text:
    Charles Greite, Respondent, v. Charles Henricks, Appellant, Impleaded with Leopold Kornick.

      Appeal from an ot'der committing for contempt, conditionally — premature— transfer of a business in contemplation of a judgment restraining it.

    It seems that an appeal from an order adjudging a person guilty of contempt and directing his commitment to jail, unless he procures the cancellation of certain assignments of property made hy him and pays the costs of the motion, is premature; that the final order should he awaited and the appeal taken therefrom.
    Where an action is brought for the purpose of restraining a person from carrying on a certain business, and, pending the trial, the defendant in such action threatens to escape the effects of an adverse decision hy transferring his business, and a day or two prior to the entry of judgment against him in such action, he actually transfers such business and it is continued under the name of such transferee, an order made adjudging such defendant in contempt and directing his commitment to jail unless he procures the cancellation of his transfer and pays the costs of the motion, is proper and should he sustained.
    Appeal by tlie defendant, Charles Henricks, from an order made at the Westchester Special Term, entered in the office of the clerk of the county of Westchester on the 9th day of January, 1893, adjudging him guilty of contempt in violating a judgment enjoining him from carrying on the business of keeping a hotel, saloon, boarding house and restaurant on premises situated in the city of Mount Yernon.
    It appeared at Special Term, by the affidavit of Charles Greite, that, pending the trial of the above-entitled action brought by Charles Greite against Charles Henricks and another to restrain said Henricks from carrying on a saloon business, the defendant Hen-ricks threatened to escape the effect of an adverse decision by selling the business to one Patrick Carroll. On the 5th day of November, 1892, the court made its decision in the action and the same was filed.
    Judgment in favor of the plaintiff was entered in the action in the office of the clerk of the county of Westchester on the 19th day of November, 1892, enjoining and restraining the defendant, his attendants, servants and employees from in any manner carrying on or engaging in any hotel, inn-keeping, saloon, restaurant or boardinghouse business upon the premises aforesaid, or within one-half mile •of the said premises, at any time within five years from January 15, 1891, or from leasing said premises, or any part thereof, for the purpose aforesaid, or from assigning his excise license, or in any manner, directly or indirectly, aiding or assisting any other persons in carrying on or engaging in said business on said premises, or any part thereof, during said period; and on the 22d day of November, 1892, such judgment and decree was personally served on the ■defendant, Charles Henricks, in the city of Mount Yernon.
    In the affidavit of Patrick Carroll, it was alleged that on the 14th day of November, 1892, the defendant Henricks sold the'hotel business in question for $7,500 to said Carroll.
    It also appeared that Henricks executed a transfer of his excise license to said Carroll, and that since the 15th day of November, 1892, the said Carroll has been in possession of said premises. ■

      David Swits, for the appellant.

      Mcwtin J. Keogh, for the respondent.
   Barnard, P. J.:

A judgment was obtained by the plaintiff against the defendant, Challes Henricks, on the 19th of November, 1892, restraining him from carrying on a saloon business. The case was tried in October, 1892, and the decision was filed on the 5th of November, 1892. Pending the trial, the defendant Henricks threatened to evade an adverse decision, that he would sell to one Carroll the business and that it should not be shut up no matter what the court decided. A day or two before the entry of judgment he did sell the business to Carroll and it continued under Carroll’s name thereafter. Henricks owned the title to the real estate and had covenanted that he would not carry on a saloon business within a half mile of the same for five years from January 1, 1891. The covenant he had received a large price for, and his violation of it caused a large loss to the plaintiff who was carrying on a similar business on premises adjoining. The covenant had been given upon a sale of the business on the defendant’s premises, but he had forced the plaintiff to lease the “ adjoining premises ” in gross violation of the spirit of the covenant. The court adjudged that he was guilty of contempt and directed his commitment to jail unless he undid his transfer with Carroll and pay the costs of the motion. The appeal is from this order, and it seems that the appeal is premature. -The final order should be awaited and an appeal taken from that. (Brinkley v. Brinkley, 47 N. Y. 40 ; Code, § 2281; Matter of Crosher, 11 N. Y. Supp. 504.)

If the appeal is proper the order should be sustained. It is true that the formal service of the judgment was not made until after the transfer to Carroll; but this transfer was made upon the avowed purpose of rendering the judgment idle. He actively interfered to make a judgment of the court nugatory, and, therefore, was guilty of a contempt. (King v. Barnes, 113 N. Y. 476.)

The forbidden acts were continued after the service of the order.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred ; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Estate of Isaac Hoyt, Deceased.

      Will — devise of rents, etc., gives a life estate — void provision for accumulation.

    Where the clause of a will is precise and definite, and shows that the intention of a testator was to devise a life estate and no more, a devise of rents, issues and profits will pass only a life estate.
    A testator directed his executors to lease all the rest, residue and remainder of the testator’s real and personal property, and, after deducting the taxes, insurance and mortgages held against said real estate from the rents and income arising therefrom, to deposit the balance in a savings bank, in order to create a fund to liquidate or help pay off any indebtedness against the estate. He further empowered the executors in their discretion to sell such real estate, and to' deposit in the savings bank the moneys resulting from the sale thereof, after deducting the expenses of sale and the indebtedness held against such real, estate; and at the termination of the life estate created in certain other property, they were directed to divide the same between the grandchildren of the testator then surviving.

      Held, that such direction and the accumulation provided for were illegal.
    Appeal by Hattie L. Hoyt, a devisee and legatee of the testator,, Isaac Hoyt, deceased, from that part of a decree bearing date and entered in the surrogate’s office of Orange county on the 13th day of January, 1890, which directed $600, the proceeds of sale of Amity property, to be invested by the executors, and the interest paid to Hattie L. Hoyt during her natural life. And also from such part of the supplemental decree and decision of the surrogate bearing date and entered in the surrogate’s office the 19th day of December, 1892.
    1st. “ As sustains the power of sale in said will of a portion of the Amity property. Also directing the executors to hold and invest the $600 item proceeds of sale of Amity property, during Hattie L. Hoyt’s life, and to pay the income thereof to her,” etc.
    2d. “ That the remaining portion of the Amity property belonging to the deceased at the time of his death and remaining unsold, be held by said executors as trustees for the benefit of the testator’s daughter, Hattie, during her life, to hold and manage the same dur-iug the natural life of Hattie L. Hoyt, and pay the net income derived from the same to her annually from the date of said decree of January 13, 1890.”
    3d. “ Upon the death of the said Hattie L. Hoyt, that the said trustees pay over the principal or any fund which they may then hold derived from the sale of any of the lands, to the legal representative or assignee of the said Hattie L. Hoyt, one-half thereof, and to Anna A. Conklin, her heirs and assigns, one-half thereof.” 4th. “ In all other respects the decree of January 13, 1890, be and the' same is hereby unaffected and in full force.”
    The surrogate in the decree of December 19, 1892, decreed that the said account and decree heretofore filed and entered in this matter, be and the same are hereby modified as follows :
    The item of $600, in said account from the Amity property sold by said executors now in the hands of the executors, is directed to be by them held and invested for and during the life of the said' Hattie L. Hoyt, and the interest or income thereof, realized by them, to be paid to her annually from the date of said decree, January 13,1890, for and during her natural life. And further decreed, that the remaining portion of the Amity property belonging to the deceased at the time of his death and remaining unsold, be held by said executors as trustees for the benefit of the testator’s daughter Hattie during her life, who were directed to hold and manage the same during tlie natural life of Hattie L. Hoyt, and pay the net income derived from the same to her annually from the date of said decree of January 13, 189U. And further decreed, that upon the death of the said Hat'tie L. Hoyt, that the said trustees pay over the principal of any fund which they may then hold derived from the sale of any of the lands to the legal representative or assignee of the said Hattie L. Hoyt, one-half thereof, and to Annie L. Conklin, her heirs or assigns, one-lialf thereof.
    The will of Isaac Hoyt is contained in the opinion of the court.

