text:
    AMELIA T. THOMPSON, Respondent, v. CHARLES THOMPSON, Respondent, and MARY T. McCONIHE, as Executrix, etc., of GILBERT G. THOMPSON, Late of the City of Troy, Deceased, Appellant.

      \filimony to a wife— ordered to be paid out of the income of a fund held in trust for the husband — rights of such wife and their child in such income, as against creditor's of the husband.

    Wiiere, in an action ior divorce, an allowance for alimony is made to tlie plaintiff, the wife, to be paid by her husband, a trustee required by the will of his testator to pay over, annually, to the husband the income of a trust estate, may be ordered by the court to pay to the wife an amount of such income equal to the alimony awarded to her.
    A trust, created by a will which gives the rest and residue of the testator’s estate to the executrix therein named, in trust, to invest the same and pay over the income, thereof to the son of the testator up to a certain date, and at such date to pay over the corpus of the trust to said son, extends also to the support of the wife and child of such son; and a judicial provision for their support out of such income is a proper application thereof, and paramount to the rights of judgment-creditors of the husband.
    Appeal by Mary T. McOonibe, as executrix, etc., from a judgment in favor of the plaintiff entered, upon the decision of the court after a trial at the Rensselaer Special Term, in the office of the clerk of Rensselaer county, February 1, 1889.
    The plaintiff obtained, on the 19th day of April, 1888, a judgment of divorce against her husband, the defendant Charles Thompson. The judgment directed the defendant to pay the plaintiff, yearly, the sum of $800 for her support and that of their child, whose custody was awarded to her. The defendant is entitled, under the will of his deceased father, to the income upon an estate valued at $39,344, which income was found in this action to be $1,600 yearly. The defendant Mary T. McConihe is the executrix and trustee under the will, and has the custody of the estate charged with the payment of said income under the will of Gilbert G. Thompson, which provides in the third item thereof as follows:
    “Thvrd. I further give, devise and bequeath unto my said executrix, all the rest, residue and remainder of my estate, real, personal and mixed, and of every name and nature whatsoever, and wheresoever the same may be situated, including all that I am now or may hereafter be entitled to take and receive under and by virtue of the will of my father, Charles ~W. Thompson,, deceased, at the time of the death of my mother, Margaret Gr. Thompson, in trust, nevertheless to take possession and charge of the same and every part thereof, and to use, manage, sell, dispose of, loan out, invest and reinvest, and apply the same and the interest, profits, income and avails thereof, to and for the following uses and purpose's, that is to say: First. To account for and to pay over the net income, interest, and use of the same as it may from time to time be received by my said executrix, to my said son, Charles E. Thompson, until the first day of January, in the year one thousand eight hundred and ninety-five, at which said last-mentioned period of time, the said Charles E. Thompson shall, if living, be entitled to demand, take, have, and receive the whole of said estate, or the avails thereof, so to be held by my said executrix as aforesaid, together with all the accumulations of income and interest thereon, should there be or remain any unpaid, thereon, at which said last-mentioned time, my said executrix is directed to transfer and pay over to the said Charles E. Thompson the whole of said estate or the avails thereof, so held by my said executrix in trust, as aforesaid, together with the accumulations, income and interest thereof.”
    The plaintiff sought in this action to compel the trustee to pay to her, out of the income payable to her husband, the amount allowed her in the divorce suit. The defendant Charles Thompson appeared by attorney, but interposed no answer. From the judgment in favor of the plaintiff the trustee appealed.

      J. K. Long, for Mary T. McConihe, the appellant.

      Merritt dé JSycm, for the plaintiff, respondent.

      JS. G. Jennyss, for the defendant Charles Thompson, respondent.
   Landon, J.:

The appellant has no grievance. She is simply directed to pay a portion of the income of the trust estate in her hands to the plaintiff, the wife of the defendant Charles Thompson, instead of paying it to Thompson himself. The sum directed to be paid is the alimony and allowance awarded by the judgment obtained in an action for divorce by the plaintiff against her husband, Charles Thompson. In this action the defendant Charles Thompson appears by his attorney and suffers default. The appellant must pay the income of the trust estate,'and this judgment protects her in paying a portion of it to the plaintiff. The only persons who can claim that they are not bound by this judgment are the judgment-creditors of Charles Thompson. The trial court held, and, we think, properly, that the trust created by the will of Gilbert G. Thompson, for the support of Charles Thompson, extends .also to the support of his wife and child, and that a judicial provision for their support out of the income is a proper application of a portion of the income, and paramount to the rights of judgment-creditors. (Tolles v. Wood, 99 N. Y., 616.) Should a judgment-creditor hereafter attempt to impeach such provision, the court would extend the necessary protection to the appellant as trustee.

We think the judgment right, and that it should be affirmed.

Judgment affirmed, costs of both parties payable out of the fund.

Learned, P. J., and Ingalls, J., concurred.

Judgment affirmed, with costs to both parties out of the fund.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE TROY UNION RAILROAD COMPANY, Respondent, v. EDWARD CARTER and Others, Assessors of the City of Troy, and JOHN D. SPICER, Comptroller of the City of Troy, Appellants. THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE TROY UNION RAILROAD COMPANY, Respondent, v. EDWARD CARTER and Others, Assessors of the City of Troy, and WILLIAM J. ROCHE, Comptroller of the City of Troy, Appellants.

      Exemption of Troy Union Railroad Company from taxation, under chapter 462 of 1853, is constitutional — writ of certiorari, under chapter 269 of 1880, to whom issued —chapter 462 0/1853 not affected by diopter 201 o/1885.
    The exemption from taxation, given to the Troy Union Railroad Company by chapter 462 of the Laws of 1853, prescribing the amount at which the Troy Union Railroad Company is to be assesssed, and practically exempting all property of that company beyond such amount from taxation, is within the powers of the legislature.
    Chapter 201 of the Laws of 1885, prescribing the form of oath to be attached to assessment-iolls by the assessors, does not change their obligation in that respect, which has always been to assess property at its value; nor did it affect or repeal chapter 462 of the Laws of 1858.
    In proceedings, instituted under chapter 269 of the Laws o{ 1880, to review an assessment made for the purposes of taxation, a writ of certiorari may properly issue and be directed to the assessors who made the assessment, and also to the comptroller of tiie city, in whose possession the assessment-roll is.

      People ex rel. Bay State v. McLean (80 N. Y., 254) distinguished.
    Appeal by the defendants from a judgment recovered at a Special Term of tlie Supreme Court, held at the city of Hudson on the 14th. day of July,' 1888, and entered in the office of the clerk of the county of Rensselaer on the 17th day of January, 1889, reducing the assessment made of the property of the relator to $30,000.
    This proceeding was taken under the provisions of chapter 269 of the Laws of 1880, to review and reduce the valuation placed upon the property of the relator by the assessors of the city of Troy, and entered on the assessment-rolls for the purposes of taxation for the year 1886, on which roll the said property of the relator was valued and assessed for the purposes of taxation at the aggregate sum of $783,984.
    By chapter 462 of the Laws of 1853, it is provided that “ for the purposes of taxation in the city of Troy and in the county of Rensselaer the property of the Troy Union Railroad Company shall be estimated and assessed as the common council of said city of Troy, by its contract with said company, dated December 3, 1852, agreed that the same should be, at the amount of the capital stock of said company, and no more.” (
    The contract referred to in such act of 1853 provided, among other things, as follows: “ The party of the first part agrees that the common council of the city of Troyjshall join in an application to the legislature of the State of New York, that the Troy Union Railroad Company be exempt from taxation upon an amount exceeding the present amount of its capital stock; * * * and if such law shall not be passed, the common council of the city of Troy shall refund to the Troy Union Railroad Company an amount equal to the city taxes imposed on the Troy Union Railroad Company for any valuation exceeding its present capital stock.” The capital stock of the company was $30,000.

      R. A. Pm-menter, for tbe appellants.

      Eseh Oowen, for tbe respondent.
   Learned, P. J.:

We think that, under chapter 269, Laws of 1880, the writ was properly issued, and that it should not have been quashed either as against the assessors or as against the comptroller. It issued against the assessors because it was to review their action; against the comptroller because the roll was in his possession. The case of People ex rel. Bay State v. McLean et al. (80 N. Y., 254), cited by the defendants, was decided in February, 1880, and did not arise under this act. So of many other eases cited by defendants. The case of People ex rel. Porter v. Tompkins (40 Hun, 228) could not have been a case under this act, as will appear on noticing the time when the certiora/ri issued.

