property attached, acquired subsequently to the levy of the attachment. The first-mentioned papers consisted of a verified complaint in the action, which was on a promissory note made to the plaintiff by the firm of Henry'Tuthill & Son, of which the defendant was the sole surviving partner, and an affidavit of the plaintiff which, after setting out his cause of action, continued as follows:

“ That the said defendant, Clarence C. Tuthill, as sole surviving partner of the firm of Henry Tuthill & Son, has removed, or is about to remove, the property of the said firm from the State with intent to defraud the creditors of said firm, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete the property of the said firm with intent to defraud the creditors of said firm. That the sources of deponent’s knowledge are conversations had with the said defendant, Clarence C. Tuthill, in which the said Clarence O. Tuthill told defendant that his firm was hopelessly and irretrievably insolvent, and had been for some time past, and that they had no idea of continuing the business. That the property of said copartnership consisted simply of about ten thousand dollars worth of barley and malt, and a team of horses worth about one thousand dollars, while the indebtedness of the said firm was some sixty-five thousand dollars. That on the 27th day of December, 1890, the said defendant, Clarence C. Tuthill, as aforesaid, had in contemplation the making of an assignment of the property of said firm, but that there was some question as to his being legally able to make such an assignment; that he had sold a certain quantity of. malt and barley to one Emmett C. Dwelle in payment and satisfaction of a past due indebtedness of said firm, and that he had sold the balance of said malt and barley to one John T. Andrews 2d, in order to secure Augustus ~W. Franklin, his uncle, and a partner of said Andrews, for his liability by reason of indorsements for the firm of Henry Tuthill & Son. That such sale was made at less than the fair market-value of said property, without the payment of any bona fide consideration, and that such sales and transfers were made for the sole and only purpose of preferring the said Emmett C. Dwelle and Augustus W. Franklin, and in order that the other creditors of Henry Tuthill & Son should be prevented from collecting their debts and demands and left remediless.”

The warrant of attachment contained, by way of recital, a statement that it appeared, by the affidavit of the plaintiff, “ that the defendant has removed, or is about to remove property of the said firm from the State with intent to defraud the creditors of the said firm, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete the property of said firm with like intent.” The warrant contains no other recital of the ground upon which it was issued.

The warrant was clearly defective in the respect last mentioned. The requirement of the Code is positive that the warrant “ must briefly recite the ground of the attachment.” (Code of Civ. Pro., § 641.) This warrant recites several facts in the alternative, one or another of which is said to have appeared by the affidavit, but it .specifies no one or more of them as having so appeared, or as being the ground upon which the attachment was issued. The statement •clearly does not answer the requirement of the Code above cited. In Arnot v. Wright (56 Hun, 561), asimilar statement in an affidavit, following the language of the statute in the disjunctive, was held to be ineffective. The court said “ the statement in the affidavit was in the alternative, and hence alleged neither one fact nor the other.” (Citing Lee v. Heirberger, 1 Code Rep., 38; Collins v. Beebe, 27 N. Y. State Rep., 4.) For this irregularity, which'was particularly specified in their notice of motion, we suppose the moving parties, appellants here, were entitled to have the attachment vacated. (First Nat. Bank v. Bushwick Ch. Works, 25 N. Y. State Rep., 830.)

But there is a far more radical and meritorious ground for setting aside this attachment. It is found in the absence from the affidavit of facts necessary to give jurisdiction to the officer to issue the warrant. Of course, the mere allegation, in the language of the statute, of the conclusion of fact of which proof, to the satisfaction of the judge, is required to be made, is not, of itself, such proof; it is, at the best, mere allegation; and since in this affidavit it is made in the alternative, it does not amount even to an allegation of either •of the facts, one or more of which is required to be shown. Such .•an allegation in a complaint would be held bad on demurrer, and it has no tendency to establish either of the facts mentioned. ¥e are remitted, therefore, in the search for proof upon which the county judge might act judicially in determining the plaintiff’s application for an attachment, to the specific statements of the affidavit, made on the strength of alleged declarations of the defendant. And, jn respect to these, waiving all minor questions, as, for example, whether such evidence is not mere hearsay, and whether the declarations of an assignor of personal property are admissible to impeach the title of his assignee — it seems very clear that this evidence, even if held competent, fails to support, prima facie, either of the conclusions of fact previously alleged. The only effect claimed for it in that direction is that it tends to show that the defendant, as survivor, etc., had disposed of the greater part of the property of the firm with intent to defraud the creditors of the firm. But to give it such effect is to do violence to the plain import of the alleged declarations of the defendant. Those declarations import nothing more than that the defendant has turned out property of the firm to pay and secure a particular debt and a particular liability, and thereby to prefer those obligations to other obligations of the firm. The bonafides of those obligations is in no wise impeached. The statement that the sales of the property were “ without the payment of any bona fide consideration ” is, evidently, only another form of the previous statement that the property was turn ed out in payment of a precedent debt. No rule of law is more absolute than that, in the absence of statutory regulation of the distribution of the estate of insolvents, the debtor may employ his property in payment of such of his honest debts as he sees fit to prefer. The provisions of the act of 1887 (chap 503), apply only to general assignments for the benefit of creditors, and have never been extended beyond the case of transfers of property so connected with a general assignment as, manifestly, to constitute a part of the same scheme for the disposition of the estate of the insolvent. (Manning v. Beck, 54 Hun, 102; see, also, same case on appeal, 41 N. Y. St. Rep., 199.) The statement that such sale was made at less than the fair market-value of the property is a mere conclusion of fact of which no evidence is given ; it is not stated what was the market-value of the property, nor at what price it was applied in payment of the debts mentioned, nor whether the difference between such value and price was substantial or merely nominal. And the concluding allegation of this branch of the affidavit — whether it is to be regarded as a declaration of the defendant or a conclusion of the affiant — lends no substantiation to the charge of fraudulent intent on the part of the defendant. It is as follows: That such sales and transfers were made for the sole and only purpose of preferring the said Emmett C. Dwelle and Augustus W. Franklin, and in order that the other creditors of Henry Tuthill & Son should be prevented from collecting their debts and demands and left remediless.” As we have already observed, the purpose to prefer the creditors named was a lawful one, and its execution must necessarily have the effect to prevent the collection of the debts due to other creditors so far as property turned out to the former is concerned. There seems to be nothing in the facts disclosed by this affidavit to impugn the honestintent or the lawful effect of the transaction which is the subject of the narrative. Such being ■ the case, the learned county judge was without jurisdiction to issue the attachment, and the motion to vacate the same should have been granted.

The order appealed from should be reversed, and the motion granted.

Macombee and Lewis, JJ., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.


text:
    MORTIMER F. REYNOLDS, Respondent, v. ARTHUR W. LAWTON, Appellant, Impleaded with Another, Defendant.

      Statute of frauds — a promise to pay one’s own debt need not be in writing — a promise for the benefit of a third person — legal conclusion.

    A firm, composed of three persons, Ray, Austin and Bowdish, was indebted to one-Reynolds for rent, at the time when one Lawton bought out the interest of Ray and Austin with a view to continuing the business with Bowdish and, as a part of the consideration for such sale, orally agreed to pay the rent due.
    In an action brought by Reynolds -against Lawton, based upon this promise, to recover the amount of the indebtedness of the firm to him.

      freíd, that the promise by Lawton was one to pay his own debt to Ray and Austin by paying their debt to the plaintiff, and was, therefore, valid, though not in writing.
    That it was a promise made for the benefit of the plaintiff and could be enforced by him.
    The defendant was asked by his own counsel: “ Did you,, in any way, hold yourself out as a partner? ”

      freíd, that the question was properly excluded as calling for a conclusion'of law.
    Appeal by the defendant, Arthur W. Lawton, from a judgment of the County Court of Monroe county, entered in the office of the clerk of said county of Monroe on the 27th day of March, 1891, upon a verdict for the plaintiff for sixty-six dollars and thirty-two cents, after a trial before the court and a jury.
    The action was brought into the County Court by an appeal by the defendant, Arthur W. Lawton, from a judgment rendered by the Municipal Court of Rochester.

      Turk <& Bwrwum, for the appellant.

      G. J. Bissell, for the respondent.
   Dwight, P. J.:

The action was to recover for rent of apartments in the Reynolds Arcade, in Rochester. They had been occupied by a firm composed of three persons, Ray, Austin and Bowdish, doing business under the name of The Arcade Photograph Company. There is evidence to support the plaintiffs theory of the case, viz. : That this copartnership was indebted to the plaintiff for five months’ rent at fifteen dollars per month, when the defendant bought out the interest of the two partners, Ray and Austin, in the stock, fixtures and business of the firm, with the consent of Bowdish, and with the view of continuing the business in partnership with the latter; that in making such purchase, and as part of the consideration of it, he assumed and .agreed to pay the rent of the rooms then due to the plaintiff as above mentioned.

This evidence was not uncontradicted, but we are not at liberty to inquire, on this appeal, as to the relative weight of the evidence, for the reason that there was no motion for a new trial in the County Court. (Reilley v. The D. and H. Canal Co., 102 N. Y., 383; Boos v. World Mut. Life Ins. Co., 61 id., 236, 242.) We must, therefore, assume the facts stated to have been found by the jury on sufficient evidence.