      Gilbert I), llulse, for Hattie L. Hoyt, devisee and legatee, appellant.

      John J. Beattie, for the executors, respondents.

      W. D. Mills, for Annie A. Conklin, respondent.
   Barnard, P. J.:

Isaac Hoyt, a resident of Orange county, died in 1886, leaving two children,, one, the petitioner, Hattie L. Hoyt, unmarried, and a married daughter, Annie A. Conklin. The deceased left a last will and testament, as follows :

I, Isaac Hoyt, of the town of Warwick, county of Orange, and State of New York, being of sound mind and memory, and considering the uncertainty of this life, do make, publish and declare this to be my last will and testament, in manner following, to wit:
“ First. After all my just debts and funeral expenses are paid I give, devise and bequeath to my daughter Hattie L. Hoyt, the rents, interest and income of all my real estate situate, lying and being in the village of Amity, in the said town of Warwick, after deducting taxes, insurance, interest on bond and mortgage given to Elizabeth Utter, to secure the payment of twelve hundred dollars, and all necessary repairs thereon, the same to be collected by my executors hereinafter named, and paid to her annually for and during her natural life. And should my executors in their wisdom consider it best for the interest of my estate, to sell or dispose of all or any part thereof, then the moneys arising from such sale or sales to be invested, and the interest to be paid to her as aforesaid.
“All the rest, residue and remainder of my real and personal estate, wheresoever situated, I order my said executors to lease, and the rents and income arising therefrom, after deducting all taxes, insurance and mortgages held against any such real estate, necessary repairs and commissions, to be deposited in the "Warwick Savings Bank, or any other solvent savings bank, to create a fund to liquidate or help* pay off any indebtedness against the same.
“ I, however, leave it discretionary, and empower my said executors, whenever they deem it for the best interest of my estate, to sell all or any of my real estate, and to give sufficient deed or deeds to the purchaser or purchasers thereof, and the moneys arising from such sale or sales, after deducting all expenses of such sale or sales, and the indebtedness held against such real estate, to be deposited, as aforesaid, or upon good securities elsewhere.
“ And at the decease of my daughter Hattie L., to be equally divided between each of my grandchildren her surviving, share and. share alike, her children and the children of my daughter Annie A. Conklin.
“ Lastly, I nominate and appoint my friends, J. E. Waterbury and Wm. J. Sly, executors of this my last will and testament, hereby revoking any and all former wills by me made. •
“ In witness whereof, I have hereunto set my hand and seal this 25th day of May, 1886.
“ ISAAC HOYT. [l. s.] ”

The testator did not intend to give more than a life estate in the Amity lands by the first clause in the will. While there is a class of cases which hold that a gift of rents, issues and profits cover a fee, this clause is so precise and definite that no doubt of the testator’s intention can he raised. The rents were to be paid, after deducting repairs, taxes and interest, to Hattie “ annually for and during her natural life.” The executors had given to them a power of sale, but in case of a sale the moneys received on the sale were to be invested and “ the interest to be paid to her as aforesaid.” (Matter of Smith, 131 N. Y. 239.) What the testator intended to do with the land after the life estate ended is not plain. There is no distinct gift of it. The testator divided his estate in two parts. ■ He gave a life estate in the Amity lands to his daughter Hattie for life. ' He theii directs that the “ rest, residue and remainder ” of the estate, real and personal, be leased, and the proceeds, deducting taxes, insurance and repairs, be deposited in a savings bank or invested “ to create a fund to liquidate or help pay off any indebtedness against the same.” A power of sale is given in respect to the lands other than the Amity lands, but the proceeds of lands under this part of the will are to be “ deposited as aforesaid or, upon good securities, elsewhere.” The will then ends in this clause:

“And at the decease of my daughter ITattie L., to be equally divided between each of my grandchildren her surviving, share and share alike, her children and the children of my daughter Annie A. Conklin.”

The serious question in the will is whether this clause was intended to cover the Amity lands and the rest, residue and remainder of the estate other than the Amity lands. My opinion is that it was intended to thereby dispose of the whole estate. No provision is made for the payment of any portion of the estate to Mrs. Conklin during the life of Hattie L. Hoyt. Both parts are tied up during the life of Hattie, and both are made free upon her death. In determining whether the Amity lands are covered by this clause, it is immaterial what shall be adjudged to be the legality of the disposition of the rest and remainder under the clause which provides for an accumulation of that part of the estate until Hattie’s death.

I think this rest and remainder at once gives to the two daughters equally, because the accumulation is illegal; and that the Amity lands are given to the grandchildren living at Miss Hoyt’s death, per ca/pita.

Decree to be modified accordingly.

Peatt, J., concurred.

Parts of decree appealed from modified in accordance with opinion; order to be settled by Justice BaeNAed.


text:
    Louise M. Galligan, Plaintiff, v. Lewis M. Hornthal, Defendant.

      Libel — change of venue — conditional denial of motion for.

    Upon a motion made on behalf of a defendant for a change of the place of trial, for the convenience of witnesses, of an action brought to recover damages for the uttering of a libel by the defendant by virtue of his public office or incident thereto, where the county to which the venue is sought to be changed, is one in which the causo of action, or some part thereof, arose, an order denying such motion is error, and the defendant is entitled to the change of venue as a matter of right under subdivision 2 of section 983 of, the Code of Civil Procedure.
    In such an action the court, at Special Term, denied such a motion to change the place of trial on condition that the plaintiff withdrew the third cause of action in his complaint; otherwise it was granted.

      Held, that it was not within the power of the court to impose such a condition.
    Ceoss-appeals, one by the defendant, Lewis M. Hornthal, from that part of an order of the Supreme Court, entered on the 1st day of February, 1893, in the office of the clerk of the county of Queens, which provides that the motion on the part of the defendant, for an order directing that the place of trial in this action be. changed from the county of Queens to the city and county of New York, be denied; the other by the plaintiff, Louise M. Galligan, from that part of the same order which provides as follows : “ On condition that the plaintiff withdraws the third cause of action in said complaint; otherwise granted.”
    At the Kings County Special Term, after hearing the to change the place of trial, an order was made that said motion be and the same is hereby denied, with ten dollars costs, on condition that plaintiff withdraws the third cause of action in said complaint; otherwise granted.

      Jolm J. MaeUm, for the plaintiff, appellant.

      Won. IT. Cohen, for the defendant, appellant.
   Barnard, P. J.:

The complaint states three causes of action against the defendant for libel. The plaintiff is a teacher in one of the common schools of the city of New York known as primary department of Grammar School No. 70. That the board of education had vested the trustees of common schools for the nineteenth ward of the city of New York with the care and management of this primary department, and that the defendant was one of the trustees and the secretary of this ward board. That the defendant stated to persons connected with the press, that the plaintiff was before the board under injurious charges which were proven, and that she would have been dismissed except that there was no law to cover the ease, and these statements were published and that they were false. The second cause of action states that the defendant and his associate trustees took testimony of under teachers, injurious to the plaintiff, without requesting her presence, and subsequently served a copy of charges alleged to' be based upon that testimony. That the defendant caused to be published the same article which is set forth in the first cause of action. That the statements were not founded on the testimony taken by the trustees and were false.

The third cause of action sets forth that the defendant with his associate trustees, took testimony without notice to plaintiff in respect to her management of her school and in respect to her personal reputation. That the testimony was very injurious to the plaintiff and was untrue. That the defendant and his associates made charges based upon this testimony, which testimony was taken down in writing and circulated. That the charges and testimony were filed with the board of education, which board referred the case to a committee for investigation. That the representatives of the public newspapers obtained access to them and published what purported to be extracts from the statements. That the defendant furnished a synopsis of the testimony to the public press, and that an injurious article was published in the New York Times on the 11th of June, 1892. That the defendant told the Times reporter that the language used by the plaintiff as shown by the evidence of under teachers was “Vile, immoral and disgusting.” That the board of education removed the plaintiff from her position as principal. The plaintiff then sets forth the evidence, and it is injurious to the plaintiff.