Nor is the return to a certior-a/ri under this act conclusive. The object of the act is to have a review, and that, too, on further evidence if necessary. These objections of the defendants have been settled against' them in many cases. We think that there is nothing in the change made by chapter 201, Laws 1885, of the form of oath to be attached to the assessment-roll which affects the question iu this case. The assessors had always been required to assess property at its value. And that change in form of the oath did not change their obligation in this respect. Nor can that act be understood to effect a change in, or to repeal, the law upon which the -relator relies, viz., chapter 462, Laws of 1853. The only- question here is as to the validity of that law and of the alleged contracts to carry out which it was passed.

It is not contended by the relator on this argument that that part of the act which affects the Rensselaer and Saratoga bridge'is valid, because the relator admits that that subject is not expressed in the title. “ If a local act contains a subject which is properly expressed in the title, it is valid as to that subject, although invalid as to a subject not expressed.” (In re Van Antwerp, 56 N. Y., at page 267; People ex rel City of Rochester v. Briggs, 50 id., 553.)

As to the taxation of this Troy Union Railroad Company, that subject is expressed in the title of the act in question sufficiently, so that the act is not unconstitutional in that view. It appears that this act was passed as the result of an agreement between the city of Troy and those railroads who were to form this new company for the purpose of constructing a Union depot. Whether it is wise for the legislature to pass acts exempting certain property from taxation is not for us to say. This has often been done in respect to benevolent institutions and in respect to the property of clergymen. If property of benevolent institutions may be excepted, so may the property of other institutions of a different character.

While this act has the form of fixing the amount at which the company is to be assessed, it is practically an act that all property of the company beyond that amount shall be exempt. This may be unjust to other persons, natural and artificial, in the State, but the injustice, if any, is one that we cannot redress. The power is in the legislature. (Humphrey v. Pegues, 83 U. S. [16 Wall.], 244.)

The order should be affirmed, with fifty dollars costs and disbursements against the appellants.

Landon and Ingalls, JJ., concurred.

Judgment affirmed, with fifty dollars costs and disbursements.


author: By the Court :

text:
    JOHN H. EISENLORD, Appellant, v. DAVID H. CLUM, CATHARINE L. EISENLORD and Others, Respondents.

      Stay of proceedings because of non-payment of costs — not applicable to costs on cm appeal from an order granting a new trial — rights ofapan'ty entitled to costs, under section 779 of the Code of Civil Procedure, to a dismissal of the complaint.

    The provisions oí section 779 of the Code of Civil Procedure, to the effect that “where costs of a motion, or any other sum of money directed by an order to be paid,” are not paid, subsequent proceedings shall be stayed, do not cover or apply to the costs of an appeal from an order granting a new trial on the merits.
    A defendant, who has noticed a cause for trial, may bring it on for trial and take a dismissal of the complaint if the plaintiff is not ready to proceed; but where the plaintiff is ready and anxious to proceed, and the defendant, because of the failure of the plaintiff to pay certain costs awarded against him, insists that tlie plaintiff shall not proceed, he cannot, under such circumstances, take a dismissal of the complaint. All that he would be entitled to under such circumstances would be to a stay of proceedings.
    Appeal by tlie plaintiff from an order, made at tlie Montgomery Circuit, and entered in the clerk’s office of the county of Montgomery on April 9, .1889, dismissing the plaintiff’s complaint.
    The action was in ejectment, on a former i^ial of which a verdict had been rendered for the plaintiff, a motion by the defendants on the minutes for a new trial granted, and the verdict set aside. The plaintiff appealed' to the General Term from such order granting a new trial, where the order was affirmed, with costs to tlie defendants. The case was noticed for trial by the defendants for the Montgomery Circuit, of February, 1889, at which counsel appeared on both sides, and the defendants’ counsel, although the plaintiff’s counsel was ready to,proceed, objected to any proceedings being taken on the part of the plaintiff for the reason that the costs, awarded to the defendants on appeal to the General Term from the order granting a new trial in the action, had not been paid, and claiming that until such payment the proceedings on the part of the plaintiff were stayed under the provisions of section 779 of the Code of Civil Procedure. The court directed the entry of an order, dismissing the complaint, providing/ however, that if the plaintiff should pay the costs on or before the following Thursday the dismissal should be set aside and the case be restored to the calendar.

      A. J. Abbott, for the appellant.

      D. 8. Morrel, for the respondents.
   By the Court :

Section FT9 of the Code of Civil Procedure speaks of “ costs of a motion or any other sum of money.” This language does not apply to the costs of an appeal from an order granting a new trial on the merits. The costs granted on such an appeal are not “ costs of a motion or a sum of money directed by an order to be paid.” Therefore, the Code did not stay plaintiff’s proceedings in this case.

Even if there had been a stay of plaintiff’s proceedings under this section, still the defendants’ practice was wrong. Under section 980, the defendants having noticed the cause, might bring it to trial and might take a dismissal of the complaint if the plaintiff was not ready to proceed. But here vthe plaintiff was ready and anxious to proceed, and the defendants insisted the plaintiff should not proceed; under such circumstances, it was unreasonable to permit defendants to take a dismissal of the complaint. If there had been some motion costs which remained unpaid, and the defendants had insisted on the benefit of section 779, all they should have had would have been a mere stay of proceedings. The defendants were blowing hot and blowing cold — insisting under their notice of trial that plaintiff should proceed, and under the non-payment of the costs that he should not.

The order is reversed, with ten dollars costs and printing disbursements.

Present — Learned, P. J., Landon and Ingalls, JJ.

Order reversed, with ten dollars costs and printing disbursements.


author: Van Brunt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE WASHBURN, Relator, v. SAMUEL B. FRENCH and Others, Commissioners Composing the Board of Police of the Police Department of the City of New York.

      Veterans of the wan' — dismissal of, from the New York police force, simply on account of age, is improper — chapter 29 of 1886 relates to veterans in office as well as to applicants for office.

    The relator was appointed a patrolman by the board of police commissioners of the city of New York in the year 1856. In 1862 he entered the army and served during the war, and to its close in 1865, when he was honorably discharged. In 1865 he was again appointed a patrolman, and continued to be a member of the force until June, 1887, when he had attained to the rank of captain. On the last-mentioned date he was dismissed and placed on the roll of the police pension fund for the reason that he had reached the age of sixty years, such dismissal being made under the authority of section 2 of chapter 364 of the Laws of 1885.

      Reid, that, under the provision of chapter 29 of 1886, providing that a veteran of the war shall not be disqualified "for holding any position on account of his age, or by reason of any physical disability, provided that such age or disability does not render him incompetent to perform the duties of the position, a dismissal of the relator from the police force simply upon the ground of his age was improper.
    The provisions of the act (chap. 29 of the Laws of 1886) relate to the qualifications of veterans of the war actually in office as well as to those of such veterans who are applicants for office.

      Certiorari to review proceedings of the board of police commissioners, retiring the relator from service and placing him on the pension-roll.

      Louis J. Qra/nt, for the relator.

      Drnid J. Dean, for the respondent.
   Van Brunt, P. J.:

The relator was appointed a patrolman in 1856. In 1862 he entered the army and served during the 'war to its close in 1865, when he was honorably discharged. Thereafter, in 1865, he was again appointed patrolman, and continued to be a member of the force until June, 1881, in the meantime having attained the rank of captain. Ou the last-mentioned day he was dismissed and placed on the roll of the police pension fund, because he had then reached the age of sixty years, the authority to make such dismissal being claimed from the provisions of section 2 of chapter 364 of the Laws of 1885. The question now brought up for review is whether the commissioners had the authority to discharge the relator, he being a veteran soldier and honorably discharged from the service of the United States, because he had reached the age of sixty years.

Section 2 of chapter 364 of the Laws of 1885 provides that any member of the police force who shall have reached the age of sixty years shall, by resolution adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund. It is clear that, under this legislation, the commissioners had not only the power, but were required to make the removal upon the arrival of the relator at the age of sixty years.

It is, however, urged that the relator was relieved from the provision of the act of 1885, above quoted, because of chapter 29 of the Laws of 1886, which provided that chapter 410 of the Laws of 1882, an act to regulate and improve the civil service of the State of New York, should be amended by requiring the civil service commissioners to report names for appointment of veterans of the war, and that such persons shall be preferred for appointment for positions in the civil service over all other persons, though graded lower than others so examined and reported, provided their qualifications and fitness shall have been ascertained as provided in the act. And it was further provided that the person thus preferred should not be disqualified from holding any position on account of his age or by reason of any physical disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for.