Such being the facts, the case seems to be directly within the doctrine of Lawrence v. Fox (20 N. Y., 268), and to stand upon the best reason which has been given for sustaining an action by a party not privy to the contract, nor its consideration, upon which the action is brought. It is the case of a promise by the defendant to pay his own debt to Ray and Austin by paying their debt to the plaintiff. There has never been any question but that such a promise could be enforced by the person for whose benefit it was made. It was for a good consideration, viz., the transfer of the partnership ' interest of Ray and Austin; it was not within the statute of frauds because it was a promise by the defendant to pay his own debt in the particular manner specified; it was solely* ■and directly for the benefit of the plaintiff, and it could be enforced by him under the unquestioned doctrine of Lawrence v. Fox.

The cases, industriously collected by counsel for the appellant, in which it has been held that the contract was not within the doctrine here applied, were variously distinguishable from the case at bar, and are not within Lawrence v. Fox by reason of such distinctions.

The instructions as to the effect of defendant’s omission to call the other parties to the contract with him, was, we think, properly qualified.

The objection to the question put to the defendant by his own counsel, “ Did you, in any way, hold yourself out as a partner % ” was properly sustained on the ground, specified on this trial, that it called for a conclusion of law.

There was, we think, no error committed on the trial which vitiates the verdict.

The judgment must be affirmed.

Macomber and Lewis, JJ., concurred.

Judgment of County Court of Monroe appealed from affirmed, with costs.


text:
    REUBEN DOTY and Another, Appellants, v. ALEXANDER SMITH, Respondent.

      Sale of a chose in action — price over fifty dolla/rs — counter-claim for purchase-price — statute of frmds.

    In an action brought to recover for goods sold, the defendant set up a counterclaim, amounting to $400, the purchase-price of a chose in action, which arose as follows: In 1873 the defendant and one Barnes entered into an oral agreement, by the terms of which the defendant was to build a partition wall, and, in a certain contingency, Barnes was to pay one-half of the expense thereof. Barnes died in 1873. In 1883 the defendant orally agreed with the plaintiffs to sell, and did sell, to them this claim against the estate of Barnes for $400.
    No requirement of the statute of frauds (3 B. S., m. p. 186, § 3) was complied with upon the sale.

      Held, that as the price of the claim was over fifty dollars its sale was void.
    That the contract was not executed, but executory, for the defendant was, by the assertion of his counter-claim, seeking performance of it upon the part of the plaintiffs, the purchasers, by endeavoring to compel them to pay the price of the chose in action.

      Appeal by the plaintiffs, Beuben Doty and Joseph Doty, from a judgment of the Supreme Court, entered ,in the office of the clerk of the county of Allegany on the ,13th day of April, 1891, in favor of. the defendant for a recovery of $131.13 and costs, after a trial before a referee.
    The action was brought to recover for goods sold. A counterclaim was interposed, setting up a sale by the defendant to the plaintiffs of an amount due to the defendant under an agreement with one Barnes, ■which was made in 1872. Barnes died the same year. An oral agreement was made in 1882 between the defendant and plaintiffs by which the former agreed to sell the claim to the latter.

      William Spargur, for the appellants.

      F. B. QhxvreK for the respondent.
   Dwight, P. J.:

The case presents but a single exception, namely, to a ruling of the referee, by which he admitted evidence of an oral agreement between the parties. The agreement was one by which the defendant attempted to sell to the plaintiffs, at the agreed price of $400, a claim of the former against the estate of one Barnes, deceased, for something over five hundred dollars. The claim itself rested in an oral agreement of Barnes, in his lifetime, to pay to the defendant, in a certain contingency, one-half the expense incurred by the latter in building a party-wall between adjoining lots of Barnes and the defendant, and was made the basis of a counter-claim by the defendant in this action. The evidence was objected to by the plaintiffs on the ground that the attempted contract of sale was void by the statute of frauds. (2 B. S., 136, § 3.)

The subject of sale was a thing in action. The statute, so far as applicable to things in action, is as follows :

Sec. 3. Every contract for the sale of any * * * things in action for the price of $50, or more, shall be void, unless

1. A note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby ; or

“ 2. Unless the buyer shall accept and receive * * * the evidences, or some of them, of such things in action ; or

“ 3. Unless the buyer shall, at the time, pay some part of the purchase-money.”

It is conceded that no one of the requirements of the statute was complied with in this case. There was no note or memorandum of the contract; no acceptance or receipt of any evidence of the claim or thing in action, and the buyers have never paid any part of the purchase-money. The referee finds that the sale was executed on the part of the defendant, and that he parted with his title, and that the plaintiffs accepted the transfer of the claim so far as either of those objects could be accomplished by an oral agreement; but this does not advance the discussion in the least, because the question is whether either of those objects can be accomplished at all without compliance with one or another of the requirements of the statute of frauds.

As an original question, and upon the plain reading of the statute, there would seem to be no room for doubt that this contract was void, but counsel for the respondent cites many cases to the effect that a chose in action may be assigned by parol and that the statute applies only to executory and not to executed contracts. Both of these propositions are undoubtedly true, but not necessarily decisive of this case. By the plain reading of the statute, a parol contract for the sale of a thing in action — that is, a contract without note or memorandum in writing- — Is good, provided some evidence of the thing in action is delivered by the seller, or some part of the purchase-money is paid by the buyer; and in most, if not all of the cases referred to, as cited by the respondent, it was substantial compliance with one or both of the two last requirements of the statute which saved the parol contract from condemnation. This was well shown in the opinion of the court in the case of Truax v. Slater, which is given at length in the report of the case of Bowery National Bank v. Wilson (N. Y. Supp., 473). In that opinion Yan Brunt, P. J., reviews briefly a large number of cases thus cited, with the result above indicated. The judgment in Truax v. Slater was affirmed by the Court of Appeals (86 N. Y., 630), where Earl, J., says: It is not entirely clear how much must be done to make an effectual assignment of an account (citing many cases) but the better opinion seems to be that an account may be sold like any chattel, and that any agreement which will pass the title to a chattel will pass the title to an account; there must be a valid agreement of sale, based upon a sufficient consideration, and if the price be fifty dollars or over, the statute of frauds must be complied with.”

Counsel for the respondent also cites several cases in which expressions have been used to the effect that the statute of frauds applies only to executory and not to executed contracts. (Dodge v. Crandall., 30 N Y., 304; Brayton v. Sherman, 5 N.Y. Supp., 602; Brown v. Farmers' Loan and Trust Co., 117 N. Y., 273.) But these were cases in which the action was not, like the counterclaim in this case, by one of the parties to the alleged contract of sale or assignment, to enforce that contract against the other party thereto, but by a third party in repudiation of that contract, and to collect or recover the dioses in action assigned, or their proceeds.

In Brown v. Farmers' Loan, and Trust Company, the court, by Finch, J., says: “ It is insisted, however, that the sale cannot stand because the contract was void under the statute of frauds. But that statute affects only executory and not executed contracts. It is the rule of evidence where one party or the other is seeking performance or damages for non-performance. It has no office where the contract has been executed on both sides, has been fully carried out by the parties, and requires no aid from the law.” The defendant, by his counter-claim in this case, is seeking performance of the alleged contract of sale on the part of the purchaser by the payment of the purchase-price of the chose in action. To that end he requires the aid of the law, and for the purpose of such an action or counter-claim, as said by Judge Finch, the statute of frauds furnishes the rule of evidence.

"We conclude, therefore that the decisions of the courts have not had the effect, to the extent contended for on the part of the respondent, of abrogating the plain and positive provisions of the statute of frauds; but that those provisions still control in cases of this character, and that the learned referee was in error in admitting the evidence to which objection was made.

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

Macomber and Lewis, JJ., concurred.

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


author: Macomber, J.:

text:
    ELIZABETH WADD, Respondent, v. JAMES E. HAZLETON and Others, Executors of ALBERT HILL, Deceased, Appellants.

      Gift —no knowledge thereof on the part of, nor delivery to, the donee — voluntary trustee —privileged communications.

    Elizabeth Wadd had been, for many years a servant in the family of one Albert Hill, who had made provision for her in his will. In January, 1884, Albert Hill told one Bangs, who had been his attorney, that he intended to provide for Elizabeth Wadd, beyond the sums mentioned in his will, and in June, 1884, delivered to Charles J. Hid, one of his executors, a bond and mortgage, and told him to draw an assignment of it to Elizabeth Wadd, and at the same time said something about his intention to give it to her Charles J Hill drew the assignment and soon afterwards returned all the papers to Albert Hill, who, shortly before his death in August, 1884, returned to Hill the assignment, exe- . cuted, but not acknowledged, and told him to deposit it in a bank. No delivery thereof was made to Elizabeth Wadd during the lifetime of Albert Hill.

      Held, that these facts established a trust.
    That Charles J. Hill became a voluntary trustee of the bond and mortgage for Elizabeth Wadd, and that he was bound to deliver it to her.
    That the trust was not invalidated by the fact that it was unknown to her at its creation, nor by the fact that there was no delivery of the bond and mortgage or assignment to her in the lifetime of Albert Hill.
    That, although Bangs had formerly been attorney for Albert Hill, the statement of the latter to Bangs, made in a casual conversation, that he intended to make a provision for Elizabeth Wadd, beyond that in his will, was not a privileged communication within section 835 of the Code of Civil Procedure.
    Appeal by the defendants, James E. Hazleton, Charles J. Hill and Hiram W. Hascall, as executors of Albert Hill, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Genesee on the 2d day of June, 1890, upon the decision of a referee in favor of the plaintiff for $2,196.60 and costs, after a trial before a referee.