The answer makes denial of certain of the allegations of the complaint, and sets up the proceedings of the trustees, and claims them to be privileged under the state of the pleadings. The defendant, wbo had demanded that the place of trial be changed from Queens county, which is designated in the complaint, to the county of New York, made a motion to change the place of trial to New York. The motion is based upon the fact that the convenience of witnesses will be promoted by the change. The motion ought to have been granted as matter of right under subdivision 2 of section 983 of the Code. The defendant is sued for an official act and it is not made less official by a statement that the statements of the witnesses taken were false and untrue. If the witnesses testify falsely the testimony will protect those who act upon it if they have not procured the false testimony if it be taken in a regular proceeding. The complaint states that it was taken without notice. The answer states that it was taken upon notice, and thereby an official act is pleaded if the defendant’s allegation is proven on the trial. The section as to the place of trial for official acts will be rendered futile if it be held not to be official by a denial of jurisdiction to do the act and such a denial be deemed controlling upon the defendant.

The convenience the place of trial. None of the witnesses on either side reside in Queens county. The condition that the defendant shall withdraw the third cause of action is not within the power of the court to impose against the counsel of the plaintiff. She has the right to frame her complaint under the rules of law, and her action must be tried upon it.

DyoKMAN, J., concurred; Pbatt, J., not sitting.

Order reversed, with costs and disbursements, and motion granted unconditionally, with ten dollars costs to abide event.


text:
    Henry Berau, Appellant, v. Daniel O’Connell, Respondent.

      Evidence —preponderance of proof.

    A judgment in an action tried by the court without a jury, rendered in favor of a party whose testimony on the material facts is unsupported, and is contradicted by the testimony of three opposing witnesses, should he reversed.
    In an action brought by one of two partners against his co-partner to recover moneys alleged to have been taken by the latter from the partnership funds, ostensibly to protect the partnership interests and, in fact, retained by him, the plaintiff testified upon the trial that defendant told him that four per cent of the amount of their receipts under contracts, entered into by the firm for city work, must be paid to certain unnamed persons; that he at one time paid §1,500 to defendant, who added §1,500 to it and placed it in the hands of one W., in his presence, with the direction that it was to be given to a person who should present a card with “H. B.” on it, written by defendant; defendant testified that such statement was not true; that it was false. W. testified that plaintiff left the package of §3,000, with the card marked “H. B.,” and does not know who presented the duplicate card, or to whom the money was paid, and believes that defendant was not present.
    The evidence as to subsequent payments as between the parties was equally contradictory. The plaintiff’s evidence was supported by his son, who stated that on two occasions he paid defendant sums of money for his father, and that on one or several occasions he saw his father pay over money to defendant. Judgment was rendered by the court in favor of the defendant for costs.

      Held, that the judgment should be reversed and a new trial be granted;
    That the evidence of the plaintiff and his son should be believed as against the defendant, whose evidence was contradictory to theirs as well as to that of W.
    Appeal by tlie plaintiff, Henry Beran, from a judgment of the Supreme Court dismissing the plaintiff’s complaint upon the merits, entered, upon a decision of the court rendered at the Kings County Special Term, in the office of the clerk of Kings county March 22, 1892.

      Hector M. Hitcldngs, for the appellant.

      Anthony Bm'-rett, for the respondent.
   Barnard, P. J.:

The parties to the action entered into copartnership in December, 1886, in a contract given by the city of Brooklyn to Berau for the removal of garbage from the streets of the city of Brooklyn. The name of the firm was Henry Berau. The contract was subsequently enlarged and the partners commenced their employment. The usage of the parties was to settle monthly. The business continued until February 12, 1892, when the copartners had a full settlement. The complaint is framed upon a general allegation made by the plaintiff that the defendant toot from the partnership funds large sums of money with which to protect the partnership interests, and that he did not so use the money; but that the money was taken by defendant under a false allegation that the sums were needed, but that no payments were ever made, and the money was retained by the defendant for his own use. The defendant denied the allegations of the complaint. Upon the trial the general allegations became, by the evidence, specific. The plaintiff testified that the defendant; at the commencement of the partnership, told him that four per cent of the total amount of the receipts for the city work under contract must be paid to certain unnamed persons designated as “ them parties in Willoughby street.” The plaintiff asked who they were, and the defendant told him he would learn later. Four or five months after the contract commenced, the defendant told the plaintiff that the four per cent amounted to $3,000, and “ they want some money.” Thereupon, the plaintiff testifies he got $1,500 and gave it to flie defendant; that defendant put his $1,500 with it and gave the bundle to Mr. "Wernberg in his, plaintiff’s, presence. No direction was given as to its deposit beyond this; that it was to be given to a person who should present a card with H. B. on it, written by the defendant. This transaction stands alone and has a vital, even controlling, intent upon the other payments claimed to have been subsequently made. The defendant denies the statement entirely in a sentence, “ that is not true; that is false.” Mr. Wernberg is called, and he states that the plaintiff left the package of $3,000, with a card marked H. B. That he has no recollection who presented the duplicate card, or to whom he paid the moneys. That he believes the defendant was not present. A careful reading of the testimony of Mr. Wernberg leads to the conclusion that the plaintiff’s narrative, gave the true account of the $3,000. There was a package of $3,000. There were two cards printed H. B. The package contained one, and the other was to be given to him as a voucher by which Mr. Wernberg should be authorized to give the money. It is an easy inference that the money was returned to the defendant. He liad the authority to get it, and gave it to someone or used it himself. He is responsible until he shows a payment to some other person. If four per cent was to be paid to someone, its payment would absolve the defendant; he has the keys of knowledge, as I read the evidence, of plaintiff and Wernberg.

The evidence between the parties as to the subsequent payment is equally contradictory. The plaintiff says that four per cent was paid yearly to defendant under the same pretense. That when an additional contract was obtained, there was $916 due and payable each month, and that one-lialf of this, $458, was paid in cash by the plaintiff to the defendant. The plaintiff is supported by his son. The son states that on two occasions he paid defendant, for his father, $458 ; that on one or several occasions he saw his father pay over money to defendant; that the defendant on some occasions urged him to tell his father that “ those people want the money,” and that he went to the bank to draw money on his father’s checks. These cheeks were rejected, although the fact that the $458 cash was paid, obtained by the checks.

Under this evidence, if the $3,000 was paid Wernberg, all others were. That payment established the four per cent basis, and with the evidence of the plaintiff and his son as to the remaining payments, they should be believed as against the defendant, who contradicts not only these witnesses, but Mr. Wernberg as well. No money was to be or was paid to gentlemen in Willoughby street. That was only an excuse to get this considerable sum of money from his partner.

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

Dykman, J., concurred.

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


text:
    James McNeil, as Administrator, etc., of Arthur McNeil, Deceased, Appellant, v. The New York, Lake Erie & Western Railroad Company, Respondent.

      Master and servant — a failure to "block" railroad tracks, not negligence.

    An employee assumes the risk of Ms employment. His master is not bound to furnish the best kind of appliances, nor to give an extreme character to a structure so as to insure safety. The measure of his duty is reasonable care.
    In an action brought by an employee’s administrator against the employer to recover the damages resulting from the death of the employee, it was shown that the employee’s foot was caught between the guard rail and the main rail of a railroad while he was disconnecting moving cars; and that the guard rails were not blocked, which, had they been so, would have prevented his foot from being caught between the rails.

      Held, that no negligence was shown on the part of the defendant.
    Appeal by the plaintiff, James McNeil, as administrator, etc., of Arthur McNeil, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 26th day of June, 1891, dismissing the plaintiff’s complaint after a trial at the Orange County Circuit before the court and a jury.

      John W. Lyon, for the appellant.