In answer to this claim it is urged, upon the part of the respondent, that the provisions of the act of 1886 applied only to the applicants for appointment to the office, and have no bearing upon the qualifications of those actually in office. It is a familiar rule, in the construction of statutory and constitutional law, that the intention of the law-making power shall be ascertained from the language of the act, from the nature of the subject-matter as to which the legislation is enacted, and the objects to be attained by such legislation, and that the mere language of the act cannot be permitted to override such intention where it is clearly to be gathered from the act under construction and the surrounding circumstances. Now, it is apparent, from a reading of the act of 1886, that it was the intention to relieve veterans of the late war from the disabilities which other persons who had not the same claim to recognition were resting under in respect to holding office, and, therefore, it provided that such persons should not be disqualified from holding any position in the civil service of the State on account of his age or by reason of any disability, providing such- disability did not render him incompetent to perform the duties of his office.

It certainly cannot be presumed to have been the intention of the legislature to place an applicant for an office in a better position than a veteran who had already been appointed. In other words, that a veteran whose qualifications were not sufficient of themselves to require his appointment under the civil service act because there were others who might be better qualified, should be preferred over a veteran who had been appointed because his qualifications alone compelled his appointment. It cannot be presumed that the legislature intended to work such an injustice, and if a construction can be adopted which gives force to the whole act and to an intention which does not work such an injustice, such a construction must necessarily be adopted.

It seems to us clear that the intention was to relieve veterans from the disqualification of age, and that in making use of the words “a person thus preferred” in the act of 1886, they undoubtedly intended that such person should not be disqualified from holding any position in the civil service on account of his age, not merely after he had actually been thus preferred for the purpose of appointment, but that he would, under the terms of the act, be entitled to that preference, if he could claim such preference, in case he was an applicant for appointment.

If this is not the true construction, then a member of the police force, who is removed on account of age, would have a right to apply, under the act, for reappointment, and the police commissioners would be required to reappoint him to the position from which he had been removed on account of age. This, of course, would, refer but to patrolmen, and would not necessarily refer to the higher ranks of the service, which are required to be drawn from the lower positions of the force. Such an anomalous coudition of affairs was never intended by the legislature. It is clear that it was intended to relieve veterans from the disqualification of age, and as a consequence the power of the commissioners to remove a veteran because he has reached the age of sixty was thereby repealed; and the relator having been removed for this cause, and being a veteran, is entitled to be reinstated.

The proceedings should be reversed and the relator reinstated, with costs.

Cullen, J., concurred.

Proceedings reversed and relator reinstated, with costs.


author: Yan Brunt, P. J.:

text:
    MILN P. PALMER, Respondent, v. MARY A. DUNHAM and Others, Appellants.

      Will — construction of a provision giving a remainder over to the next of kin of such beneficiaries, entitled, to estates in remainder, as should die — effect of a death before that of the testatrix.

    A testatrix, who made her will in 1876 and died in 1877, gave to her executors the sum of $20,000, to invest and pay over the net interest and income thereof to her niece, Mary A. Dunham, for and during her natural life, and upon her death to pay over such principal sum to her lawful issue, share and share alike. The will further provided: “ In case of the death of any of the beneficiaries, or persons entitled to a share in the investment herein directed to be made, before the time limited for the payment thereof, my will is that the same be paid over to their next of kin as, according to the statute of distribution, their personal estates would be divided and distributed.”
    Mary A. Dunham had three sons, David H. Dunham, who is now living; John P. Dunham, who died in 1886; Edgar A. Dunham, who died before the making of the will. John A. Dunham left him surviving three children, and Edgar A. Dunham left him surviving a daughter, Annie P. Dunham.

      Held, that the two sons of Mary A. Dunham, living at the time of the death of the testatrix, took vested estates in remainder in the property which was left to their mother for life, and that, upon the death of either of them before their mother, his share descended to his next of kin, pursuant to the provisions of the last paragraph of the will above stated, and that the provision of such paragraph in favor of the next of kin of a deceased beneficiary had no application whatever’ to the case of the next of kin of the child, Edgar A. Dunham, who died before the making of the will in question, and that Annie P. Dunham took nothing thereunder.
    Appeal by several of the defendants from portions of the judgment herein, which was entered in the office of the clerk of the county of New York on the 23d day of July, 1888.
    The appeal by the defendant Annie P. Dunham was from said judgment, so far as the same sustains the report of the referee as to his tenth, eleventh and twelfth conclusions of law therein recited, and overrules the exceptions taken to said report by this defendant, and, further, from the following provisions of said judgment, to wit:
    “ And it is further ordered, adjudged and decreed that defendant Annie P. Dunham is not entitled to any portion of the remainder of the trust fund, the income of which was to be paid to Mary A. Dunham, and which was created by the first subdivision of the second clause of the will of the said Frances B. Hegeman, deceased;
      but tbe principal of tbe said trust is to. be divided equally between defendant David H. Dunham, who is to take one-half thereof, and the defendants Maud A. Dunham, Alden B. Dunham and Edgar A. Dunham, who will together take the other half thereof; and that, as soon as he shall qualify, the said Miln P. Palmer, hereby appointed trustee, pay to defendant David H. Dunham one-half part of the principal of said trust fund, together with the net income thereof, since the death of said Mary A. Dunham, and that he pay to defendants Maud A. Dunham, Alden B. Dunham and Edgar A. Dunham each one-sixtli part of the principal of said trust fund, together with the net income thereof since the death of the said Mary A. Dunham.
    “And it is further ordered, adjudged and decreed that, under and by virtue of the third clause of said last will and testament, the said defendant David H. Dunham is entitled to one forty-sixth part of the residuary estate, and the defendants Maud A. Dunham, Alden B. Dunham and Edgar A. Dunham are together entitled to one forty-sixth part of the said residuary estate; and that as soon as he shall qualify, the said Miln P. Palmer, hereby appointed trustee, pay one forty-sixth part of the residuary estate, with the net income thereon since the death of said Mary A. Dun-ham, to defendant David H. Dunham, and another forty-sixth part of the residuary estate, with the net income thereof since the death of Mary A. Dunham, to defendants Maud A. Dunham, Alden B. Dunham and Edgar A. Dunham, share and share alike.”

      Sidney B. Stucurt, for Annie P. Dunham, appellant.

      A. P. & W. Mem, for the plaintiff, respondent.

      Joseph S. Wood, for David H. Dunham, defendant, Respondent.

      Abel E. Blaekmar, for the guardian ad litem of the infant defendants, respondents.
   Yan Brunt, P. J.:

Frances B. Hegeman made her will in 1876 and died in 1877. Among the nieces which she left surviving was Mary A. Dunham, mentioned in the will, who died on the 30th of July, 1887. Mary A. Dunham had three sons, David H. Dunham, who is now living, John P. Dunham, who died in 1886, and Edgar A. Dunham, who died in. 1871, before tbe making of tbe will in question. Edgar A. Dunham left him suviving a daughter, the appellant, Annie P. Dun-ham, and John P. Dunham left him surviving three children, Maud A. Dunham, Alden P. Dunham and Edgar A. Dunham, Jr. By the second clause of the testatrix’ will she provided as follows :

Second. I give, devise and bequeath to my executors hereinafter named, and the survivor of them, so much of my estate in trust, nevertheless, as will enable them to make the following investments and to pay the legacies hereinafter named, that is to say :
First. To invest the sum of twenty thousand dollars and pay over the net interest and income thereof to my niece, Mary A. Dunham, for and during her natural life, and upon her death to pay over said principal sum to her lawful issue, share and share alike.”

And then follow twenty-four other provisions xor investments or payment of legacies, and after a residuary clause, by the fourth clause of the will the testatrix provides that “incase of the death of any of the beneficiaries or persons entitled to share in the investments herein directed to be made before the time limited for the payment thereof, my will is that the same be paid over to their next of kin, as according to the statute of distributions their personal i estates would be divided and distributed.”

The questions presented are: First, who were meant by the lawful issue of Mary A. Dunham in the second clause of the will; and, second, what was meant by the fourth clause of the will above cited ? Did it mean that in case of the death, prior to the making' of the will, pf any person who would have been comprehended; within the term lawful issue, as used in said will, had they survived the testatrix, the next of kin of such deceased person should take the' share which such person would have become entitled to had he been living at the death of the testatrix.

It is conceded that, by the decision in the case of Palmer v. Horn (84 N. Y., 516), an interpretation has been put ujxon the words “ lawful issue,” as used in the will in question, and that it was held, in that case, that the word “issue” was intended to mean children. It is not necessary to discuss this question, because it seéms to have been determined by the decision in question. The second clause of the will, therefore, is to be read as though it had provided for the investment of the $20,000, the payment of the net interest and income thereof, to Mary A. Dunham during her natural life, and upon her death to pay over the principal to her lawful chilldren, share and share like. It seems to be clear from this language that the children of Mary A. Dunham took a vested remainder in this $20,000. A brief reference to the statutes defining estates seems to place this beyond doubt.