      E. A. Washbit/'n and George Bowen, for the appellants

      L. N. Bangs, for the respondent.
   Macomber, J.:

This action was brought to obtain a delivery to the plaintiff of a bond in the sum of $2,000, secured by a real estate mortgage upon lands in the county'of Erie. Pending the action, the defendants, with the assent of the plaintiff, and under an arrangement by which such acts should not prejudice the rights of either party, collected the amount of the bond and mortgage, and they now have in their hands the moneys arising therefrom, subject to the final judgment in this action; so that the judgment, which was rendered in pursuance of the decision of the referee, directed the payment by the defendants of the amount thereof, with interest, together with costs of the action, instead of directing an actual delivery of the securities themselves as was prayed for in the complaint.

On the 30th day of June, 1884, the defendants’ testator was the owner of this bond executed by one Charles Buckholt, and of the mortgage collateral thereto, to secure the payment of the sum of $2,000, bearing date the 7th day of May, 1881, payable six years thereafter, with interest. On the 30th day of June, 1884,the testator requested the defendant, Charles J. Hill, to draw an assignment of the bond and mortgage to the plaintiff. Mr. Hill took these securities to his home, and drew an assignment thereof, afterwards returning to the testator the papers with the assignment properly drawn and ready for execution. The testator died in Le Boy, Genesee county, on.the 29th day of August, 1884, at the age of eighty-seven years, possessed of real and personal property of the value of $65,000 over and above all debts and liabilities. He left no widow or descendant, his wife having died in the year 1870. His final disposition of his property was contained in a last will with four codicils added thereto. In the will, and in the first two codicils, Lucius N. Bangs, then an experienced counselor of long standing, practicing in the village of Le Boy, was named as one of the executors. On the removal of the latter, however, to the city of Buffalo, the testator, by the third codicil, substituted Mr. Hill in his place as one of the executors. Shortly before the death of the testator, and on the second day of his final illness, he gave to Mr. Hill the assignment of the bond and mortgage properly executed by him, but not acknowleged (and so, of course, not recorded), with directions to deposit it, with other papers, in his (the testator’s) bank. There is not any evidence that the ■ bond and mortgage, and the assignment thereof, were ever delivered personally to the plaintiff in the lifetime of the'testator. An attempt was made in the answer to claim that the testator was not of sound mind and memory at the time of the execution of the assignment, and that the same was obtained from him through undue influence and fraud. But the evidence-wholly fails to establish either of such defenses, as the learned referee has very properly held. The general question, therefore, is whether, at the time of the execution of the assignment of the bond and mortgage by the testator,, he intended to make an absolute gift to, or a settlement upon, the plaintiff of this bond and mortgage to take effect at his death. As there was not an actual delivery of the chose in action to the plaintiff in the lifetime of the testator, her right to recover must depend upon the solution of the question whether the testator intended to, and did, in fact, make an effective settlement upon her of this property before his death.

In the consideration of this question, the inquiry is naturally made, what is the evidence showing an actual declaration of a trust, through the medium of which an effective trust was established and the defendants required to account to the plaintiff for the proceeds of these securities ? To this end it is necessary to examine the facts and attending circumstances of the testator’s acts, his purposes, as declared by himself, both orally and written, somewhat in detail, in order to ascertain his intentions and to determine whether there, in truth, exists evidence of such declaration of trust.

The plaintiff, in the month of August, 1867, entered the service of the testator and his wife, as a household servant, upon an agreed compensation to be paid to her, and there remained in the employment of the testator and his wife until the death of the wife, which occurred in the year 1870. After that time the plaintiff continued in the testator’s family as a servant, but upon increased wages, until the testator’s death. Prior to the death of the testator’s wife the family consisted of the testator, his wife and the plaintiff. After the death of the wife it consisted of the testator, the plaintiff, and for about five years of the time of one Frances J. Field, a niece of the testator, who lived in the family, but who paid for her board. After the death of the testator’s wife the plaintiff had the entire charge of the household, doing much • manual labor for the family and nursing the testator in his illnesses. The deceased felt under many obligations to her, and lie manifested them very conspicuously in bis will and codicils thereto. By the will itself, which bears date June 14, 1878, he bequeathed to her the sum of $1,000. By the same instrument he devised to her the house and lands where he then resided, in the village of Le Roy, consisting of thirteen acres of land, absolutely, and bequeathed to her the household furniture in the homestead, including maps and pictures, together with the farming tools, horse, wagon, phaeton, cutter, robe, harness and such tools and implements as were used in carrying on that small farm. In addition thereto he gave to her, absolutely, out of the residue of the estate not thereinbefore disposed of, the further sum of $1,000. In this will the executors named were Lucius N. Bangs, Iliram W. Ilascall and James E. Hazleton.

The first codicil, which was executed June 14, 1880, contains nothing material to this case. On the twenty-second day of September of that year the second codicil was executed, but this likewise in no way affects the rights of the plaintiff. On the 29th day of January, 1883, the testator made and executed a third codicil, by which he appointed as one of the executors the defendant Charles J. Hill in the place of Lucius N. Bangs, in consequence of the contemplated removal of the latter from Le Roy to Buffalo. By the thirteenth clause of the will, power to sell and convey the real estate was given to the executors. By this third codicil such power was modified and explained so as not to refer to or include the real estate or appurtenances thereto belonging, which he had devised to the plaintiff in the eleventh clause of- the will. On the 22d day of October, 1883, the fourth codicil was executed by the testator. He therein asserts that in the eleventh clause of his last will and testament, in relation to the household furniture, he intended to include all beds and bedding, earthen and glass-ware, knives, forks and spoons, in short, all articles belonging to or in use in the house.

In the month of January, 1884, the testator had a conversation with Lucius N. Bangs, who had been his counsel in drawing the will and the first two codicils, and had been appointed one of the two executors therein, in which he told Mr. Bangs that he had made up his mind to make a provision for the plaintiff in addition to what he had made for her in his will; that the rate of interest had fallen from what it used to be, and that he had. made up his mind to give lier about two thousand dollars in addition to the provision for her in his will; that she had been very faithful in his household, and the provision in his will would be less valuable than when he made it. In the month of June of that year the testator handed the bond and mortgage to the defendant, Hill, and requested him to draw an assignment thereof to the plaintiff, and, as the referee finds, “ said something about his intention to give Libbie that.”

Sncli are the conclusions, in substance, reached by the learned referee upon questions of fact which, in this appeal, we have brought to bear primarily upon the .question of the testator’s declaration of a trust. The referee in his conclusions has not stated the evidence too strongly in favor of the plaintiff. Indeed, in one aspect thereof, the findings could have been much more conclusive against the defendants; for the defendant Hill himself was called in his own behalf as a witness and testified, in substance, on examination by his own counsel, that, a few days before the testator died, he requested him to take possession of some papers, including the assignment of this bond and mortgage, and the bond and mortgage themselves, which was accordingly done; that the testator said something about his intention to give Libbie the assignment, and wanted him to take the papers home and draw it. The witness said, in answer to this, that he had an assignment of a bond and mortgage at home which the testator had given him, and he would use that as a model. As stated above, after the assignment had been prepared, the papers were returned to the testator, who subsequently handed them to the defendant Hill, with the directions above mentioned.

I think that these facts show clearly an actual declaration of a settled purpose on the part of the testator, which was unrevoked at the time of his death, that this particular property should be turned over by his executors to the plaintiff after his death. A voluntary trust may be created by any words or acts of the testator indicating with reasonable certainty, first, an intention on the part of the truster to create a trust; and, second, the subject, purpose and beneficiary of the trust. (Fisher v. Fields, 10 Johns., 495 ; Briggs v. Penny, 3 Macn. & G., 554; Reeves v. Baker, 18 Beav., 379.)

Mr. Hill, by the arrangement, as testified to by himself, became a voluntary trustee under an obligation arising out of a personal confidence reposed in him by the testator, and he voluntarily accepted such trust for the benefit of the plaintiff. Everyone who voluntarily assumes the relation of a personal confidence of another is deemed a trustee within the meaning of the rule by which the intended settlement of property by one upon another is to be carried out. It is not necessary that the scheme of the truster should fall within any of the titles of uses and trusts of our Revised Statutes; it is sufficient if his purpose is to effect an end which could have been reached by contract between the truster and the beneficiary dealing directly with each other. The receipt by the defendant Hill of the securities, under the circumstances stated by him, shows an unqualified assent on his part to the assumption of the obligation reposed in him by the testator. He knew, because he had been told prior to the execution of the assignment, that the testator wanted the assignment drawn as a gift to the plaintiff. (Day v. Roth, 18 N. Y., 453.) We have, therefore, the mutual assent of the truster and the trustee to the creation of the obligation on the part of the trustee to carry out the express wishes of the deceased relating to this particular security. The beneficiary may avail herself of such trust arrangement, although unknown to her at the time, and may take advantage of the same after the death of the testator occurring before any rescission in fact, or any act tending to show a purpose to rescind the creation of such trust. (Moses v. Murgatroyd, 1 Johns. Ch., 119; Shepherd v. M'Evers, 4 id., 136; Cumberland v. Codrington, 3 id., 261; Weston v. Barker, 12 Johns., 276, 281; Neilson v. Blight, 1 Johns. Cas., 205; Acton v. Woodgate, 2 Mil. & K., 492.)

This trustee, Mr. Hill, had good reason to know what the purpose of the testator was, because an assignment of another bond and mortgage had been made to him, but the bond, in that instance, was retained by the testator for the purpose of collecting interest thereon during his lifetime. Mr. Hill, therefore, must be conclusively charged, under the facts stated by him, and under all of the circumstances of the case, with actual knowledge that it was the fixed purpose of the testator to have placed absolutely in the hands of the plaintiff, as owner, these securities after his death.