      Lewis E. Oa/rr, for the respondent.
   Barnard, P. J.:

Arthur McNeil, on the 2d of December, 1888, was killed by being run over by the moving cars of defendant. The deceased was a brakeman in the employ of defendant and the accident to him happened while he was engaged in switching cars. The deceased stepped between moving cars to disconnect them, and his foot was caught between the guard rail and the main rail. The negligence claimed on the part of defendant is that the company did not block the guard rail; which is done by placing in the opening between the two rails, something which would prevent the foot of an employee from being caught between the two rails. The rule is that an employee assumes the risk of the employment. (Kern v. De Castro, etc., Company, 125 N. Y. 50 ; Davidson v. Cornell, 132 id. 228.)

The master is not bound to furnish the best kind of appliances or to give an extreme character to the structure so as to insure safety. The measure of duty is reasonable care. The evidence tended to show that some guard rails were blocked and some not. The case cannot be distinguished from the case of Appel v. Buffalo, etc., R.R. Co. (111 N. Y. 550).

The nonsuit was, therefore, right and the judgment should be . affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    Charles O. Olmstead, Appellant, v. Town of Pound Ridge, Respondent.

      Action against a town — allegation as to the presentation of the claim — Laws of 1890, chapter 568, section 16. '
    In an action against a town, brought to recover damages for an accident alleged . to have occurred by reason of the neglect of the highway commissioners of the town to keep a highway therein in proper repair, the complaint must show that the claim for such damages was served upon the supervisor of the town within six months after the. cause of action had accrued, and that fifteen days had elapsed after the claim was so presented before the action was commenced. An omission to allege these facts is a defect that can be taken advantage of at any stage of the action.
    Appeal by the plaintiff, Charles O. Olmstead, from an order dismissing the plaintiff's complaint, and from the judgment of the Supreme Court in favor of the defendant, entered in the office of the •clerk of the county of Westchester on the 28th day of March, 1893.
    This action was colnmenced by the service of a summons and complaint on the supervisor of the town of Pound Ridge on the 1st of December, 1892. The complaint alleged that the town of Pound Ridge was a municipal corporation; that it is made the duty of its commissioners of highways to keep the highways and bridges in said town in good order; that on the 25th of March, 1892, while plaintiff was driving over a bridge subject to the jurisdiction of said highway commissioners, by reason of the poor repair of the said bridge, plaintiff’s horse’s foot slipped through a hole in such bridge, and the horse was permanently injured, and rendered almost of no value.
    The defendant, by its answer served on the 11th day of January, 1893, admitted that it was a municipal corporation, and denied the other allegations of the complaint.
    The action was brought on for trial before the court and a jury at the Westchester Circuit on the 17th day of March, 1893. The defendant’s counsel then moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action, in that it did not show that plaintiff had presented to the supervisor of the town, within six months after the alleged accident, a duly verified statement of his claim against the said town. The motion was granted and the complaint dismissed.

      Charles Haines, for the appellant.

      /Smith Lent, for the respondent.
   Barnard, P. J.:

The complaint is framed to recover damages for a neglect to keep a highway in the town of Pound Ridge in proper repair by the commissioners of highways of the town. The accident is alleged to have occurred by the neglect of the commissioners, and without any neglect upon plaintiff’s part, on the 25th of March, 1892. The complaint contains no averment that the claim was served upon the supervisor of the town within six months after the cause of action accrued, nor that fifteen days had elapsed after the claim was so presented before the action was commenced, according to the requirement of section 16, chapter 568, Laws ‘of 1890. The complaint was dismissed for this defect at the opening of the trial. The law in question simply imposed a condition which affected the remedy, and is subject to no objection. (Morse v. Goold, 11 N. Y. 281; Matter of Palmer, 40 id. 561.)

It was necessary to aver the performance of the conditions presented in the complaint. This defect in the complaint can be raised at any stage of the action. (Reining v. The City of Buffalo, etc., 102 N. Y. 308.)

The judgment should be affirmed, with costs.

Pbatt, J., concurred; DykmaN, J., not sitting.

Judgment affirmed, with costs.


text:
    In the Matter of the Probate of the Alleged Will of Adeline D. Bernsee, Deceased.

      Will — when the evidence cmthorizes its admission to probate.

    Upon the probate of a will, the positive oath of one of the attesting witnesses, corroborated by the surrounding facts and circumstances, will prevail as, against the failure of the memory of the other witness.
    In such a case, one of the subscribing witnesses to the will testified that the will was signed by the testatrix in his presence and in the presence of the second witness, and that at the time she declared the instrument to he her last will and testament and requested the witnesses to attest it as such. The attestation clause was ample and proper in form. The other witness testified that he signed his name as a witness, was asked in the presence of testatrix if he was willing to sign her will; he asked her if it was her will and testatrix nodded her assent; that he did not see the testatrix sign.

      Held, that the' will was properly admitted to probate; that even if it was not signed in the presence of the witnesses, what transpired was sufficient to prova the acknowledgment by the testatrix of her signature to the will.
    Appeal by the contestants, Adeline O’Donohue and John B. Gatlin, an infant, by his special guardian, from the decree entered in the office of the surrogate of Kings county on the 20th day of June, 1892, admitting an instrument in writing to probate as the last will and testament of Adeline D. Bernsee, deceased, and from an order denying a motion for a new trial, entered in the office of the said surrogate and also in the office of the clerk of the county of Kings on the 13th day of July, 1892.
    The attestation clause of the alleged will was as follows:
    “ Subscribed, sealed, published and declared by the testatrix Adeline D. Bernsee as her last will and testament in the presence of us who •at her request and in ber presence and in the presence of each, other have hereunto subscribed our names as witnesses.
    “ G. A. BLACK,
    “ 68 East Third Street, New York City.
    “ CHAS. M. BELLOWS, M. D.,

    “442 Nostrand Avenue, Brooklyn.”

      William G. De Witt, for the appellants.

      George G. Reynolds and Daniel DaVy, for the respondents.
   Barnard, P. J.:

The will was fully proven by the subscribing witnesses to it. It was executed the 24th of October, 1890. One witness, .Black, testifies that it was signed by the testatrix in his presence and in the presence of the witness Bellows, and that at the time she declared the instrument to be her last will and testament and requested the witnesses to attest it as such. The witness Bellows makes no real issue with him. He signed his name as a witness. He was asked by Mr. Bernsee if he was willing to sign his mother’s will. He looked at his mother and said, “ Is that your will ? ” holding the paper in his hands. The testatrix nodded her assent. Bellows then requested the witness Black to sign first, which he did, and then Bellows signed. Bellows testifies that he didn’t see the testatrix sign her name to the will. It makes no difference whether the name of the testatrix was signed before she went to Bellows’ office. What transpired is sufficient to prove the acknowledgment of her signature to the will, if not signed in the witnesses’ presence. This is on the assumption that a real issue is made as to the signature being in Bellows’ presence. The testimony shows the fact to be ■otherwise. The testatrix’s name is on the will. The attestation clause is full. Bellows does not remember to have seen it. He “took it for granted that everything was right.” lie knew he was attesting as a witness that the paper “ was her will” and to give the paper effect and validity. The testatrix was nervous but of sound mind. She knew what the instrument was. “ If she had not (testifies this witness) I would not have signed it.” She appeared to be under no restraint and was willing to execute the will. The will was arranged that the testatrix’s name must have been seen when this witness signed it, and the purport of the testimony of the witness is that he does not remember to have-seen it. If that was a material fact, his testimony would be wholly insufficient to overcome the facts and circumstances. The execution was made under legal direction. The attestation clause is perfect-in form and the witnesses both signed it. The parties met to have a will executed. The witness Bellows knew that it was a will from her declaration and asked if she, testatrix, had left him anything by it. The will was, therefore, fully proven under Matter of Cottrell (95 N. Y. 329); Lane v. Lane (Id. 494); Matter of Hunt (110 id. 278). Under these cases a finding against the execution of the. will could not be upheld. The positive oath of one witness, with the surrounding facts and circumstances, would prevail, as against, the failure of memory of the other witness. There is no proof whatever of undue influence in the legal sense of that term. It will not be presumed. It will not be established by irregularity; nor from the fact that the beneficiary stood in a confidential relation to the testatrix. (Matter of Smith, 95 N. Y. 516.) There is proof that the will was voluntary and perhaps excusing the inequality in this will.