Section 7, page 722 of 1 Revised Statutes, provides as follows: Estates, as respects the time of their enjoyment, are divided into estates in possession and estates in expectancy.

Section 8 : An estate in possession is where the owner has an immediate right to the possession of the land. An estate in expectancy is where the right to the possession is postponed to a future period.

The children of Mary A. Dunham, therefore, had an estate in expectancy, the right of possession being postponed until her death.

Section 9: Estates in expectancy are divided into (1) estates commencing at a future day, denominated future estates, and (2) reversions.

Section 10: A future estáte is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time.

The estate of the children of Mary A. Dunham, therefore, was a future estate, limited to commence upon the termination of a precedent estate, namely, that in which Mary A. Dunham was interested, created at the same time.

Section 11: Where a future estate is dependent on a precedent estate, it may be termed a remainder, and may be created and transferred by that name.

Section 18 : Future estates are either vested or contingent. They are vested, when there is a person in being, who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain.

The estate, therefore, of the remaindermen, under the clause in question, was vested because there were persons in being who would have an immediate right to the possession of the estate upon the death of Mary A. Dunham; namely, her children or lawful issue, who were surviving at the time'of the death of the testatrix.

By section 2 (p. 773) of the Revised Statutes, it is provided that the limitation of future or contingent interests in personal property shall be subject to the rules prescribed in relation to future estates in lands. Therefore, under the definition of vested remainders as contained in the statutes, upon the death of the testatrix, the children of Mary A. Dunham then living took a vested remainder in this sum to be invested for the benefit of their mother during her life, which, under the statute, they had the power to convey or to will. Section 35 of 1 Revised Statutes, 725, provides: Expectant estates are descendible, devisable and alienable in the same manner as estates in possession. Now, under this condition of affairs, what did the testatrix mean by the provision contained in the fourth clause of the will, namely, “ that in case of the death of any of the beneficiaries or persons entitled to share in the investments herein directed to be made before the time limited for the payment thereof, my will is that the same be paid over to their next of kin, as, according to the statute of distributions, their personal estates would be divided and distributed.”

The children of Mary A. Dunham, as has been seen, becoming vested with a remainder upon the death of the testatrix, were beneficiaries under the will; they were persons entitled to share in the investment therein directed to be made before the time limited for the payment thereof to them, and they were the persons who are meant by the fourth clause. And, apparently, in order to prevent the alienation of these vested remainders or the devising of such remainders away from the persons who would take under the statute of distributions, it was provided by the will that, in case of their death before they were entitled to possession, their share should be paid over to their next of kin, according to the statute of distributions. It is evident that this is what the testatrix meant, to prevent the alienation of these expectant estates, and nothing-less and nothing more. And although it is claimed that inapt and fn artificial language has been used, yet it seems to us that she has defined, with peculiar accuracy, the situation of these remainder-men, viz., that they were beneficiaries under the will, as they were; that they were the persons entitled to share in the investment therein directed to be made, and. that they had acquired an interest therein before the time limited for the payment thereof, namely, the termination of the precedent estate. It, therefore, follows that the two children surviving at the time of the death of the testatrix, having taken vested remainders in the provision that was made for their mother during her life, upon the death of either of them before their mother, his share is descendible to his next of kin, pursuant to the provisions of the fourth clause, and that the fourth clause has no application whatever to the case of a child dying before the making of the will in question.

That part of the judgment appealed from should be affirmed, with costs to be paid out of the estate.

Macomber and Bartlett, JJ., concurred.

The part of judgment appealed from affirmed, with costs, to be paid out of the fund.


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    FRANK P. CRASTO, Appellant, v. RICHARD WHITE, Respondent.

      Defense — when it distinctly refers to apan'ticular cause of action under section 507 of the Gode of Givil Procedure — complaint for services in procuring a loan, when sufficient — distinction between a contract to procun'e a loan upon, amd to secure a purchaser of, real property — form of interlocutory judgment — Gode of Givil Procedure, sec. 3228.
    Where a separate defense in an answer contains allegations and denials, which can by no possibility refer to any other than a particular cause of action set out in the complaint, the defense distinctly refers, within the meaning of section 507 of the Code of Civil Procedure, to that cause of action.
    A complaint for services rendered, in procuring a loan for defendant upon the security of his real estate, which alleges that the plaintiff was employed to procure a loan upon defendant’s property, that he secured an offer from a company to loan the sum required, which offer was accepted, is not sufficient to justify a recovery.
    There is a distinction between a contract to procure a loan upon, and a contract to secure a purchaser of, real property, which exists in the fact that if the purchaser, after contract signed, improperly refuses to take the property, he can be compelled to complete his contract, whereas there is no way in which a party can compel another to make a loan.

      A defendant, who succeeds as to any of the causes of action set forth in the complaint, is entitled, under section 8228 of the Code of Civil Procedure, to costs, as against the plaintiff, and an interlocutory judgment directing a judgment for the defendant on the cause of action as to which he succeeds, so that upon the entry of the final judgment in the action he will be entitled to recover costs as to that cause of action, is proper.
    Appeal by the plaintiff from an interlocutory judgment overruling tlie plaintiff’s demurrer interposed to the fourth defense set forth in defendant’s amended answer, entered in the office of the clerk of .the county of New York January 26, 1889, and, also, from the order directing the entry of said judgment.
    The action was brought to recover for services rendered in procuring a loan upon and in perfecting defendant’s title to certain real property.
    The fourth defense, which was demurred to, was as follows: And for a further and fourth defense, defendant says he employed plaintiff and his firm to procure a loan for defendant on the lots mentioned in the said complaint, and the houses thereon, of $32,000, at interest of five per cent per annum, and plaintiff and his firm agreed to procure such loan for defendant. That defendant agreed, when such loan was so procured, defendant would pay them the legal brokerage therefor ; and he further agreed that he owned said' lots in fee simple, and that upon procuring such loan he would, to secure the payment thereof and interest, give his bond and mortgage the same to the lender of that sum by a fee simple mortgage of said lots, free from all incumbrances, executed by himself and wife, and that defendant never made any other agreement with plaintiff or his firm, and defendant says he performed his part of said agreement and that plaintiff and his firm never performed his or their said agreement; that they never procured any loan on said lots for defendant whatever; that the United States Life Insurance Company of the City of New York refused to make any loan on said lots whatever, although the defendant offered to give it his bond to secure the repayment of that' sum of $32,000 and interest, and his and his wife’s mortgage in fee simple of said lots, free of all incumbrances, further to secure the payment of that sum and interest; and defendant says that when he made said agreement, and over since, he owned and now owns said lots in fee simple; and this defendant for a fifth defense, further answering, denies all the allegations and statements of the said complaint set forth in the second cause of action and containing five sections or paragraphs.

      W. E. Benjamin, for the appellant.

      Leopold Sondheim, for the respondent.
   Yan Brunt, P. J.:

The plaintiff, in his complaint, sets up two causes of action: First. For services in procuring a loan for defendant upon his real estate; and, second, for services in endeavoring to perfect defendant’s title to the lots in question. The defendant put in an answer by which he denied various allegations contained in the complaint as to the first cause of action, and, for a further and fourth defense, alleged the employment of the plaintiff and his firm to procure a loan for the defendant upon certain premises owned by him, for the procurement of which the defendant agreed to pay him the legal brokerage. In this defense it is alleged that the defendant performed his part of said agreement, and that the plaintiff and his firm never performed their part; that they never procured the loan although the defendant offered to give his bond to secure the payment of the sum to be loaned, and, also a mortgage in fee 'simple upon the premises mentioned, which were free from all incumbrances, and which he owned and now owns in fee simple.

The principal ground relied upon to sustain the demurrer to this defense is that it is not good as a defense to both causes of action set up in the complaint, and that it does not distinctly refer to the first cause of action as required by section 507 of the Code of Civil Procedure. That section provides that a defendant may set forth in his answer as many defenses or counter-claims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defense or counter-claim must be separately stated and numbered; and, unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer.