In point of equity, and according to clear reasoning, the proposition is plain, that he who assumes a confidential relation to another in any matter must, for the purpose of carrying out the wishes and making effective the intention of the other, be deemed to have acted according to his confidential instructions; and he cannot, either in his own behalf or in behalf of anybody else, be heard to dispute the obligation of the trust thus voluntarily assumed by him. Accordingly, we should treat this case as though Hill had, immediately after the death of the testator, actually delivered to the plaintiff these securities and the assignment thereof.

The case is much stronger in favor of the plaintiff than is that of Martin v. Funk (75 N. Y., 131), and the many cases there considered in the opinion bearing upon the general question. In the multitude of authorities it would be idle to cite any where the facts are materially different from those arising out of this case; but much instruction may be gleaned by the examination of Bunn v. Wunthrop (1 Johns. C Oh., 329); Barry v. Lambert (98 N. Y., 300); Schluter v. Bowery Savings Bank (117 id., 125); Beaver v. Beaver, (Id., 121); Mabie v. Bailey (95 id., 206); Gilman v. McArdle (99 id., 451).

The learned counsel for the appellant relies mainly upon the case of Young v. Young (80 N. Y., 422). Without, however, entering upon any discussion of the decision in that case, and the bearing of it upon subsequent decisions of the same court, it is, perhaps, enough to say that it contains clearly a recognition of the doctrine of Martin v. Funk (supra), but its conclusion was reached upon the ground that the case showed that there was not exhibited in the record a clear, consistent and continuous purpose on the part of the deceased in that case to make a settlement of the property upon the beneficiaries ; and that the withdrawal of a portion of the property from one of the packages of the securities, and using it for other purposes, was an act inconsistent with a settled and fixed purpose of making an absolute gift by way of settlement to take effect at his death. Even that case holds that, where the donor retains the property, a trust may still be created, if the acts and words relied upon for the creation of such trust be unequivocal and necessarily implied that the donor holds the property as trustee for the benefit of another. Were it necessary for the upholding of this judgment to decide that the possession of the bond and mortgage, and the assignment thereof, continued to be in the testator, we think that the ease of Martin v. Funk (supra), and other cases cited, would be sufficient authority to that end. But, under the facts disclosed in this case, we think that Mr. Hill was, under the duty imposed voluntarily, and accepted voluntarily by him, bound to deliver the- bond and mortgage and the assignment in question to the plaintiff upon the death of the testator.

This conclusion necessarily leads to an affirmance of the judgment, unless the exception to the competency of the witness Bangs -was well taken. Mr. Bangs was called as a witness and examined in reference to the intention of the testator, as above stated, in respect to giving the plaintiff a larger sum of money than had been bequeathed or devised to her by the will and codicils.. At this time Mr. Bangs was not the counsel for the testator, and he had no confidential relations with him as attorney. He had removed from Le Boy to Buffalo, and his name had been taken out of the number of executors, and that of Mr. .Hill substituted in his place. It was a casual conversation in the post-office at Le Boy on New Year’s day, where Mr. Bangs chanced to be visiting at the time. After Mr. Bangs removed to Buffalo he had done no business for, and had given the testator no advice in respect to his will or any other matter. The subject of the conversation was not the disposition of the decedent’s property by will, but of an entirely independent act in relation to a particular sum of money that he said he intended to give the plaintiff for the reason that, on account of the decrease of interest, the provision which had been made for her by will seemed to him to be inadequate. There is nothing in section 835 of the Code of Civil Procedure which prohibits, under these circumstances, the giving of such conversation in evidence. The witness was not asked professionally for his advice, and such advice was not given. It was the mere declaration of the testator to a person who had known of his-pecuniary condition up to a certain time, and of his general purposes, that he intended to give a certain person a given amount of property. Advice was neither sought nor given upon that question. The case, therefore, does not fall within the decision of Bacon v. Frisbie (80 N. Y., 394), nor Myers v. Dorman (34 Hun, 115).

The judgment appealed from should be affirmed.

Dwight, P. J., concurred; Lewis, J., dissented.

Judgment appealed from affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ALFRED HORTON, Respondent.

      Indictment — the place where the crime was committed must appea/i' therein.

    ¡Section 384 of tlie Code of Criminal Procedure makes it a requisite of a sufficient indictment tliat “it can be understood therefrom that the crime was committed at some place within the jurisdiction of the court.”
    Tlie charging part of an indictment did not specify any place where the alleged crime was committed, and a demurrer was upon this ground interposed thereto. Ilelcl, that the indictment was defective and the demurrer well taken.
    Appeal by the plaintiff, tlie People of the State of New York, from a judgment of the Court of Sessions of Monroe county, entered in the office of the clerk of the county of Monroe ón the 25th day of May, 1891, sustaining a demurrer interposed to an indictment which charged the defendant with the crime of grand larcency in the first degree.

      Id. H. Widener, for the appellant.

      C. O. Davy, for the respondent.
   Dwight, P. J.:

It is indisputable that an indictment should show, on its face, jurisdiction of the offense in the grand jury, by which it was found, and this it cannot do unless it show that the offense was committed in the county in which the grand jury was organized. In that respect the present indictment is clearly defective. It lays the venue of nearly every act and event mentioned, either by an original specification or by a then and there,” except of the act which constituted the crime charged, and that was omitted — probably through inadvertence.

The indictment charges, by way of inducement, that, on a day named, at the city of Rochester, in the county .of Monroe, the defendant was acting as trustee, etc., having theretofore been duly appointed as such by the surrogate of Monroe county, then and there having full power, etc.; that he then and there drily qualified as trustee, and thereupon received a sum of money named; then and there deposited in the savings bank, at Rochester, N. Y., the property of the person for whom he was then and there trustee, as aforesaid, and then it proceeds: “And this grand jury do further say that thereafter and on said 17th day of October, A. D. .1889, the said Alfred Horton did unlawfully and feloniously secreste, withhold and appropriate to his own use, etc., the sum of, etc., good and lawful money, of,” etc. This was the charging part of the indictment; the act here specified was that which constituted the offense, and to it no venue is attached; it does not appear that it was committed in the county of Monroe in which the indictment was found. In this respect it fails to comply with the requirements of the latest and most liberal of the statutes concerning criminal pleading. Section 281 of the Code of Criminal Procedure prescribes, among the requisites for the sufficiency of an indictment, that “ it can be understood therefrom that the crime was committed at some place within the jurisdiction of the court.” It cannot be understood, from this indictment, that the act constituting the crime was committed at any place within the jurisdiction either of the court in which the indictment was found, or of that in which the defendant was arraigned for trial, since no place is named or referred to in which it was committed.

¥e agree in the opinion of the learned county judge that, for the reason considered, the demurrer was properly allowed. The judgment appealed from should be affirmed.

Macombets and Lewis, JJ., concurred.

Judgment of Court of Sessions of Monroe county affirmed.


author: Macombeb, J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of GILBERT M. VANDEVORT, as one of the Executors of THOMAS VANDEVORT, Deceased.

      Will — a provision against making any claim against a testator’s estate — when unreasonable — a condition subsequent — when it does not forfeit the estate — rights of infant residuary legatees —jurisdiction of the Surrogate’s Court.

    A testator, by bis will, gave legacies to certain of his children and grandchildren, and directed that his residuary estate should be divided equally among all his children and grandchildren who should be living at his decease, share and share alike.
    In a codicil to his will he stated that, as he was in no wise pecuniarily indebted to any of his children, if any of them presented any claim against his estate, except under the provisions made for them by his will, neither the child so presenting a claim, nor any of the family of the child, should share in his estate, and that all devises and bequests made to such child should be null and void. There was, however, no gift over in case a.child thus forfeited its share. One of his children, having infant children who were entitled to share in the residuary estate, presented a claim to his executors, and it was established as a legal demand against the estate.
    In a proceeding taken.to settle the accounts of the executors:
    JAM,,that the claimant was not barred from sharing in the estate.
    That the legacy given the claimant under the will was absolute, and was of a specific sum not stated to be liable to deduction by reason of any indebtedness from the child to the parent.
    That the direction forfeiting the share was unreasonable, because it was predicated upon the non-existence of a debt which did, in fact, exist.
    That the condition was a condition subsequent.
    That a personal legacy, where there is no gift over, does not fail because of the taking effect of a condition subsequent attached thereto.
    That the infant children of the child making the claim, not being sui juris, could not be prejudiced by the act of their parent.
    That, therefore, the provision of the will cutting off the children of a child making a claim could not affect the rights of the infants in the residuary estate.
    That the Surrogate’s Court had jurisdiction to construe the codicil in order to determine the rights of the parties in the distribution of the estate.
    Appeal by Peter Garloclc, as one of the executors of Thomas Yandevort, deceased, from that portion of a decree of the Surrogate’s Court, entered in the office of the surrogate of Ontario county on the 2d day of November, 1890, whereby it was adjudged and decreed that the objections to said account be, and the same were, dismissed, and that the third clause of the first codicil to said testator’s will was inoperative and void; and also from that other portion of said decree whereby it was ordered, adjudged and decreed that no other, further or different sums of money for attorney or counsel fees or costs should be allowed to any party or person for services of attorney or counsel in this proceeding, payable from the estate of said Thomas Vandevort, deceased; and also from the decision of the surrogate of Ontario county, holding that the Surrogate’s Court had jurisdiction in this proceeding to construe said testator’s will and adjudge said third clause of said first codicil inoperative and void.
    The third clause of the first codicil of the will of Thomas Yandevort is stated, in substance, in the opinion.

      E. E Burnham, for Peter Garlock, executor, contestant and appellant.

      FrcmTc Bice, for respondent Gilbert M. Yandevort.