A short time before the will was made, the testatrix lived with on& of her daughters, Mrs. Collin. A son, Frederick Bernsee, also lived there. A quarrel arose between mother and daughter, on account of the daughter directing this son to leave the house. The mother-said she would go with him, and she did go. There was a dispute-over a bed and bedding, which her daughters claimed. Mrs. Dono-hue, another daughter, on this same occasion, compelled the mother to open her trunk, and made her take out therefrom some blankets, and compelled the mother to go before a police officer, and then produced a bill of sale from her, for a nominal consideration, to Mrs.. Collin. The testatrix had forgotten the bill of sale, but was greatly incensed at what she supposed to be insulting to her. All friendly relations ceased between mother and daughters, and this will was. made as the mother wished to make it. The question as to the admissibility of the testimony of one of the beneficiaries, Christopher Bernsee, who was present at the execution of the will, is, under-the view I take of the case, immaterial. If improperly admitted,, no ground of reversal would be furnished. (Code, § 2544; Matter of Eysaman, 113 N. Y. 62; Matter of Smith, 95 id. 516.)

If the will was proven without his testimony, the judgment would not be reversed.

The judgment and order denying new trial should be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    Harriet M. Palmer, Appellant, v. John W. Palmer, Respondent.

      Wa/y of necessity — how extinguished,.

    A grantee of land acquires no right of way of necessity over the land of the grantor where the land conveyed can he reached through and by a public highway.
    By furnishing a shorter and more convenient entrance to lands of the grantee the grantor extinguishes a right of access over his lands.
    Appeal by the plaintiff, Harriet M. Palmer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Westchester county on the 9th day of January, 1893, after a trial before the court without a jury at the Westchester Special Term.

      Isaac M. Mills, for the appellant.

      Wm. A. Woodworth, for the respondent.
   Barnard, P. J.:

John Palmer, a resident of Mamaroneck, in Westchester county, owned a farm on Wicorn street, a public highway. There was in the rear of this farm a private family burying ground. Palmer died in 1872, leaving five children. Before his death he conveyed the then family burying ground to his three sons. The1 three sons, in 1874, conveyed to the plaintiff and her sister a small piece of land adjoining this, family burial plot, to be a burial place for them and their heirs. Susan A. Dean, one of the sisters, conveyed this small plot to the plaintiff, in 1876. There was no right of way reserved in the deed from the brothers to the two sisters, or in that from Mrs. Dean to the plaintiff. The questions presented are, was there ever a way, of necessity, or, if there was, has it been extinguished by the creation of another and more convenient way of access to the lot ? This is a question of fact, under the evidence presented, which involves an examination of the circumstances shown to have existed when the conveyance was made to the plaintiff and her sister. There was a very old burial ground called the Bloomer and Haight burial ground. On the west of this there was an old family, plot of the Palmer family,, with a path between the two plots running north and south. The plot conveyed to the plaintiff was north of the Palmer plot, and was at the end of this path, the two Palmer plots making with the Bloomer plot a substantially rectangular plot of land. Thg Bloomer and Haight plot fronted on an old lane, and had been used as a means of approach to that lot for nearly a hundred years (the Palmer plot). The Palmer plot reached the old lane at its corner only ; but in 1872 the owner built a fence around the whole plot made up of the three burial grounds, and made steps from the Palmer inclosure to the land. In 1874 the plaintiff acquired her title to the plot in question, and on the same day she conveyed her interest in the defendant’s farm, and neither deed reserved or gave any right of way to the plot. Under this state of these existing facts there was no right of way of necessity resulting to plaintiff and her sister. It was intended that the burials should be made in the plot through the lane over the stone steps, or through the Bloomer and Haight lots direct from the lane. This lane is public. It is idle to doubt the fact. It has been open and used for nearly a century to go to a public burial ground. The right of way over the Bloomer piece is not disputed by any one. The plaintiff has'a right in the Palmer plot and must approach the land in question through it, there being no connection with the defendant’s land otherwise. There are no grounds upon which a right of way of necessity can be based. The land can be reached through and by a public highway, and the piece of land was bought and sold with that local understanding. The deed of the defendant’s plot was conveyed with a right of way to it through the lane, and this small piece of plaintiff’s was but an addition to this plot in respect to burials. The way of necessity is extinguished. Some live or six years ago the defendant threw a portion of his land into the lane, opposite the south end of the Palmer lot, which enabled persons to pass to the Palmer lot without going over private property of defendant. The widening of the lane gave access sufficient for burial purposes, but without width for wagons to pass. The burials have always been made in the old burial ground by steps from the lane. "When the lane was widened so as to permit access direct from the lane to the Palmer lot, the way was shorter to defendant’s lot and more convenient. This extinguished a right of access over defendant’s, if one existed. (Holmes v. Goring, 2 Bing. [9 E. C. L.] 76; Holmes v. Seely, 19 Wend. 507.)

The' judgment should be affirmed, with costs.

Pkatt, J., concurred; DykmaN, J., not sitting.

Judgment affirmed, with costs.


text:
    In the Matter of the Judical Settlement of the Account of Henry B. Bolton and Another, as Executors, etc., of Ann Bolton, Deceased.

      Accounting — loss on sale of property — moneys paid at request — rents of machinery— rents not collected by request — when executors are not hound to collect a judgment — one executor of two estates, indebted one to the other — accounts between a testatrix and her executors.

    Executors are not chargeable with even a heavy loss on the sale of property of their decedent when the sale is at public auction, fairly made, and competition is shown to have existed at the sale.
    At the time of a testatrix’s death she owned premises and machinery thereon, which were then leased to parties named in her will as her executors and an adopted son; subsequently a large portion of the machinery was destroyed by fire and was replaced by the lessees on their own individual account. Thereafter the machinery of the estate was sold by the executors at public auction for 1592.82. In proceedings in the Surrogate’s Court for the settlement and allowance of the executors’ accounts, the fairness of the sale was questioned, but it was shown that the sale was at public auction, that many people were present, and that there was competition at the sale, which was found by the surrogate to have been fairly conducted. The machinery was mainly bought by the adopted son of the testatrix, and it was used afterward, with the firm machinery, in a ne,w business by the executors and the adopted son of the testatrix. The executors, when testifying before a commissioner, had proven the value of the entire machinery to be upwards of $90,000, and at this value put upon the machinery, separating the new from the old, the estate machinery was worth up wards of $50,000. There being no evidence that the property sold was of greater value than the amount paid for it, the sale was sustained by the surrogate.

      Held, that there is nothing upon which an appellate court could say the finding: was erroneous.
    Money paid by members of a firm to third persons at the request of a testatrix, who by her will appointed the members of such firm her executors, is properly allowed them upon their accounting as such executors.
    Where machinery claimed by an estate is taken by a third party under a claim of title, and an arrangement is thereafter made by which the machinery is secured to the estate, the executors are not responsible for the rent thereof from the time of such taking until the making of such arrangement, although the machinery was used by the firm of which they were members while such machinery was in the possession of such third party.
    Where a testatrix requests her tenants not to collect rent of certain of their subtenants, but to charge her with the amount of the same, such tenants, upon their accounting as executors of the estate of the testatrix, are properly credited with the amount of the rent reserved in their lease with such sub-tenants and not collected by them.
    Where a mortgage is given by a husband to a party by whom it is assigned to the wife, without consideration, merely to protect the title to the land as against creditors of the husband, a deficiency Judgment recovered upon the foreclosure of the mortgage by the wife against the executors of her husband’s estate, is not a debt which the executors of the wife can or are bound to collect.
    Though the same person be executor of two estates, one of which is indebted to the other, upon his accounting as executor of the estate of the creditor he cannot be charged with moneys shown to have been paid to him as executor of the indebted estate.
    An account between a woman and the firm who acted as her agents, two of the members of which firm were afterwards appointed her executors, was examined and settled by her without any voucher being produced in support thereof.