It is claimed, because it is not stated to be a defense to the first cause of action 'upon the face of the defense itsejf, that, therefore, it is' bad. We fail to find any such provision contained in the section which has been cited. We suppose that where a separate defense containing allegations and denials, which, can under no possibility refer to any but a particular cause of action set out in the complaint, they distinctly refer to that cause of action and cannot refer to another. This is the condition of the allegations contained in the fourth defense. They can only apply to the first cause of action, and none other. They are utterly foreign to, and have nothing to do with, the second cause of action; and if an allegation or denial can only refer to a particular cause of action in the complaint, we see no reason for saying that the Code is not complied with. If it can by no possibility refer to but one cause of action, it is difficult to see how it could more distinctly refer to the cause of action which it was intended to answer where more than one is set out m the complaint. But there may be urged another objection to the demurrer, namely, that the plaintiff does not state any cause of action in his so-called first cause of action, and this is apparent upon the face of the pleadings. The plaintiff alleges that he and his firm were employed to procure a loan upon the defendant’s property, but he nowhere alleges that such loan was ever procured. He alleges that he had secured an offer from the United States Life Insurance Company, to loan that sum, which offer was accepted. But that is not the contract which he was employed to perform. His employment was to procure a loan, and the procurement and acceptance of the offer was but one of the steps toward the procuring of the loan; and if, without any fault upon the defendant’s part, the loan was not secured in pursuance of that offer, it is clear that the contract has not been complied with.. As has been already stated, there is not a single allegation contained in the first cause of action that there has been a compliance with the contract.

The learned counsel seems to assume that it is well-settled law that where a man performs half of his contract he is entitled to recover compensation for the whole. We do not understand this to be the law, as applicable to the right to recover upon such a contract. He has been probably led astray by being unable to distinguish between a contract to procure a loan and a contract to procure a purchaser, where the purchaser does not subsequently take for some reason. When a broker is employed to procure a purchaser, when he presents to the other a person who is able and willing to contract for the purchase of the property, his duties are fulfilled; and if the party refuses to accept, or after contract signed tlie purchaser improperly refuses to take, it does not affect the right of the broker to his compensation. There his contract was to procure a purchaser able and willing to purchase, and when he presents him his commissions are earned. In the case at bar the contract was to procure a loan, not to procure somebody who said he was willing to make a loan and then refuses to carry out his promise; that was not the contract. The contract was tO' procure a loan ; and if, without any fault upon the part of the defendant, the party who had offered to make the loan refuses to do so, the contract is not fulfilled. There is no way in which a party can compel another to make a loan, the case being entirely different from that of a purchaser of real estate who could be compelled to complete.

The claim that the interlocutory judgment should be reversed as erroneous in directing final judgment for the defendant on the fourth defense is not well founded. If the defendant succeeded as to any of the causes of action set forth in the complaint, he was, by section 3228 of the Code, entitled to costs as against the plaintiff. And, consequently, if the plaintiff did not avail himself of the leave to withdraw his demurrer and pay the costs thereof, the defendant was, by the provisions of the Code, entitled, upon the entry of the final judgment in the action, to costs as to this cause of action, and this is all that the interlocutory judgment gives him. This judgment could not probably be finally entered until the issues as to the other cause of action were tried, but it was entirely correct to give the direction for its entry so that it might be entered when the proper time arrived; The express provision of the interlocutory judgment is that the defendant have judgment upon the demurrer which simply affected the first cause of action, and that was all that was intended to be covered by the judgment in question.

The judgment and order appealed from should be affirmed, with costs, and with leave to the plaintiff to withdraw the demurrer upon payment of the costs below and of this appeal.

Bartlett, J., concurred.

Judgment and order appealed from affirmed, with costs, and with leave to the plaintiff to withdraw the demurrer upon payment of the costs below and of this appeal.


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    CHRISTIAN T. CHRISTENSEN, Appellant, v. THE ILLINOIS AND ST. LOUIS BRIDGE COMPANY and AMOS F. ENO, Respondents.

      Bonds received, from a corporation without any consideration — liability cf the pan’ty receiving them to a judgment-m'editor of the corporation — what must be shown to justify a recovery.

    The property of a railroad corporation, having been sold under a foreclosure of the first mortgage thereon, the amount realized was not sufficient to pay the amount due upon such first mortgage. It appeared, however, that, pending the foreclosure proceedings, the first, second and third mortgage bondholders of the corporation entered into an agreement for reorganization, and the purchaser at the fore closure sale purchased, as the representative of all the parties to the reorganization agreement, and that such reorganization agreement was carried out by the formation of a new corporation, which purchased the property sold under the foreclosure, from the purchaser at such foreclosure sale, and that stock and securities of such new company were issued to the holders of the first, second and third mortgage bonds of the old company according to the terms of the agreement.
    In an action brought by a judgment-creditor of the corporation to recover the amount of the indebtedness of the corporation to him, against a party who had, - without consideration therefor, received second mortgage bonds of the company, and had, under the terms of the reorganization agreement, received stock and securities therefor.

      Held, that the fact that the parties holding securities of the old company entered into an agreement, by which the results of the foreclosure were disposed of in a certain way, did not confer upon the creditors of the old company any right, as against the parties to such agreement, in which neither it nor any of the creditors thereof had any interest.
    That it was necessary, in order to establish a right to recover in such a case, that it should be shown that the defendant, who had received such bonds without consideration, had withdrawn on account thereof something from the funds of the company.
    That proof that one of the coupons upon the bonds had been paid did not raise a presumption that such payment had been made by the company.
    Appeal by tbe plaintiff from a judgment rendered upon a trial at the New York Special Term, dismissing the complaint, and entered in the office of the clerk of the county of New York on the 29th day of March, 1888.

      O. E. Traoy, for the appellant.

      W. Mem, for the respondents.
   Van Brunt, P. J.:

The plaintiff is a judgment-creditor of the Illinois and St. Louis Bridge Company, upon whose judgment an execution has been returned unsatisfied. He seeks by' this action to- enforce an alleged liability of the- defendant Eno, who, as a stockholder of that company, received $1,000 of its stock, without consideration, and also $10,000 of its second mortgage bonds, likewise without consideration, which stock and bonds the defendant Eno has disposed of.

This action has been previously tried and judgment rendered in favor of the plaintiff against the defendant Eno, which judgment was affirmed upon appeal at the General Term; but, upon further appeal to the Court of Appeals, the judgment was reversed and a new trial ordered. The court held that the plaintiff had failed to make out a right to recover against the defendant Eno on account of his receipt of stock of the company; and in respect to the bonds the court said as follows: The question as to the right of the plaintiff to compel the defendant to account for the sum realized by him on the sale of the bonds, is affected by the fatal difficulty that the defendant has received nothing from the corporation except its promise to pay, which has never been performed. The defendant has withdrawn nothing from the funds of the company on account of the bonds (unless it may be a sum represented by a single interest coupon), and creditors have not been prejudiced by the transaction. It it alleged, and it was offered to be proved, that the property of the company had been sold on the foreclosure of the first mortgage. It is unnecessary to consider what the rights or liabilities of the defendant would be in respect to the bonds as between himself and other creditors of the corporation on a distribution of assets, or if it had appeared that the corporation had paid the bonds issued to the defendant. The situation in either of these aspects is- not presented. This is not a case of following assets of a corporation wrongfully transferred. The defendant has received none of the funds or assets of the company available to creditors. The loss on the bonds falls on those who have purchased them, relying on the credit of the corporation. The situation of the general creditors has not, so far as appears, been affected by the fact that the company received nothing for the bonds.”

It is claimed that, -upon the new trial, the objections which the court raised to the right of the plaintiff to recover have been removed by new evidence, namely, that the defendant has collected from the company one interest coupon amounting to $350, and that the mortgage securing these bonds has been foreclosed, and that under and by virtue of the agreement for reorganization, made between the holders of said bonds and others, the mortgaged premises were bid in and turned over to a new company, upon condition of its issuing new securities to the holders of said bonds, and that the defendant or his assigns received such new securities as were allotted to them.

Upon an examination of the evidence, however, we fail to find that there has been any change made which tends in any way to remove the difficulties which existed at the time this case was previously before the Court of Appeals. The objection that the defendant has withdrawn nothing from the funds of the company on account of the bonds has not been met by any proof in regard to the payment of the interest coupon, because there is no evidence whatever, so far as we have been able to discover, showing that that coupon was paid by the company. It is claimed that, from the payment of the coupon, a presumption of payment by the company arises, but where it is sought to impose a liability by reason of the receipt of this payment, because of the fact of its having come from a certain source, it is necessary for the plaintiff to establish that it came from that source and not rest his case upon barren presumption.

In order to fasten this obligation upon the defendant, it was necessary to show that the defendant had withdrawn- something from the funds of the company on account of the bonds, and not by simply showing that a coupon had been paid without proving by whom it had been paid. It is further claimed that it was proved that the defendant had withdrawn something from the funds of the company because the mortgage securing those bonds has been foreclosed, and that under the reorganization agreement between the holders of all the bonds of the company a new company was organized and the defendant received some of the stock of that company. A brief consideration of the circumstances of the foreclosure will show that, by reason thereof, neither the defendant nor his assigns received any of the funds of the company from whom he had received the bonds.