      James Robson for the respondents Clarence S. and Clara E. Yandevort.
   Macombeb, J.:

This appeal presents the question whether the respondent, Gilbert M. Yandevort, and his two children, Clarence S. Yandevort and Clara E. Yandevort, have forfeited the provisions of the will made in their behalf by reason of the filing, prosecution and recovery of a claim by Gilbert M. Yandevort against the decedent’s estate.

Thomas Yandevort, the testator, died on the 26th day of December, 1880, leaving a last will to which were attached two codicils. The will bears date August 4, 1875, the first codicil, February 4, 1878, and the second codicil June 12, 1879. By the terms of the will, the testator bequeathed and devised all of his property, situate in Michigan, to his grandchildren residing in that State; but to each of his other grandchildren, with the exception of Albert and Ellen Yandevort, children of A. S. Yandevort, deceased, he gave $1,000; to Albert and Ellen he gave $1,500 each; to his daughter, Maria Garlock, $3,000; to his daughter, Sarah E. Emory, $1,200, and to his son, Gilbert M. Yandevort, $500, each legacy payable two years after decease of the testator, who declared in the will that these bequests were intended to make his children equal in respect to his benefactions, taking into account advances theretofore made by him. The residue of his estate, both real and personal, including the proceeds of a farm of 204 acres in Ontario county (which his executors were empowered to sell), he devised and bequeathed among his children and grandchildren who should be living at his decease, share and share alike. The son, Gilbert M.Vandevort, and Peter Garlock, his son-in-law, were named as executors, and letters testamentary were subsequently, under the probate of the will, duly issued to them.

The first codicil contained the following provision : “As I am in no wise pecuniarily indebted to any of my children, I do hereby order and declare as my will, that if either or any of my sons or daughters shall present to my executors any claim against my estate, other than claims for legacies, bequests and devises provided by my will, that such son or daughter, and none of the family of such son or daughter, shall have any part or share in my estate, or in the distribution of proceeds thereof, and that any and all devises and bequests made in my will to such son or daughter shall be null and void.”

Under the findings of the surrogate, which are supported by conclusive evidence in the case, it appears that on the 4th day of February, 1878, the testator, at the time of executing the codicil containing this provision, was actually indebted to his son, the respondent, Gilbert M. Vandevort, in a certain sum of money; that the same was not paid by the testator during his lifetime, and the indebtedness continued up to the time of the death of the testator ; that the claim was properly proved in the Surrogate’s Court of Ontario county upon a judicial settlement of the accounts of Gilbert M. Vandevort, when acting as temporary administrator of the estate of Thomas Vandevort, and was paid to him in pursuance of the decree of the surrogate.

It is claimed by the learned counsel for the appellant that under the above facts Gilbert M. Vandevort and his two children, Clarence S. Vandevort and Clara E. Vandevort, forfeited their right to any portion of the estate bequeathed or devised to them by the will. In this contention we cannot concur. Undoubtedly, the testator having a right to say to whom he should bequeath and devise his property, had the right, also, to impose any proper, lawful and reasonable condition upon any gift which might in a certain event render the gift inoperative. (Schouler on Wills, 605; 2 Jarman on Wills, 58; Cooke v. Turner, 14 Simons, 495 ; S. C., 15 M. & W., 727; Evanturel v. Evanturel, 31 Law Times [N. S.], 105; L. R., 6 P. C., 1; Hogan v. Curtin, 88 N. Y., 162.)

The condition sought to be imposed by such provision of this codicil did not prevent the vesting of the gift, but was to the effect that the same might become inoperative in the event that after the death of the deceased and the probate of his will such a claim should be made against his estate. The cases of Brownson v. Gifford (8 How. Pr., 393); Hogeboom v. Hall (24 Wend., 146); Saekett v. Mallory (1 Metc., 355), have, with others, been pressed upon our attention as holding that in these circumstances the benefits of the will were forfeited by the respondents. These and other like cases, however, do not seem to us to be applicable to the facts before us for two reasons.

It will be observed that the bequest to Gilbert M. Yandevort was not of any particular sum, after deducting any supposed indebtedness of the testator to him, but was absolute in its terms. There is nothing in the codicil or elsewhere in the testament of the deceased, tending to show that if any such claim were made and established the amount of the gift contained in the will would be by so much less than it would otherwise be, as was the case In the Matter of Hollister (14 N. Y. St. Rep., 335). The testator undertook to establish, by his own positive and unsupported declaration, the fact that he was not indebted to any of his children. If he was in error in this respect, this provision of the codicil went upon an entirely mistaken hypothesis, and when shown to be erroneous, as a matter of fact, it must give way to the general intent expressed in the will. If it was but an arbitrary and deliberate assertion of a fact which he knew did not exist, it would be in its nature a fraud which could not prevail against the clear evidence that such indebtedness did, in fact, exist. Nowhere is there any intention of the testator to be gathered from the will and the codicils that a less sum should be given to Gilbert M. Yandevort and his children than is expressed in the will. Had the bequest been of these several sums of money and portions of his property, less the amount of any claim which might be presented against the estate, the question before us would be entirely different.

We are, consequently, of the opinion that this provision contained in the second codicil was unreasonable and ought not to be enforced in this instance, because it was placed either upon a fact of which the testator was ignorant or upon the ground which he positively knew did not exist. In either event we think the attempted forfeiture of the bequest was inoperative.

There is, however, another ground upon which the decree may be affirmed, and that, is, that the provision in question was a condition subsequent, and was made without a gift over of the bequest. A personal legacy, without any gift over, and which fails by reason of the taking effect of a condition subsequent, when made in the limited restraint of marriage or against the contesting of wills, does not fail, as Jarman, in his work on Wills (2 Jarman, 581), and the authorities there cited show. (See, also, Jackson v. Westerfield, 61 How., 399.) We know of no reason why the rule should be limited to the cases stated by Jarman. That author did not have in mind? doubtless, the fact that other conditions, such as the one before us, might be met in last wills. There is no fact in this case which brings it within the principle enunciated by a majority of the court in the Matter of Hollister (supra). Had the provision of the will been that, in case the iegatees accepted any provision of the will, they should give up any claim which they had against the estate, it would have been a condition precedent, and not a condition subsequent; and, in such a case, an acceptance of any provision of the will would manifestly prevent their successful prosecution of the debt. But, as has already been, perhaps, sufficiently stated, the codicil was executed under a misapprehension of facts, or else in disregard of the legal rights of the respondents, which the testator had no right to ignore. For these reasons we think the decree should be affirmed.

In addition to the foregoing reasons there is another which appertains only to the children of Gilbert M. Yandevort, namely, Clarence S. Yandevort and Clara E. Yandevort, both of whom were infants at the time of the probate of the will, and one still an infant, namely, Clara E. Yandevort. In respect to these grandchildren of the testator, it appears to us that there was no condition imposed by the testator which might be considered a condition precedent to the taking effect of their legacies; being infants, and hence without power to appear in court or to act in their own behalf, a provision for them, otherwise valid, could not, in our judgment, be defeated because of the failure of another person, though their father, to observe the directions of the will. (See Bryant v. Thompson, 37 N. Y. St. Rep., 431.)

For these reasons we think the decree was correct on the merits and that it should be affirmed.

It is also urged, in behalf of the appellant, that the surrogate had not jurisdiction to consider and pass upon these questions. Without- elaborating upon that matter, we content ourselves by simply calling attention to the fact that the question was decided by us in October, 1890, in the case of Peter Garlock, Executor., etc., v. Ella Vandevort and Others (58 Hun, 601), which decision was affirmed by the Court of Appeals and reported in Garlock v. Vandevort (28 N. E. Rep., 599).

Dwight, P. J., and Lewis, J., concurred.

Decree of the surrogate of Ontario county appealed from affirmed, with costs to the respondents payable out of the estate.


author: Landon, J.

text:
    The People of the State of New York, Respondent, v. Orson M. Wilson, Appellant.
   Opinion by

Landon, J.

Judgment aud conviction affirmed.


author: Learned, P. J

text:
    Fred Keefer, Appellant, v. Lewis Greene, Respondent.
   Opinion by

Learned, P. J

Judgment reversed, new trial granted, costs to abide event.


text:
    In the Matter of the Application of Emma J. Taggard to compel Henry N. Hewitt, Executor, to account, etc.
   Opinion by

Landon, J.

Order affirmed, with costs.


author: Learned, P. J.;

text:
    George B. Gallup, Respondent, v. August Belmont and others, Appellants.
   Opinion by

Learned, P. J.;

Interlocutory judgment overruling demurrer reversed and judgment for defendants on demurrer, with, costs.

May-ham, J., not acting.


author: Mayham, J.;

text:
    John M. Holmes, Appellant, v. The Union Telegraph and Telephone Company, Respondent.
   Opinion by

Mayham, J.;

Judgment and order affirmed, with costs.

Landon, J., not acting.


author: Learned, P. J.

text:
    Alfred Humphrey, Respondent, v. The Prudential Insurance Company of America, Appellant.
   Opinion by

Learned, P. J.

Judgment and order affirmed, with costs.


author: Mayham, J.

text:
    Moses T Sayles, Appellant, v. The National Water Purifying Company, Respondent.
   Opinion by

Mayham, J.

Judgment affirmed, with costs.


text:
    Patrick Johnson, Appellant, v. The Village of Glens Falls, Respondent.
   Opinion by

Landon, J.

Judgment affirmed, with costs.


author: Mayham and Landon, JJ.;

text:
    The Bagley and Sewall Company, Respondent, v. The Saranac River Pulp and Paper Company, Appellant.
   Opinions by

Mayham and Landon, JJ.;

Judgment affirmed, with costs.