      Held, that upon the accounting of her executors, the account was good evidence against the deceased.
    Appeal by Mary A. Littlewood and Sarah L. Myers, two of the devisees and legatees named in the last will and testament of Ann Bolton, deceased, from a decree entered in the office of the surrogate of the county of "Westchester on the 11th day of November, 1892, judicially settling and allowing the accounts as adjusted, of the executors of Ann Bolton, deceased.

      Ann Bolton died in September, 1892, leaving a will, and naming therein as her executors, Henry B. Bolton and Thomas Bolton. Her husband, Thomas Bolton, Sr., died in January, 1879.
    The Bronx Company, a copartnership composed of the two executors named in the will of the testatrix, and "William H. Birchall, the adopted son of the testatrix, acted as agents and bankers for the testatrix from March, 1880, until the time of her death.
    The evidence tended to show that during her lifetime, at her request, the Bronx Company paid various sums to Mrs. Leggett, J. L. Wells and J. W. Colwell.

      It was shown upon the accounting of the executors, in the Surrogate’s Court, that the testatrix leased to the Bronx Company a certain part of her real estate, including certain machinery, which lease was to expire on the 1st day of March, 1895. While the lease was still in force, the¡ city of New York acquired title to these premises, and in 1889, a final order was entered, confirming the talcing of the property. The executors, as such, presented proofs to the commissioner appointed to fix the damages, who made an award, and the Bronx Company still continued to occupy said premises, with the machinery, and thereafter the executors claimed the machinery, but they were unable to remove it, as the city authorities took the position that the value of the machinery having been proved upon the condemnation proceedings, it was virtually a fixture, and as such, passed with the real estate. Shortly before its sale, an arrangement was made whereby the estate obtained the machinery.
    The rents of the coal yard were not collected by the Bronx Company, during the lifetime of the deceased, from Birchall & Son, at the request of the deceased. The property covered thereby was leased, with other property, by the deceased to the Bronx Company. The Bronx Company credited the deceased, in their accounts, with the full amount of the rent, and charged her with the rent of the coal yard property, which, at her request, they refrained from collecting from Birchall & Son.
    The judgment recovered February 11, 1880, by the deceased against Henry B. Bolton, as executor of Thomas Bolton, was upon the foreclosure of a mortgage given without consideration, by Thomas Bolton, deceased, to William IT. Birchall, and by him assigned, without consideration, to Ann Bolton; which mortgage was intended to be used to protect the title of said Thomas Bolton, deceased, to the real estate covered thereby, and which he devised to his wife, Ann Bolton. Such judgment was recovered in a suit to protect said title, and the deficiency was not a bona fide debt due to Ann Bolton, deceased, from said Thomas Bolton, deceased.
    It was also shown that one E. Brooks left a legacy to the husband of the testatrix, of whose estate, Henry B. Bolton, one of the executors of testatrix, Avas the executor, and that such legacy, or money on account thereof, Avas in the possession of the Bronx Company, and that the Bronx Company kept an account of their dealings with the testatrix, which accounts she had opportunities of examining.

      James R. Marvin, for the appellant.

      Alex. Ihain, for the respondent.
   Barnard, P. J.:

Ann Bolton died in 1882. She owned at her decease real estate in Bronxville, Westchester county, N. Y. The two executors and Wm. N. Birchall, an adopted son, held a lease from the deceased for these premises for ten years from March 1, 1880, ata yearly rent of $4,500. On these premises the lessees had carried on a bleaching business. There was machinery on the premises which went with the land. The city of New York took the land for public uses in 1889. In 1881 a large part of the machinery was destroyed by fire, and the lessees replaced this machinery on their own account. The executors sold the machinery of the estate at public auction in August, 1891, for $592.82. It Avas a serious question on the trial whether this sale Avas fair. The property was mainly bought at this sale by the adopted son of deceased, William N. Birchall, and it Avas used afteiwards AAÚtli the firm machinery proper in a neAv premises at West Fordham, by the executors and Birchall, as partners. The executors, before the commissioner, had proven the Aralue of the entire machinery proper at upAvards of $90,000.

At the value put on the machinery, and separating the new from the old, the estate machinery was worth upwards of $50,000. On the other hand, the old machinery had to be sold separate. It Avas sold at public auction where there Avere many people, and there was competition shown on the sale. The value before the commissioner was of an entire equipment of a business. The detached machinery would of necessity lie so much reduced in value as to call for a very large loss. The surrogate has found the sale to have been fair and that under the proof there was no evidence that it was of greater value than was paid for it. There is nothing upon which an appellate court can say the finding is erroneous. Secondhand machinery which has been through a fire, and is only made useful by additions which couid not be sold with it, is of not much use, except in the same business and to those who own the new part, which give any values to it. The money paid Mrs. Leggett, J. L. Wells and J. W. Colwell was properly allowed; they were paid in the lifetime of testatrix, at her request, by the firm. The rent of the machinery after the land was taken was properly disallowed. It was, probably, property of the city of New York. The heirs seem to have got an award for it and then claimed the machinery. It was only by an agreement with the city that" the estate got the machinery, and that was just before the sale of it by the executors. The rents of the coal yard were properly allowed. This yard was rented to the bleaching firm, and at the request of deceased the rents from it were not collected by the firm. She should pay the rents not collected at her request. The mortgage given by Thomas Bolton, the elder, to Birchall, and by him assigned to Ann Bolton, was given merely to protect the title to the land as against creditors of Thomas Bolton. The deficiency on the foreclosure by Ann Bolton against her husband’s executors is not a debt which the executors of Ann Bolton either could or were bound to attempt to collect.

The executors of Ann Bolton cannot be made chargeable with the legacy of E. Brooks to Thomas Bolton, senior. The elder Bolton’s estate had been settled and the items had no proper place in this estate. The account between the firm who acted as agents of Mrs. Bolton in her lifetime, was good evidence as against the deceased when examined and settled by her, without other voucher.

The decree of the surrogate should, therefore, be affirmed, with costs. »

Pbatt, J., concurred.

Decree affirmed, with costs.


text:
    Theodore H. Silkman, Appellant, v. The Board of Water Commissioners of the City of Yonkers, Respondent.

      Water rents — not a tax.

    A water rent, established and collected by a board of water commissioners, directed by the act under which it was incorporated, to establish a scale of rents called water rents, payable in advance or upon a stated term of credit, and authorized to cut off the supply of water if such rents are not paid, is not a tax. *
    Appeal by tbe plaintiff, Theodore H. Silkman, from a judgment of the Supreme Court in favor of the defendant, adjudging the plaintiff not entitled to the injunction issued in this action on September 27, 1890, entered in the office of the clerk of the county of Westchester on the 8th day of May, 1893, upon a decision of the court rendered at the Westchester County Special Term.
    The board of water commissioners of the city of Yonkers furnished water to Theodore H. Silkman and presented certain quarterly bills to him for the amount apportioned as a burden against the premises owned by him. With each bill presented to Silkman, he received notice that if such bill was not paid within thirty days, his supply of water would be cut off. Prior to September, 1890, he paid all the bills so presented to him, but under protest.
    On September 1, 1890, a bill was presented by the board of water commissioners to Silkman for' four dollars and sixty cents for water furnished to liis premises, and payment thereof was demanded, the board threatening that unless such bill was paid before October 1, 1890, the water supply would be cut off from plaintiff’s house.
    Thereupon plaintiff brought this action' to recover the amounts theretofore paid by him under protest to such board of water com-misssioners, and to restrain such board from cutting off his supply of water, and obtained a temporary injunction, restraining the board from cutting off or interfering with Silkman’s supply of water.
    Upon the trial, judgment was rendered in favor of the defendant, adjudging that the plaintiff was not entitled to the pending injunction.