It appears, from the decree of foreclosure and the reorganization agreement, that there were two sets of mortgage bonds issued by the bridge company (the bonds in question which the defendant received being second-mortgage bonds of that company), and that, by the decree of foreclosure and sale, it was adjudged that there were 4,000 of the first-mortgage bonds outstanding, upon which there was due, at the date of the decree, the sum of $4,096,511.83, and that there were 2,000 of the second-mortgage bonds outstanding, upon which there was due $2,593,255.88, and that the foreclosure proceedings were for the foreclosure of the mortgages given to secure these two sets of bonds. It was further provided by the decree that the property should be sold, and that the purchaser should pay certain sums, in cash, upon the confirmation of the sale, and that the balance might be paid in first-mortgage bonds, provided the amount of the bid of the purchaser did not exceed the entire debt so found to be due on the first mortgage and the amount of cash to be paid; but if the bid of the purchaser did exceed that amount, the decree provided that the purchaser might, for the residue of his bid, turn in second-mortgage bonds in a manner similar to that provided for the first-mortgage bonds. Upon the sale the amount bid for the property did not equal the amount due upon the first-mortgage bonds, and the property was conveyed to the purchaser upon the receipt of the amount of his bid, and no part whatever of the purchase-price went towards the redemption of, or payment in part of, the money found to be due upon the second-mortgage bonds. Therefore no part of the property of the Illinois and St. Louis Bridge Company was devoted, by means of this foreclosure, to the payment of any obligation arising upon these second-mortgage bonds.

Pending these foreclosure proceedings the first, second and third mortgage bondholders entered into an agreement for reorganization, and the purchaser at the foreclosure sale purchased as the representative of all the parties to this reorganization agreement; and such reorganization agreement was carried out by the formation of a new corporation, which purchased the property sold under the foreclosure from the purchaser at such foreclosure sale, and the stock and seeurities of such new company were issued to the holders of the first, second and third mortgage bonds of the old company according to the terms of this agreement.

By this proceeding it is difficult to see how the second-mortgage bondholders of the old company have withdrawn anything from the funds of the old company on account of the bonds. The foreclosure did not realize enough to pay the first-mortgage bonds. The purchase-price upon such sale was paid by the turning in of such first mortgage bonds. The holders of the second-mortgage bonds received no dividend upon their bonds from the price realized upon the foreclosure sale. All that they realized was what was given to them of the securities issued by the new company to whom the property of the old company was conveyed. At the time of this conveyance the old company had no interest in the property and no claim upon it. All the rights of the old company had been foreclosed, and none but the first-mortgage bondholders had received any benefit whatever from the securities of the old company which they held. If the parties holding securities of the old company entered into an agreement by which the results of the foreclosure were .disposed of in a certain way, the creditors of the old company had nothing to do with this. If they desired to obtain possession of the property of the old company under this foreclosure, they should have bid at the sale, and certainly as long as there were no proceeds of the property of the old company arising from the foreclosure which could be applied toward the payment of any of those second-mortgage bonds, their existence has not operated as any disadvantage to the creditors of the old company; and the holders of such bonds cannot be said to have withdrawn anything from the funds of such company on account of the bonds. ~We are, therefore, of the opinion that there is no change made by the evidence, in the legal aspects of the ease, from that which existed at the time it was previously decided by the Court of Appeals, and that the learned court below was right in dismissing the complaint.

The judgment appealed from should be affirmed, with costs.

Macomber and Bartlett, JJ., concurred.

Judgment affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALEXANDER SHALER v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK.

      Bemoval from office by the mayor of New Yoi'k — grounds thereof— he is not precluded from so doing, where the act complained of is a crime, until a criminal cormction thereof.

    Tlie provisions of section 108 of chapter 410 of the Laws of 1882, the New York consolidation act, providing for the removal by the mayor, for cause, of the heads of all the departments of the city government, subject to the approval of the governor, authorize the removal of the president of the board of health of that city for a violation of the provision of the consolidation act, that no head of a department shall be interested in the purchase of any real estate taken by the corporation, and shall, on conviction thereof, forfeit his office and be punished as for a misdemeanor.
    The mere fact that an officer guilty of such an offense thereby subjects himself to an additional punishment does not prevent his removal by the mayor for such act.
    The cases holding that if an act is criminal, so that a conviction or acquittal in the court will determine the guilt or innocence of the accused, there must, before the removal of such party from office, be a conviction of the criminal act, but that otherwise there may be a removal without or independent of such conviction, are not dependent upon or decided under statutory provisions such as are contained in the New York consolidation act.

      People ex rel. Fitzpatrick v. French et al. (82 Hun, 113), followed.
    Certiorari to review the action of the mayor of the city of New York in removing the relator from the office of president of the board of health of that city, issued under an order made at the New York Special Term July 5, 1887.

      JSlilrn Boot, for the relator.

      W. L. Twrner, for the respondent.
   Van Brunt, P. J.:

In June, 1886, the relator was president of the board of health, an office established by the consolidation act, relating to the city of New York, and, consequently, an officer of the corporation. While occupying this position the relator became interested' in the purchase of real estate taken by the corporation, and for this cause, amongst others, proceedings were instituted against him and he was removed by the mayor.

In tbe above statement it has not been thought necessary to state the various other charges made against the relator, but to state simply and concisely the proposition upon which it is proposed to determine this application. By section 108 of the consolidation act the heads of all departments * * * may be removed by the mayor for cause, after opportunity to be heard, subject, however, before such removal shall take place, to the approval of the governor, expressed in writing. There is no claim upon the part of the relator that opportunity to be heard was not given, or that the approval of the governor was not obtained. But it is claimed that no sufficient cause was alleged or proved, as against the relator, to authorize the mayor to make the removal. Although, upon this proceeding, the court cannot review the decision upon the merits, yet there must be some evidence upon which to justify removal; and unless some sufficient cause is alleged, and there is some evidence tending to establish the same, then the mayor is without jurisdiction and cannot make the removal. The question, then, is whether the violation of the provision in the consolidation act (§ 59), that no head of department or other officer of the corporation shall be or become directly or indirectly interested in the purchase of any real estate taken by the corporation, constituted a sufficient cause for removal. It is claimed that it did not, because that section provided a punishment in case its provisions should be violated. It provides that if any person shall, during the term for which he was appointed, become so accused, he shall, on conviction thereof, forfeit his office and be punished as for a misdemeanor. It is claimed that this punishment having been provided in the statute for the ofíense, no other proceedings could be taken against the relator under any other provision of the consolidation act.

In this we think there is a clear error. The mayor has power to remove for cause, and any violation of a law which restricts the powers and duties, of heads of departments is a cause for removal. The mere fact that he thereby subjects himself to an additional punishment is no answer to the claim that such act constitutes a cause for removal. Suppose there had been no provision whatever, that upon conviction the officer should forfeit his office and be punished as for a misdemeanor, and there had been simply the prohibition. It is clear that the mayor would have had the power to remove the officer because of this violation of his duty, and simply because another and additional punishment is provided, in case he shall be convicted for having offended against this statutory provision, in no way renders it less a cause f ok the mayor to act.

The violation of the provision of the statute under which the officer holds his office is clearly a ground for the removing power to exercise its authority. That furnishes a cause, no matter what other punishment may follow or other methods of trial are provided to ascertain guilt, for the purpose of the inffiction of this other punishment. It would be depriving the mayor of one of his most important powers. If an officer, in connection with his office, should commit a misdemeanor or a felony, the mayor would be utterly powerless to act, whereas, if the dereliction in duty did not reach the-grade of a crime, his power would be ample, thus-the graver the cause the less would be the power of the mayor.

In view of the provisions of the consolidation act, the offense of the relator was an offense in his capacity as the head of a department, and he, therefore, became amenable to the disciplinary power which the statute had conferred upon the mayor. The cases cited by the learned counsel for the relator, to the effect that if an act is criminal so that a conviction or acquittal in a court will determine the guilt or innocence of a party, there must be a conviction, but otherwise there may be a removal without or independent of a conviction, do not at all depend upon statutory provisions such as are contained in the consolidation act. And this claim seems to be disposed of by the case of People ex rel. Fitzpatrick v. French et al. (32 Hun, 112), where it is distinctly shown that the mere fact that the act which forms the cause for removal is capable of punishment as a criminal offense in no way shelters the official from the exercise of the summary power of the mayor, which was intended to meet every cause which could exist for the removal of a public officer named in the act.

The writ should be dismissed, with costs.