Learned, P. J., not voting.


text:
    Jeremiah Hailey, Respondent, v. Sophia Ano, Appellant.
   Opinion by

Landon, J.

Judgment and order affirmed, with costs.


author: Landon, J., and by Mayham, J.

text:
    James C. Birge, Respondent, v. The Berlin Iron Bridge Company, Appellant.
   Opinion by

Landon, J., and by Mayham, J.

dissenting.

Order reversed and injunction vacated, with ten dollars costs and printing disbursements.


author: Mayham, J., and by Landon, J.,

text:
    Matthew Barker, Appellant, v. The Town of Oswegatchie and others, Respondents.
   Opinion by

Mayham, J., and by Landon, J.,

dissenting.

Order affirmed, with ten dollars costs and printing disbursements.


author: Mayham, J

text:
    Matthew Barker, Appellant, v. Town of Oswegatchie and McConville and others, Respondents.
   Opinion by

Mayham, J

Appeal from, order refusing to punish for contempt. Order affirmed, with ten dollars costs and printing disbursements.


text:
    William Moore, Appellant, v. Simeon Brown, Respondent.
   Opinion by

Landon, J.

Judgment reversed, new trial granted, costs to abide event.


text:
    Constance B. Price, Appellant, v. De Witt C. Holman and others. Respondents.
   Opinion by

Learned, P. J.

Judgment reversed, new trial granted, costs to abide event.


text:
    Andrew F. Pitts, Respondent, v. William S. Lighthall and others, Appellants.
   Opinion by

Landon, J.

Judgment and order reversed, new trial granted, costs to abide event.


author: Landon and Mayham, JJ.

text:
    John B. Newland and others, Appellants, v. The Hudson River Water Power and Paper Company, Respondent.
   Opinions by

Landon and Mayham, JJ.

—Judgment affirmed, with costs.


text:
    Alfred Cooper, Administrator, Respondent, v. Watson P. Harvey, Appellant.
   Opinion by

Mayham, J.

Judgment affirmed, with costs.


text:
    William H. Jackson, Respondent, v. Stephen Collins, Appellant.
   Opinion by

Mayham, J.

—Judgment affirmed, willx costs.


text:
    James Thompson and others, Appellants, v. Clarence R. B. Fuller and others, Respondents.
   Opinion by

—Judgment affirmed, with costs.

Learned, P. J.


author: May-ham, J.

text:
    Bridget Noonan, Administratrix, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Opinion by

May-ham, J.

Judgment and order affirmed, with costs.


text:
    Francis McCaffrey, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Opinionby

Learned, P. J.

Judgment and order affirmed, with costs.


text:
    Caroline Hebert, Administratrix, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Opinion by

Mayham, J.

—Judgment affirmed, with costs.


text:
    Alexander H. Kerr, Respondent, v. Mary Hannon, Appellant.
   Motion for a reargument, and to go to the Court of Appeals, denied. (No opinion.)


text:
    Anna J. Clark, Respondent, v. Theodore W. Todd and others. Appellants.
   Opinion by

Learned, P. J.;

Order reversed, report confirmed, judgment for defendants, with costs.

May-ham, J., not acting.


text:
    James N. Mussen, Respondent, v. Jehiel B. White, Appellant.
   Opinion by

Landon, J.

Judgment affirmed, with costs.


text:
    Mary Astheimer, Respondent, v. Patrick J. O’Pray, Appellant.
   Opinion by

Learned, P. J.;

Judgment affirmed, with costs.

Mayham, J., not acting.


author: Maybam, J.

text:
    Peter A. Strack, Respondent, v. John Hurd, Appellant.
   Opinion by

Maybam, J.

Judgment affirmed, with costs.


text:
    Minnie O’Neil, by Guardian, Respondent, v. Fred. G. Battie, Appellant.
   Order modified so as to charge defendant only in his repre: sentative capacity. (No opinion.)


text:
    James M. Smith, Executor, Respondent, v. Frank Pelott, Appellant.
   Mem. by

Mayham, J.

Motion for reargument granted.


text:
    The People of the State of New York ex rel. Glens Falls Insurance Company, Respondent, v. John E. Landon and others, Appellants.
   Order modified, with ten dollars cost3 and printing disbursements. (No opinion.)


text:
    Henrietta Church, Executrix, Appellant, v. Daniel D. Barkman, Executor, Respondent.
   Opinion by

Landon, J.

Order affirmed, with ten dollars costs and printing disbursements.


author: Learned. P. J.

text:
    Alice Wilsie. Respondent, v. James Rooney, Sheriff, Appellant.
   Opinion by

Learned. P. J.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    In the Matter of the Dissolution of The Whitehall Lithographic Company.
   Order affirmed, with ten dollars costs and printing disbursements. (No opinion.)


text:
    Orrando P. Dexter. Appellant, v. Warren Joseph Alfred. Respondent.
   Order affirmed, with ten dollars costs and printing disbursements. (No opinion.)


text:
    Orlando F Heath, Appellant, v. Frank C. Satterlee, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements. (No opinion.)


text:
    Simeon C. Garrett, Respondent, v. Clarissa M. Horton, Appellant.
   Opinion by

Learned, P. J.

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. The Seth Thomas Clock Company, Appellant, v. Edward Wemple, as Comptroller of the State of New York, Respondent.
   Opinion by

Landon, J.

Proceedings confirmed, with fifty dollars costs and disbursements.


text:
    In the Matter of the Application of Edward Tracy and others, as Water Commissioners of Lansingburgh, v. Warren Erwin and others.
   Opinion by

Landon, J.

Order affirmed, with fifty dollars costs and disbursements.


text:
    Alvah J. Zimmer, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Opinion by

Landon, J.

Judgment reversed and new trial granted, with costs against plaintiff of this appeal, unless plaintiff stipulate in thirty days to reduce recovery to $100,with interest thereon from July 31, 1890, and costs. If he so stipulates judgment affirmed, with costs.


text:
    John Leedings, Appellant, v. Daniel Wilsey, Respondent.
   Judgment of County Court affirmed, with costs. (No opinion.)


text:
    Charles S. Weston, Appellant, v. Mary R. Stoddard, Impleaded with others, etc., Respondents.
   Opinion by

Learned, P. J.;

Order affirmed, with ten dollars costs and printing disbursements.

Kellogg, J.. not acting.


text:
    Charles E. Huested and others, Respondents, v. Willard D. Bliss, Appellant.
   Opinion by

Mayham, J.

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. Patrick J. McTigue, Appellant, v. James H. Manning and others, Constituting the Board of Police Commissioners of the City of Albany, Respondent.
   Opinion, by

Learned, P. J.

Proceedings confirmed, with fifty dollars costs and disbursements.


text:
    Joseph W. Bradshaw and others, Respondents, v. Agricultural Insurance Company, Appellant.
   Opinion by

Mayham, J.

Judgment affirmed, with costs.


author: Learned, P. J. •

text:
    Clarence P. Stoddard, Appellant, v. The President, etc., of the Delaware and Hudson Canal Company, Respondent.
   Mem. by

Learned, P. J. •

Order affirmed, with ten dollars costs and printing disbursements.

Kellogg, J., not acting.


text:
    Orrando P. Dexter, Appellant, v. Warren Joseph Alfred, Respondent.
   Order denying motion to change place of trial affirmed, with ten dollars costs and printing disbursements. (No opinion.)


text:
    James B. Avery, Administrator, Respondent, v. Hannah Mabey and others, Appellants.
   Opinion by

Learned, P. J.

Judgment reversed, and complaint dismissed, with costs.


text:
    The People of the State of New York ex rel. John H. Derby v. Prank Rice and others, and four other cases against same defendants.
   Order affirmed. (No opinion.)


text:
    The People of the State of New York ex rel. Rufus D. Peck v. Fank Rice and others, and three other cases against the same defendants.
   Orders affirmed. (No opinion.)


author: Barnard, P. J.;

text:
    The People of the State of New York ex rel. - Nichols v. The Board of Supervisors of Queens County.
   Opinion by

Barnard, P. J.;

Motion denied, with ten dollars costs,

Dykman, J., not sitting.


author: Pratt, J.;

text:
    Henry C. Griffin, Plaintiff, v. John A. Todd, Defendant.
   Opinion by

Pratt, J.;

Motion denied, with ten dollars costs.

Dykman, J., not sitting.


author: Barnard, P. J.,

text:
    Ellie Weill and others, Appellants, v. Joseph Malone and others, Respondents.
   Opinions hy

Barnard, P. J.,

Motion denied, with ten dollars costs.

and Pratt, J.


author: Pratt, J,

text:
    Oliver Downs, Plaintiff, v. Maria Wells, Defendant.
   Opinion by

Pratt, J,

—Motion denied, without costs.


author: Dykman, J.

text:
    Matter of Probate of Will of William Townsend, Deceased.
   Opinion by

Dykman, J.

Decree of Surrogate affirmed, with costs.


author: Pratt, J.

text:
    William Harrigan, Respondent, v. The City of Brooklyn, Appellant.
   Opinion by

Pratt, J.

Judgment and order denying new trial reversed, and new trial granted, costs to abide event.


text:
    Matter of Probate of Will of Homer A. Nelson, Deceased.
   Opinion by

Pratt, J.

Decree admitting will to probate affirmed, with costs


text:
    Louis P. Wiegmann, Respondent, v. Benjamin Sire and others. Appellants.
   Opinion by

Barnard, P. J.;

Judgment affirmed, with costs.

Dykman, J., not sitting.


text:
    Nelson J. Duryea, Plaintiff, v Tredwill D. Smith and others, Defendants.
   Opinion by

Barnard, P. J.;

—Judgment affirmed, with costs.