      William P. Piero, for the appellant.

      Joseph F. Daly, for the respondent.
   Barnard, P. J.:

The water rates are not taxes. The act under which the defendant was incorporated, chapter 30, Laws of 1873, directs the commissioners to establish a scale of rents payable in advance or- upon a stated term of credit to be called water rents. The board was authorized to cut off the supply of water if these rents were not paid. There is no basis for terming these water rents a tax. (Provident Inst., etc., v. The Mayor, 113 U. S. 506; Treadwell v. Van Schaick, 30 Barb. 444.)

The commissioners did fix the rates, and it was supplied and paid for, but under a protest on account of his receiving no notice of the levying of a tax on the land. There is no lien on the land for water furnished and not paid for. There will be a tax on land for a deficiency to meet the purpose of the act, and when this tax is laid it will be upon notice.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    Sarah M. Quibell, Respondent, v. John A. Morris, Appellant, Impleaded with Others.

      Action to set aside a deed, — proper pa/rties — statement of a cause of action.

    In an equity action, brought for the purpose of setting aside a deed, given to a trustee as security against any possible claim that might be made by a person therein designated, after the death of such person, all her heirs at' law and all persons who claim under the deed are proper parties to the action.
    An averment in such an action that certain parties “have or claim some interest in the premises in question” is a sufficient statement of a cause of action.
    Appeal by the defendant, John A. Morris, from the interlocutory judgment of the Supreme Court in favor of the plaintiff, overruling the demurrer of the defendant, John A. Morris, and entered in the office of the clerk of the county of Westchester on January 25, 1893.
    The complaint alleged that the defendants, John A. Morris and others, have or claim to have some interest in the premises in question. There is no other allegation in the complaint in regard to Morris or his interest in the property.
    Morris appeared in the action and demurred to the complaint on the ground that it did not contain facts sufficient to constitute a cause of action.

      G.E. Goddington and-Alfred B. Gruikshcmk, for the appellant.

      Rufus I. Boott, for the respondent.
   Barnard, P. J.:

The complaint states that the plaintiff was the owner of section A ” of a farm of land in Westchester county called the “Wetherby Farm ” in a partition map on file in the Westchester county clerk’s office. That he was also the owner of another part of said section “A ” which was subject to a life estate of the mother of plaintiff. That this life estate was held by one Rust as trustee for the plaintiff’s mother. That she agreed to convey the life estate to the plaintiff, which was done under an agreement between the plaintiff, her mother and the trustee, that the plaintiff should convey the first part of section “A ” above named to Rust to hold in trust during the life of the mother as security against any claim she might make on account of her life interest in the parcel in which she had a life estate and which she requested Rust to convey to the plaintiff. This deed given by plaintiff to Rust was to have no effect after the life estate fell in, but was then to revert to plaintiff. The mother is dead and the plaintiff seeks to have her title established in the piece given to Rust, trustee, by her. All the heirs at law of the plaintiff’s mother are made parties. The complaint makes John A. Morris a party defendant under the statute ; alleging that he has or claims to have some interest in the property. Morris was properly made a party. The action is one in equity to set aside a deed given as security to .a trastee against a possible claim to be made by his beneficiary because he, the trustee, had conveyed away his life estate at her request without any consideration. The heirs at law and all persons who claim under the deed td the trustee, are properly made parties. The question has recently been considered by the Court of Appeal in Townsend v. Bogert (126 N. Y. 370). The court held in that case that an averment that certain parties “ claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff and which is a cloud upon the -title to said premises,” was„a sufficient statement of a cause of action upon a demurrer.

The order and judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred; Dykman, J"., not sitting.

Judgment overruling demurrer to complaint affirmed, with costs.


text:
    Jane Ann Hulse, as Administratrix, etc., of Charles Hulse, Deceased, Appellant, v. The New York, Ontario and Western Railroad Company, Respondent.

      Negligence — cct/re in unloading a car — duty of a rwih'oad company to third parties.

    A railroad company is not bound to so load its cars that no accident can happen in unloading them.
    In an action brought by an administratrix to recove»- the damages caused by an accident resulting in her intestate’s death, it was shown that a third person was erecting a creamery on the lands of the defendant, a railroad corporation, at his own expense; that the lumber was delivered to him and his builder, who was erecting the building under a contract. The contractor and his employer took possession of the car, and proceeded to unload from the car the lumber, which was held in place by stakes, fastened on the top by crosspieces. In unloading the lumber the contractor had all of the stakes and crosspieces removed, wliereirpon the lumber fell on the plaintiff’s intestate, causing his death.
    Upon the trial of the action the plaintiff was nonsuited.

      Held, that the plaintiff was properly nonsuited on the trial, the cars having been properly loaded and the company owing no duty to the deceased in respect thereto.
    Appeal by the plaintiff, Jane Ann Hulse, as administratrix, etc., from a judgment of nonsuit in favor of the defendant, entered in the office of the clerk of the county of Orange on the lJth day of November, 1892, and also from an order denying plaintiff’s motion for a new trial made upon the minutes.

      W. F. O’Neill, for the appellant.

      William Vcma/mee, for the respondent.
   Barnard, P. J.:

The facts in this case are substantially uncontradicted. The defendant company received a carload of lumber consigned to one of its engineers. One Berry was erecting a creamery on the company’s lands at his own expense. The lumber was delivered to Berry and his builder, one Terwiliiger. They took possession of the carload of lumber, and Terwiliiger, who was building by contract with Berry, proceeded to unload the lumber from the car. It was held in place by four stakes, two on each side, and these stakes were fastened on the top by crosspieces. Terwiliiger commenced to unload by removing all these stakes and crosspieces both sides. The man on top' of the lumber, one of Terwilliger’s men, removed these stakes and the lumber fell on the plaintiff’s intestate, causing his death. Tim lumber was piled in separate piles in the car and there was nothing to hold one pile to the other piles when the stakes were removed, and this is the only fact on which the plaintiff alleges negligence in the company. The nonsuit was properly granted. The lumber was piled safely and was securely bound together until the contractor destroyed this security. The company were not bound to so load its cars that no accident could happen in unloading them after the stakes were removed. The piling was plainly to be seen and it was the height of imprudence not to notice the fact that a pile of boards, as high as this was piled, was liable to fall over if it was left without support. The company owed no duty to the deceased. Terwiliiger was the contractor and he must respond to him. (Hexamer v. Webb, 101 N. Y. 377; McAlpin v. Powell, 70 id. 126.)

The case is not like Thomas v. Henges (131 N. Y. 453). There the defendant owed a duty to keep a derrick on a dock in safe condition, and he failed to do so. It was a dock free for those who had business, to moor at and unload by means of this derrick. The derrick was left unsafe and broke, and the owner was held liable to the party injured, although he had not any particular interest in the load which was being delivered at the dock.

No negligence was proven, and the deceased is not shown to be free from contributory negligence, even if the owner owed her a duty in respect to the unloading of the car.

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

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    Henry W. Sage and Others, Appellants, v. Andrew R. Culver and Others, Respondents.

      Action for accounting — rights of ininority stockholders — allegation of misappropriation— demand that a corporation Tiring an action.

    While a minority stockholder, in the absence of waste, mismanagement or fraud, has no standing as an individual, yet a complaint which alleges a general misapplication of the funds by persons who have obtained control of the corporate management states a cause of action.
    An allegation that the managers of a corporation have taken sums of money from its treasury for themselves, for money loaned, for improvements not made then, nor made for several years thereafter, and in fact paid out of the ordinary revenues of the company, is a direct charge of misappropriation for which there is no legal justification.
    The minority stockholders of a corporation have a right to require a financial statement from it.
    Where a corporation is under the control of alleged wrongdoers it is unnecessary for a stockholder to demand that an action alleging a misappropriation of its funds be brought by the company.
    Appeal by the plaintiffs, Henry W. Sage, Dean Sage and William H. Sage, from a judgment of the Sujxreme Court in favor of the defendants, entered in the office of the clerk of the county of • Kings on the 13th day of February, 1893, and from an order sustaining the defendants’ demurrer to the complaint, entered in said clerk’s office of the county of Kings on the 3d day of January, 1893.