Lawrence, J., concurred.

Writ dismissed, with costs.


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    SIGMUND ROTHSCHILD and Others, Appellants, v. EMANUEL SALOMON and Others, Respondents.

      Assignment — a withdrawal from the firm assets, before an assignment, of money fw the futwre lining expenses of the pa/rties, and a false• entry in the firm books thereof, vitiate the assignment.

    In an action, brought to set aside an assignment for the benefit of creditors on the ground that the assignors had reserved money out of the assets of the firm for the benefit of the individual members thereof, it appeared that the assignment was made on January 33, 1888; that, on January twentieth, a check was given to the wife of one of the assignors for $403, which was charged to household expenses, and on January twenty-first another check was drawn for $3,640, of which $600 was paid to such assignor in cash, $740 to another of the assignors, and $3,300 was delivered to the wife of the first-named assignor, and charged on the books as a loan returned to her. This whole sum of $4,043 was drawn for household uses. There were small bills owing for such purposes to the amount of $1,700, and the balance was intended to be used for living expenses after the making of the assignment. The charge on the books of $3,300, as a loan returned to Mrs. Adler, was false.

      Held, that this entry made on the books of the firm showed that there was an intent to conceal the true facts in regard to the drawing of this money, and a knowledge on the part of the defendants that they had done wrong in making-such an appropriation of the fund.
    That the abstraction of this money, in anticipation of, and in preparation for the assignment, entered into and constituted a fraudulent element in a scheme of which the assignment was a part and parcel, and rendered the whole proceeding void.
    Appeal by tbe plaintiffs from a judgment rendered at tbe New. York Special Term in favor of tbe defendants, and entered in tbe office of tbe clerk of tbe county of New York on tbe 16tb day of February, 1889.

      Elilm Boot, for tbe appellants.

      B. F. Ewistem, for tbe respondents.
   Yan Brunt, P. J.:

Tbis action was brought to set asid.e an assignment for tbe benefit of creditors made by tbe defendants Emanuel Salomon and Henry Adler to tbe defendant Gustav Salomon.

Tbe assignment is not claimed to be void for anything tbat appears upon its face. But the appellants urge that it was part of a fraudulent scheme by these insolvent debtors to cieate debts abroad by means of false representations, and with the proceeds to protect favored creditors at home; and that the assigmnent was part of a device to hinder, delay and defraud creditors in respect to their remedies against the real estate'of the firm, and that the assignment is fraudulent and void, because of the reservation of moneys out of firm assets by the members of the firm. In the disposition of this appeal, the last objection is the only one that it is deemed necessary to consider. The assignment was made on the 23d of January, 1888. On the 20th of January a. check was given to the wife of the defendant Adler for $402, which was charged to household expenses. On the 21st of January another check was drawn for $3,640, of which $600 was paid to the defendant Henry Adler, as cash, and $740 to the defendant Emanuel Salomon, and $2,300 was handed to Mrs. Adler, and charged on the books as a loan returned to her. It appears from the evidence in this case that this whole sum of $4,042 was drawn for household uses; that there were small bills owing to the amount of'$1,700, and that the balance was intended to be used for living expenses after the making of the assignment; and that the charge in the books of the $2,300, as a loan to Mrs. Adler, was a false charge, no such money ever having been lent by her, and nothing being due to her.

It is claimed, upon the part of the defendants, that from these facts no fraudulent intent can be deduced, because they were advised by counsel that they had a right to draw certain sums of money for the purpose of subsistence, prior to the making of the assignment. Whether items to the extent of $4,000 could be sustained upon this basis is a question not necessary to be determined, for the reason that the fact that a false entry was made in the books in reference to this matter shows that there was an intent to cover up and conceal the true facts in regard to the drawing of this money, and a knowledge upon the part of the defendants that they had no right to make this appropriation of the fund.

It is true that frauds, prior to the execution of an assignment, will not always invalidate the assignment. In other words, there may be frauds upon an assignment without there being fraud in the assignment. But where the acts are connected together, and form one scheme, for the purpose of the disposition of the property of the judgment-debtors, then all the acts are to be taken together, and the intent governing the debtors in the doing of one act establishes an intent as to the whole. So, in the case of a voluntary assignment, where there are different .acts which are performed leading up to the assignment, and the assignment is only the culmination of the whole thing and a carrying out of the whole scheme, fraud in any one of these acts will, vitiate the whole proceeding.

In the case at bar, this money was abstracted in anticipation of and in preparation for the assignment. It was intended to reserve it from the operation of the assignment for the future benefit of the assignors, and the assignment was only a part and parcel of the scheme, and, therefore, the fraudulent intent in withholding this money permeated the making of the assignment, which was simply a culmination of the whole scheme, and renders the whole proceeding void. We do not see how, in view of the large amount abstracted, and the making of the false entry to cover up the same, that it is possible to overlook it, or that the judgment-debtors were actuated by any other motive than that of making future provisions for themselves by abstracting property from the reach of the assignment which they then contemplated making. It is true that our attention has been called to the case of Vietor v. Nichols (13 N. Y. St. Rep., 461). But the facts in that case were very different from those before the court. There the amount of money abstracted was limited in the extreme, and was taken for the purpose of paying debts which were due and not for the purpose of supporting the assignors and their families after the making of the assignment. We do not see how any other conclusion can be drawn from these conceded facts, than that there was in the abstraction of this money a fraudulent intent, and that it was part and parcel of the scheme which resulted in the assignment and which fraud must vitiate the whole transaction.

The judgment must be reversed and a new trial ordered, with. costs to appellants to abide the event.

• Cullen, J., concurred.

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


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    JARED A. TIMPSON, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Accident — resulting from slipping upon ice on the platform adjacent to the cars of an elevated railroad — liability of the company.

    In an action, brought to recover damages for injuries sustained by the plaintiff on the defendant’s railroad, it appeared that the plaintiff, in leaving the train of the defendant, stepped upon the platform of the station, slipped and fell and received the injuries complained of.
    There had been a considerable fall of snow the day before the accident, which there had been an attempt to remove from the platform, and it was snowing and sleeting, and the wind was blowing hard, on the day of the accident, and the platform upon which the plaintiff alighted was slippery either from snow or ice. No sand or ashes had been put upon the platform with a view to improving its condition.

      Held, that a proper case was presented for the consideration of the jury.
    That different rules as to the obligation of the company were applicable to the portion of the platform upon which a passenger must necessarily alight, from those which related to places which a passenger had an option whether he world make use of or not.
    Appeal from judgment in favor of plaintiff on a verdict for $5,000, rendered after a trial at the New York Circuit, and entered in tbe office of the clerk of the county of New York, November 23,1888, and from an order denying a motion for a new trial, entered in said office November 21, 1888.

      Howard Townsend, for the appellant.

      James M. Hunt, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages for personal injuries received by the plaintiff, by slipping upon ice upon the platform of the defendant’s station, and, in falling, striking against an iron pillar and thus injuring himself.

This case was tried once before and came up to this court upon appeal, and we see no reason now to change the opinion then expressed, that there was enough of competent proof to sustain the verdict, although we were compelled to reverse the judgment because of an error in the reception of evidence. It is true that there has been called to our attention, upon this appeal, a decision of the Court of Appeals which had not been rendered upon the argument of the previous appeals ; and although it may be difficult to reconcile entirely the reasoning of the court in the last case cited (Palmer v. Penn. Ry. Co., 12 N. Y., 234) with some previous decisions, yet it seems to us that, in construing the particular facts of that case, it should not be held to overrule the authority of previous cases, which seem to be entirely applicable to the facts disclosed by the evidence in the case at bar.

The evidence showed that there had been a considerable fall of snow the day before the happening of the accident, and that this snow had been attempted to be removed by shovels or brooms. It also showed that it was snowing and sleeting and the wind blowing hard on the day of the accident, and that the platform upon which the plaintiff was compelled to alight from the defendant’s cars was slippery, whether from snow or ice is not particularly material; and there was also evidence tending to show that no sand or ashes had been put upon the platform for the purpose of ameliorating its dangerous condition. TJpon this condition of the evidence, it seems to us clear that the defendant was not entitled to a dismissal of the complaint.

In the case of Weston v. New Work Elevated Railway Company (73 N. Y., 595) it was held that the defendant was bound to be alert during cold weather, and see whether there was ice upon the platform, and to remove it or make it safe by sanding it, or by putting ashes upon it, or in some other manner. Consequently, upon the fact being shown that this platform was in this slippery condition, and that no means had been used by either sanding or putting ashes upon the platform to make it safe for passengers who were compelled to land upon it, a prima facie case was made out against the defendant.