Dykman, J., not sitting.


author: Barnard, P. J.

text:
    Samuel McElroy, Respondent, v. Henry Munford and others, Appellants.
   Opinion hy

Barnard, P. J.

Judgment affirmed, with costs.


text:
    Matter of Rosalie-Whitmore, Respondent, v. The Village of Tarrytown, Appellant.
   Opinion by

Pratt, J.;

Orders appointing commissioners and judgment upon their reports affirmed, with costs.

Dykman, J., not sitting.


author: Dykman, J.;

text:
    Grove M. Harwood, Plaintiff, v Oscar H. La Grango. Defendant, Impleaded.
   Opinion by

Dykman, J.;

Judgment affirmed, with costs.

Barnard. P. J., not sitting.


text:
    Ambrose Lee, Respondent, v. Andrew J. Wightman, Appellant.
   Opinion by

Dykman, J.;

Judgment affirmed, with costs.

Barnard, P. 3., not sitting.


text:
    John Seton, Respondent, v. Heman Clark, Appellant.
   Opinion by

Barnard, P. J.

Judgment and order denying new trifU. affirmed, with costs.


author: Barnard, P. J

text:
    Ada Allen, Plaintiff, v. Annie E. O. Reiley, Defendant.
   Opinion by

Barnard, P. J

Judgment of County Court reversed, and that of justice affirmed, with costs.


author: Dykman. J

text:
    Charles H. Gross, Respondent, v. The Pennsylvania, Poughkeepsie and Boston Railroad Company. Appellant.
   Opinion by

Dykman. J

Judgment and order denying new trial affirmed, with costs.


text:
    Margaret A. Kessler, Respondent, v. Prank J. Lockwood, Appellant.
   Opinion by

Barnard, P. J.

Judgment affirmed, with costs.


text:
    Elmer E Furman. Respondent, v. J. Myers Taylor and others. Commissioners, Appellants.
   Opinion by

Dykman, J.

Judgment affirmed, with costs.


author: Pratt. J.;

text:
    August Bonas v. Aloyses Steffens.
   Opinion bv

Pratt. J.;

Judgment and order denying new trial reversed and new trial granted, costs to abide event

Barnard, P. J., not sitting.


text:
    John Porshay and others. Respondents, v. William A. Boyd and others, Appellants.
   Opinion by

Barnard, P. J.

Judgment affirmed, with costs.


text:
    Clarence B. Cunger, Appellant, v. Samuel D. Kinney, Respondent.
   Opinion by

Judgment affirmed, with costs.

Dykman, J.


text:
    William G. Slater and others, Appellants, v. Hannah McGuire, Respondent.
   Opinion by

Pratt, J.;

Judgment and order denying new trial reversed and. new ■trial granted, costs to abide event.

Barnard, P. J., not sitting.


text:
    Mary Hoskins, Administratrix, v. James Stewart and others.
   Opinion by

Barnard, P. J.,

—Judgment affirmed, with costs.

on former appeal;

Dykman, J., not sitting.


author: Barnard, P- J.

text:
    Frank McNally and others, Plaintiffs, v. Phœnix Insurance Company of Brooklyn. Defendant.
   Opinion by

Barnard, P- J.

Exceptions overruled and judgmentfor defendant,with costs.


author: Dykman and Pratt, JJ.;

text:
    Joseph Kellow, Respondent, v. The Long Island Railroad Company, Appellant.
   Opinions by

Dykman and Pratt, JJ.;

Judgment affirmed, with costs.

Barnard, P. J., not sitting.


text:
    The Excelsior Brick Company, Respondent, v. The Village of Haverstraw, Appellant.
   Opinion by

Barnard, P. J.

—Judgment reversed and new trial granted. Costs to abide event.


text:
    The Thurber-Whyland Company, Respondent, v. Frank Klittner, Appellant.
   Opinion by

Pratt, J.

Order affirmed, with ten dollars costs and disbursements.


text:
    Lewis R. Stegman, Respondent, v. Henry S. Hollingsworth, Appellant, Impleaded.
   Opinion by

Barnard, P. J.

Order affirmed, with costs and disbursements.


author: Dykman, J.,

text:
    William V. Molloy and another v. Board of Health of Mamaroneck.
   Dykman, J.,

not sitting.

Motion denied.


text:
    The People of the State of New York ex rel. John J. Curtin, Appellant, v. The Board of Education of the City of Brooklyn, Respondent.
   Opinion by

Dykman, J.

—Judgment affirmed, with costs.


text:
    Eliza J. White. Administratrix, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Opinion by

Barnard, P. J.

Exceptions sustained aud a new trial granted, costs to abide event.


text:
    Michael T Daly. Respondent, v. Theodore Hellman, Appellant.
   Opinion by

Dykman, J.

Order affirmed, with ten dollars costs and disbursements.


text:
    Ann E. Wilcox, Appellant, v. Charles J. Quinby, Respondent.
   Opinion by

Barnard, P. J.;

Judgment reversed and new trial granted, costs to abide event.

Dykman, J., not sitting.


text:
    Francis Dent, Appellant, v. The Society of the Friars Minor, etc., Respondent.
   Opinion by

Dykman, J.

Order affirmed, with costs and disbursements.


text:
    Edgar Eighme v. Jacob Townsend.
   Motion for leave to appeal to Court of Appeals granted.


text:
    Edward Haynes, Appellant, v. Edward Hatch, Respondent.
   Opinion by

Pratt, J.

Order affirmed, without costs.


text:
    John J. Campbell, Respondent, v. William Ernest, Appellant.
   Opinion by

Dykman, J.;

Order reversed, with ten dollars costs and disbursements.

Barnard, P. J., not sitting.


author: Pratt, J ;

text:
    James L Reynolds, Respondent, v. Henry S. Craus, Appellant.
   Opinion by

Pratt, J ;

Order reversed, with costs to abide event.

Barnard. P. J., not sitting.


text:
    The People of the State of New York ex rel. The Trustees of the Village of Jamaica, Plaintiffs, v. The Board of Supervisors of Queens County, Defendants.
   Opinion by

Barnard, P. J.

Judgment and action of supervisors in respect to improvement of roads in Jamaica affirmed, with costs.


text:
    Frederick H. Schild v. Central Park, North and East River Railroad Company.
   Opinion by

Barnard, P. J

Judgment and order denying new trial affirmed,,with costs.


author: Dyionan and Pratt, JJ.

text:
    Gustav A. Kirchner, Respondent and Appellant, v. The New Home Sewing Machine Company, Appellant and Respondent.
   Opinions by

Dyionan and Pratt, JJ.

Judgment and order denying new trial affirmed, with costs. Order refusing treble damages affirmed, with ten dollars costs and disbursements.


author: Dykman. J.

text:
    Edward Leach, Appellant, v. Brooklyn, Bushwick and Queens County Railroad Company, Respondent.
   Opinion by

Dykman. J.

Judgment and order denying new trial affirmed, with costs.


text:
    George Krey. Administrator, Appellant, v. Charles Schlussner, Respondent.
   Opinion by

Pratt, J.

Judgment reversed and new trial granted, costs to abide event.


text:
    Anna B. Anderson, Respondent, v. The Supreme Council of the Order of Chosen Friends, Appellant.
   Opinion by

Dykman, J.

Judgment and order denying new trial affirmed, with costs.


text:
    James Cargain, Jr., Respondent, v. William W. Everett, Appellant.
   Opinion by

Pratt, J.

Judgment affirmed, with costs.


text:
    Lawrence B. Valk, Respondent, v. Ferdinand McKiege, Appellant.
   Opinion by

Barnard, P. J.

Judgment affirmed, with costs.


text:
    Jennie Emmerson, Respondent, v. Frank H. Emmerson, Appellant.
   Opinion by

Dykman, J.;

Judgment and order affirmed, with costs.

Pratt, J., not sitting.


author: Barnard, P J.

text:
    Emanuel Simons, Appellant, v. George W. Evans, Respondent.
   Opinion by

Barnard, P J.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


text:
    Philomena Giraldo, an Infant, Respondent, v. The Coney Island and Brooklyn Railroad Company, Appellant.
   Opinion by

Pratt, J.

Judgment, and order deny - mg new trial affirmed, with costs.


text:
    George W. Martin and another, Respondents, v. James C. Matthews and another, Appellants.
   Opinion by

Barnard, P. J.

Judgment and order denying new trial affirmed, with costs.


text:
    Board of Health. New Rochelle, v. Eugenia Valentine.
   Motion denied.


text:
    John M Bridge v. The Orange County Railroad Company.
   Barnard, P. J.,

not sitting.

Motion denied.


author: Pratt, J.;

text:
    Sarah Coyne, Respondent, v. The Manhattan Railway Company, Appellant.
   Opinion by

Pratt, J.;

—Judgment and order denying new trial affirmed, with costs.

Dykman, JM not sitting.


text:
    Henry W. Thomas, Administrator, etc., Respondent, v. Gerd H. Henjes, Appellant.
   Opinion by

Barnard, P. J.

Judgment, and order denying new trial affirmed, with costs.


text:
    Mary L. Young, Respondent, v. Joseph A. Kingsbury, Appellant.
   Opinion by

Pratt, J.

Judgment and order denying new trial affirmed, with costs.


author: Dykman. J.;

text:
    Russell Brusie, Respondent, v. Peck Brothers & Co., Appellant.
   Opinion by

Dykman. J.;

Judgment and order denying new trial affirmed, with costs.

Pratt, J., not sitting.


text:
    Amanda Paddock and another. Appellants, v. Hannah Spiedel and another, Respondents
   Opinion by

Dykman, J.;

Judgment sustaining demurrer to complaint affirmed, with costs.