It is true that, in the opinion in the case of Palmer v. Pennsylvania Railroad Company, above-mentioned, the learned judge who delivered the same makes use of language which seems to be inconsistent with the rule above laid down. But we think that until it is distinctly held by the Court of Appeals that no such diligence is to be used upon the part of railroad companies in respect to the maintenance of that part of the platform upon which the passenger is bound to alight, as to which he has no choice, we cannot concur in tlie view that mere ordinary care discharges the duty of the company to its passengers.

In the case of Palmer, above cited, the conclusion of the court may well have been founded upon the fact that the plaintiff in that case was well aware of the condition of the platform of the cars, and, notwithstanding the fact that he knew that these platforms were slippery and covered with ice, yet failed to use the precautions which a passenger would naturally take to prevent falling under those circumstance, and, therefore, he was guilty of contributory negligence.' We do not think that the care which 'the railroad company owes to its passengers is discharged the moment its train stops. We presume that that care continues and the same diligence must be exercised upon the part of the company until the passenger is safely discharged at least. Different rules must be applied to those portions of the platform upon which the passenger must necessarily alight from those in respect to the care and keeping of other parts of the platform, as to the going upon which the passenger has an option, and may or may not make use of the same. In the case of Hulbert v. New York Central Railroad Company (40 N. Y., 145), it was held that passengers have a right to suppose that adjacent to the cars the ground admits of their going safely out. And the court further said, “ within the limits in which persons necessarily and ordinarily go to and from the trains, it is necessary that the company keep the ground safe.” • And we are of opinion that the rule, as laid down in the case of Weston, is as favorable to the defendants as can prevail. The learned court in the trial of this case presented this issue fairly and squarely to the jury, and, as we have seen, there was a prima facie case made out in favor of the plaintiff. It was for the jury to determine as to whether the defendant had discharged itself of its obligation as laid down by the charge of the court, in view of the evidence offered upon its behalf. The jury having come to the conclusion that it had not, and there being evidence enough to justify them in arriving at the result which they did, we see no reason whatever for disturbing the verdict.

The judgment appealed from should be affirmed, with costs.

Dajjtlett, J., concurred.

Judgment affirmed, with'costs.


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    WILLIAM H. RUTTY, Respondent, v. CONSOLIDATED FRUIT JAR COMPANY, Appellant.

      Breach of contract for the manufacture of goods — sufficiency of the allegations of the complaint as to a (demand, and an offer)' to receive amd to pay foi' them— conforming the pleading to the proof.

    In an action, brought to recover damages for a breach of contract, whereby the defendant agreed to manufacture for the plaintiff certain glove clasps, to be delivered from January 1, 1884, at twenty-nine cents per gross, it is necessary for the plaintiff to allege in his complaint and show that during the lifetime of the contract he demanded the goods, or that he notified the plaintiff of his willingness to receive and pay for the same.
    Where no place of delivery is mentioned in the contract the presumption is that the goods are to be delivered at the place of manufacture, and in order that the defendant should be put in default it is necessary that a demand or an offer to receive the goods, and to pay for the same, be made within the peiiod fixed by the contract.
    The pleadings cannot be conformed to the proof, where an objection is taken in due form to the sufficiency of the' complaint, which sets forth the cause of action. It is only in a case in which no objection is taken, or where, after the evidence has been admitted without objection, an objection to the complaint is taken at the end of the trial, that the court can make an order amending the pleading in such wise as to make it conform to the proof.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee, in the office of the clerk of the county of New York on the 12th day of January, 1889, for $3,996.07 damages and costs.

      L. A. Fuller, for the appellant.

      J. Eustis, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages for the breach of a contract for the manufacture of certain merchandise. The allegations of the complaint, in brief, are that in November, 1883, the defendant entered into a contract with the plaintiff, whereby it agreed to manufacture for the plaintiff 10,000 gross of Butty’s button-glove clasps, as per sample, 500 gross per week to be delivered from January 1, 1884, at twenty-nine cents per gross; that defendant did not perform said contract on its part, but wholly neglected the same, in that no clasps were made and delivered under said contract until the end of February, 1884, and then only a few gross and those incomplete; that from time to time until the month of February, 1885, when the defendant refused to deliver any more clasps, plaintiff received only 700 gross under said contract, and many of those were imperfect, and that, in consequence of defendant’s failure to perform, the plaintiff lost the sale and profit of those goods, to the plaintiff’s damage $12,000. For a second cause of action the plaintiff alleges, reiterating all the previous allegations, that when the defendant threw up the contract in February, 1885, the plaintiff employed other parties to make' said clasps, on notice to the defendant, and had said clasps made by different parties at an expense exceeding the contract-price to the amount of $3,129.05. And for a third cause of action the plaintiff alleges the delivery of certain tools mentioned and brass to use in making the clasps of the value of $1,216.80, which were destroyed by fire when in defendant’s possession. The answer was substantially a general denial. The plaintiff gave evidence tending to prove the allegations of the complaint, and the defendant gave evidence to the contrary.

Upon the termination of the evidence the defendant moved to dismiss upon the ground, amongst others, that the complaint did not allege that the plaintiff demanded the goods during the lifetime of the contract; secondly, that it did not allege that the plaintiff had tendered the price nor that he was able or ready to receive the goods, and that the complaint did nob allege that the defendant refused to complete the contract until February, 1885, after the contract had expired. The referee overruled these objections and found the making of the contract; that the plaintiff extended from time to time the delivery of the clasps, and that some few of the clasps were delivered under the contract, and that after the refusal and failure of the defendant to complete the contract the plaintiff procured the balance of the clasps at an expense, over and above the amount of the contract, of $3,062.08, and for this amount gave judgment, and for another small item which it is not necessary to mention.

The claim is now made that the overruling of the motion to dismiss the complaint was error. In this it seems to us the appellant is clearly right. In the case of Pope v. Terre Haute Car Manufacturing Com pany (107 N. Y., 61), it was distinctly held that the promise of the defendants to manufacture, sell and deliver the goods, and of the plaintiff to receive and pay therefor, were mutual and concurrent ; and that neither pai*ty can maintain an action against the other for a breach of that contract without proving performance on his part. This the plaintiff has utterly failed to do. He has not alleged in his complaint any demand for the goods or any notice of willingness, upon his part, to receive and pay therefor. In the contract no place of delivery was mentioned, and the presumption is that the goods were to be delivered at the place of manufacture, and in order that the defendant should be put in default, it was necessary, under the rule laid down by this decision, that a demand should be made and an offer to receive the goods and pay for the same tendered. If the defendants were suing because the plaintiff had failed to receive and pay for the goods, it would undoubtedly have been necessary for them to have established that they either delivered or offered to deliver the merchandise within the time mentioned by the contract. If it would have been necessary for the defendants to prove this to recover upon the contract, it was certainly equally incumbent upon the plaintiff to prove that he had either demanded or had signified his willingness to receive and pay for the merchandise during the life of the contract before he could recover damages for any breach.

There is no allegation of a demand until after the expiration of the contract, and there is no allegation in the complaint of an extension of the contract, and although this was found by the referee, yet still, in the face of the motion to dismiss because of its want of allegation, he seems to have thought he had the power to give judgment according to the evidence, notwithstanding that no amendment of the pleading was asked for or made. The authority cited shows that such practice cannot prevail, and that if an objection to a defect in the pleading is taken before the case is submitted, the weakness permeates the whole case, and unless the necessary allegations are present a recovery cannot be had. It is true that in the case cited the motion was made on the opening of the case. But the right to make such a motion exists until the case is actually submitted for decision. The pleadings cannot be conformed to the proof where there is an objection taken in due time to the sufficiency of the pleading which sets forth the cause of action. It is only where no objection is taken or where, if at the end of the case, evidence has been admitted without objection, the objection is taken, the court makes an order amending the pleadings to conform to the proof. But no recovery can be had unless the pleadings contain the necessary allegations. As already stated, there were no allegations showing the extension of this contract, and consequently the referee had no power to make any such finding for the purpose of sustaining a recovery in view of the objection as to the weakness of the complaint. That the contract had expired by the terms of the complaint at the time of the making of the demand was distinctly taken as one of the grounds upon which a dismissal was asked. In the face of this objection the referee had no power to discuss the question of the extension of this contract, as to which nothing was alleged, as though no such objection had been taken.

Ve are of opinion, therefore, that the failure to allege this extension, the failure to allege willingness to receive and pay for the merchandise during the life of the contract, and, therefore, of willingness to perform, upon the part of the plaintiff, was a fatal defect and precludes a recovery upon the complaint as it now stands.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Cullen, J., concurred.

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