Barnard, P. J., not sitting.


text:
    Burton E. Kipp, Respondent, v. Charles B. Scott and another, Appellants.
   Opinion by

Barnard, P. J.

Judgment and order denying new trial affirmed, with costs.


text:
    The People of the State of New York ex rel. The Trustees of St Patrick’s Cathedral, Respondents, v. James Davren and others, Assessors, Appellants.
   Opinion by

Barnard, P. J.

Order affirmed, with costs.


text:
    Caroline L. G. Scott, Respondent, v. Haverstraw Olay and Brick Company, Appellant.
   Opinion by

Dykman, J.

Judgment affirmed, with costs.


text:
    Adelia F. Gedney, Appellant, v. Orrin D. Kingsley, Respondent.
   Opinion by

Barnard, P. J.

Judgment and order denying new trial affirmed, with costs.


text:
    Andrew J. Nutting, Respondent, v. The Kings County Elevated Railroad Company, Appellant.
   Opinion by

Dykman, J.

—Judgment and order denying new trial reversed, and new trial granted, costs to abide event.


text:
    The People of the State of New York ex rel. Warren Foster, Appellant, v. James Howell and others, as Trustees, etc., Respondents.
   . Opinion by

Pratt, J.;

Order dismissing relator affirmed, with costs.

Dykman, J., not sitting.


text:
    William Johnston, Appellant v. Mary E. Theall, Respondent.
   Opinion by

Dykman, J.;

Judgment affirmed, with costs.

Barnard, P. J., not sitting.


text:
    Matter of Probate of last Will of William W. Merriman, Deceased.
   Opinion by

—Decree affirmed, with costs.

Barnard, P. J.


text:
    Wilson & Adams Company of Mount Vernon v. Henry A. Schorop and others.
   Opinion by

Barnard, P. J.

Order affirmed, with costs.


author: Barnard P. J.

text:
    Frances E. Parsons, Respondent v. Edward Hughes, Appellant.
   Opinion by

Barnard P. J.

—Judgment and order denying now trial affirmed, with costs.


author: Pratt, J. ;

text:
    John Flannery, Respondent v. J Wesley Van Tassel, Appellant.
   Opinion by

Pratt, J. ;

Judgment and order denying new trial affirmed, with costs.

Barnard, P. J., not sitting.


text:
    The New York Central and Hudson River Railroad Company, Appellant v. Thomas Aldrich. Respondent. Same, Appellant, v. Same and others. Respondents. Same, Appellant, v. Same and others, Respondents. Same, Appellant, v. Same and others, Respondents.
   Opinion by

Dykman,J.;

Judgment in each of these cases affirmed, with costs.

Barnard, P. J., not sitting.


text:
    Alexander Saunders v. The New York Central and Hudson River Railroad Company.
   Dykman, J.,

not sitting.

Judgment affirmed, with costs on opinion in Hudson River Railroad Company v. Aldrich.


text:
    Matter of Petition of John Newton, Commissioner, etc. In re Claim of Academy of Sacred Heart.
   Opinions by

Dykman, J.,

Order affirmed, with costs and disbursements.

and

Barnard, P. J.


author: Kellogg, J.

text:
    Margaret Kain. Administratrix, Respondent, v. Patrick Larkin and others, Appellants.
   Opinion by

Kellogg, J.

Judgment affirmed, with costs.


author: Learned, P. J.

text:
    Richard Bishop, Respondent, v. Helen E. Hendrick, Appellant.
   Opinion by

Learned, P. J.

—Judgment affirmed, with costs.


author: Mayham, J.

text:
    Wallace B. Rowe, Respondent, v. Isaac H. Lent, Appellant.
   Opinion by

Mayham, J.

Judgment ana order affirmed, with costs.


author: Kellogg, J.;

text:
    Benjamin L. Conde, Administrator, Respondent, v. Hiram Wiltsie and others. Executors, etc., Appellants.
   Opinion by

Kellogg, J.;

—Judgment and order affirmed, with costs.'

May-ham, J., not acting.


text:
    Albert H. Sweny, Respondent, v. John N. Peaslee and others, Appellants.
   Opinion by

Mayham, J.

Judgment affirmed, with costs.


text:
    Mary E. Herdman, Administratrix, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   Opinion by

Kellogg, J.

Judgment affirmed, with costs.


text:
    Harriet MacDonald, Respondent, v. Maria MacDonald and others, Appellants.
   Opinion by

Learned, P. J.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    Anna S. Carpenter, Appellant, v. Hiland Carpenter, Respondent.
   Opinion by

Kellogg, J.;

Order modified by striking out the words “ and fifteenth ” and inserting the word “and” between “thirteenth” ana “fourteenth,” and as modified affirmed, with ten dollars costs to appellant. Defendant to serve copy order, and plaintiff to have ten days to comply.

Mayham, J., not acting.


text:
    Henry E. Weed, Respondent, v. Fire Association of Philadelphia, Appellant.
   Opinion by

Mayham, J.

Judgment affirmed, with costs.


text:
    The Phœnix Mills, Appellant, v. James A. Miller, Respondent.
   Opinion by

Learned, P. J.

Judgment affirmed, with costs.


author: Putnam, J.

text:
    John Moore, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Opinion by

Putnam, J.

Judgment affirmed, with costs.


author: Learned, P. J.;

text:
    Deyoe Lohnas, Respondent, v. William J. Arkell, Appellant.
   Opinion by

Learned, P. J.;

Judgment affirmed, with costs.

Putnam, J., not acting.


author: Van Brunt, P. J.

text:
    In the Matter of Peter Cain, Deceased.
   Opinion by

Van Brunt, P. J.

Order affirmed, with costs.


text:
    The New York, Lake Erie and Western Railroad Company, Appellant, v. The National Steamship Company, Respondent.
   Opinion by

Van Brunt, P. J.

Judgment affirmed, with costs.


author: Barrett, J.

text:
    Frank H. Graf, Appellant, v. Joel B. Smith, Respondent.
   Opinion by

Barrett, J.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.


text:
    Johannah Hurley, Respondent, v. Philip Schring. Appellant.
   Opinion by

Van Brunt, P. J.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.


text:
    Francis W. Jencks, Appellant, v. Edward Kearney and others, Respondents.
   Opinion by

Van Brunt, P. J.

Judgment affirmed, with costs.


text:
    Henry Moriarty, Respondent v. William Zepp, Appellant.
   Opinion by

Barrett, J.

Judgment affirmed, with costs.


text:
    Samuel Wiener, Respondent, v. The New York Elevated Railroad Company and another, Appellants.
   Opinion by

Barrett, J.

Judgment affirmed, with costs.


author: Barrett, J

text:
    The People of the State of New York ex rel. Michael G. Kuhn, Respondent, v. The Protestant Episcopal House of Mercy of the City of New York, Appellant. In the Matter of the Custody of Josephine Kuhn.
   Opinion by

Barrett, J

Order affirmed, with costs.

       I am advised, since the handing down of the decision, that upon the settlement of the order no costs were awarded — [Rep.


author: JPer Oimam

text:
    Johnn Fitzpatrick, Respondent, v. The New York Elevated Railroad Company and another, Appellants.
   Opinion

JPer Oimam

Judgment affirmed, with costs.

Otto Heinze and others, Respondents, v. Oliver W. Buckingham and others, Appellants.—

Judgment and order reversed and new trial ordered, with costs to appellants to abide the event.

Opinion by Barrett, J. \


author: Andrews, J.

text:
    Charles E. Rycroft, Appellant, v. Henry W. Green, Respondent.
   Opinion by

Andrews, J.

Order reversed, with costs and disbursements to the appellant, and motion granted.


author: YanBrunt, P.J.

text:
    Lucy M. Rice, Respondent, v. Henry Thompson, Appellant, Impleaded, etc.
   Opinion by

YanBrunt, P.J.

Judgment ^affirmed, with costs.


author: Per Ounam.

text:
    Robert B. Nooney, Respondent, v. The New York Elevated Railroad Company and another, Appellants.
   Opinion

Per Ounam.

Judgment affirmed, with costs.


text:
    John D. Cutter and others, Appellants, v. Alexander W. Hume and others, Respondents.
   Opinion by

Van Brunt, P. J.

Judgment affirmed, with costs.


text:
    Maunsell Van Rensselaer, Respondent, v. Edward S. Bull and others, Appellants.
   Opinion by

Andrews, J.

Order affirmed, with costs.


author: Andrews and Barrett, JJ.

text:
    The People of the state of New York, Respondent, v. Samuel W. Lewis, Appellant.
   Opinions by

Andrews and Barrett, JJ.

Judgment affirmed.


text:
    Charles A. Cowen and others, Appellants, v. Margaret Paddock and others, Respondents.
   Opinion by

Andrews, J.

Judgment affirmed, with costs.


text:
    The People of the State of New York, Plaintiff, v. The American Loan and Trust Company, Defendant.
   Opinions by

Andrews and Barrett, JJ.

Order affirmed, with costa.


text:
    John Brooks, Appellant, v. Samuel B. Dick and others, Respondents.
   0pinion by

Andrews, J.

Judgment affirmed, with costs.


author: Yan Brunt, P. J.

text:
    Margaret M. Brennan, as Administratrix, etc., Plaintiff, v. Susan E. Hall and others, Defendants, Sarah A. Jarvis, Appellant.
   Opinion by

Yan Brunt, P. J.

Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York, Respondent, v. Samuel Fisher, Appellant.
   Opinion by

Yan Brunt, P. J.

Judgment affirmed.