      William C. De Witt, for the appellants.

      Geo. W. Wingate, for the respondents.
   Barnard, P. J.:

The Prospect Park and Coney Island Railroad Company was organized in 1874, and operates a railroad from the city of Brooklyn to Coney Island. The defendant Culver is the president, and the defendant Washington the treasurer thereof. The complaint states that in 1879 the capital stock was $500,000 in amount, of which the plaintiffs owned $50,000. That there then existed a first and only mortgage of $500,000. That in 1880 the capital stock was reduced by an issue of income bonds to the extent of one-half his stock. In 1886 the company sold a part of its line for $420,000 secured by a mortgage due January 1, 1895. The-defendants Culver and Washington then proposed to create a new mortgage on the part of the line wanted for $500,000, and with the proceeds to pay a debt to defendants Culver and Washington; to pay the $80,000 needed with the $420,000 mortgage; to pay in full the $500,000 first mortgage, and to leave the balance of $170,000 in the treasury of the company for improvements. Three hundred and ninety thousand dollars of bonds were issued under this project. The defendants Culver and Washington owned a large majority of the stock of the company and have always controlled its management. The plaintiffs were opposed to the second mortgage of $500,000. The company has apparently done a prosperous business, which the plaintiffs believe to have been sufficient to pay dividends upon its stock, especially after the sale of the portion of its line for $420,000, but it has never paid a dividend on its stock or any interest on its income bonds. The company leased a small road built by the New York and Coney Island Railroad Company, of which the defendant Cul-ver was president, and the defendant Washington the treasurer, for $10,000 a year, which did not cost more than $50,000. The defendant company has refused to give the plaintiffs information as to its management. The company has refused to show its books to the plaintiffs. A new mortgage of $200,000 was authorized by the stockholders in 1891, for the purpose of paying off the floating debt. The company refuses to give any information about, this floating debt. Culver and Washington state that the $250,000 which they paid themselves out of the treasury of the company was for a loan by them to 'the company for certain improvements which were not in fact made until several years after that date. Culver, Washington and the plaintiffs own the entire stock and income bonds, with the exception of a slight fraction, and Culver and Washington have the exclusive control of the road and its management. The complaint states a cause of action. While a minority stockholder in the absence of waste, mismanagement or fraud has no individual standing, the complaint does charge a general misapplication of the funds by two persons who have obtained control of the corporate management; that the company has done business sufficient to pay dividends, and it has not done so; this, of itself, would not be sufficient to make a cause of action; but the managers admit that they have taken $250,000 from the treasury for themselves for money loaned for improvements which were not then made, nor were they made for several years thereafter, and which were, in fact, paid out of the ordinary revenue of the company, so that the admission of the averment asserts a direct charge of misappropriating the proceeds of a loan which the company made under the management of the president and treasurer, and that there was no legal justification of the act. Assuming all the facts in the case in connection with this charge, there is a case made for an accounting. The minority stockholder should have the light to require a statement from the company. (Robinson v. Smith, 3 Paige, 221.) it is not necessary to demand that the company bring the action, as the company is still under the control of the alleged wrongdoers. (Brinckerhoff v. Bostwick, 88 N. Y. 52.)

• The order sustaining the demurrer to the complaint and the interlocutory judgment therein should he reversed, and the demurrer overruled, with costs, the defendants to have the right to answer in twenty days, on payment of costs of demurrer and of appeal.

Pratt, J., concurred.

Order sustaining demurrer to complaint and judgment therein reversed, with costs, and demurrer overruled, with leave to defendants to answer on payment of costs.


text:
    Julia Morris, Respondent, v. John Morris, S. Marie Morris and Marie S. Crowe, Appellants.

      fraudulent conveyance — evidence sustaining a finding of fraud — personal property applied on a judgment — a sheriff not the agent of the judgment creditor — inadmissible evidence.

    In an action brought by a judgment creditor to set aside a deed given by his debtor, as being a fraudulent conveyance, the evidence upon the trial showed that the plaintiff’s judgment was recovered on October 6, 1890; that on September 20, 1890, the judgment debtor conveyed a piece of land to his mother-in-law, who lived with him; that prior to the twentieth of September (and in the presence of the grantee) the judgment debtor was told it was best “ to put everything out of his hands,” to which he replied that “he supposed it would be a good thing.” No money was paid for the deed; the pretended consideration was eighty acres of land in Kansas, which the debtor had never seen, worth §1,000. The farm was worth $5,000, and was mortgaged for §1,500 only.
    The trial eourt found the deed to have been fraudulently given and taken.

      Held, that the evidence sustained the finding.
    In such a case, after the recovery of a judgment, the plaintiff became possessed of certain articles of personal property belonging to the debtor, which property plaintiff testified was not worth ten dollars, and another witness that it was not worth twenty-five dollars. The trial judge found the value of such property to be seventy-five dollars, and deducted it from the judgment debt.

      Held, that the inquiry as to the value of the personal property was necessary to determine what was equitable between the parties, and that this finding afforded no cause to reverse the judgment as to the fraudulent character of the deed. ,
    A sheriff with an execution is not the agent of the judgment creditor, upon whose judgment the same was issued, and, therefore, proof of a conversation between him and the judgment debtor is properly excluded under the objection of the judgment creditor.
    Appeal by the defendants, John Morris, S. Marie Morris and Marie S. Crowe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 13th day of November, 1892, upon a decision of the court rendered at the Rockland Circuit after a hearing before the court without a jury, and from an order appointing a receiver of the premises described in the said judgment, entered in said clerk’s office on the same day.
    The defendant John Morris, sworn as a witness on his own behalf, testified on his re-direct examination as follows:

      “ I know John F. Shanlcey, the sheriff of Rockland county. He spoke to me about having an execution on the judgment that my mother obtained.
    “ Do you remember what you told him ? [Objected to as incompetent and irrelevant. Objection sustained. Exception taken.] ”

      G. Z. Snider, for the appellants.

      Arthur S. Tompkins, for the respondent.
   Barnard, P. J.:

The plaintiff is a judgment creditor of John Morris. The judgment was recovered on the 6th of October, 1890. On the 20th of September, 1890, the judgment debtor conveyed a farm of land of about lifty-one acres to the defendant Marie S. Crowe, by deed in which his wife joined. The plaintiff’s execution was returned unsatisfied, and this action is brought to set aside this deed as fraudulent. The defendants aver that there was sufficient personal property to pay the execution issued by plaintiff, and that the sale was made in good faith by the debtor of the farm, and for an adequate consideration. The trial court found the deed to have been fraudulently given and taken. The evidence sustains the finding. The plaintiff had brought her action to recover the judgment which she did obtain, and that in September previous the debtor was told that it was best to put everything out of Ms hands,” to which he replied that “ he supposed it would be a good thing.” This was in the presence of the grantee, Marie S. Crowe. Mrs. Crowe was the mother-in-law of the debtor, and lived with him and his -wife. No money was paid for the deed. The pretended consideration was eighty acres of land in Kansas. The debtor had never seen the land there, and it was worth $1,000. This, if true, would make out no adequate consideration for the farm worth $5,000, with a mortgage on it of $1,500 only. The case is a clear one where a debtor interposed a title between his property and his creditor, to hinder, delay and defraud the creditor. After the recovery of the judgment by plaintiff, she became possessed of certain articles of personal property belonging to the debtor. The proof is not very clear what this property was, nor what was its value. It was proven by plaintiff nofeto have been worth twenty-five dollars, by one witness, and tbe plaintiff testified that it was not worth ten dollars. The trial judge found the value to be seventy-five dollars, and deducted it from the judgment debt. The debtor has no cause from this finding, and under this proof, sufficient to reverse the judgment as to the deed. The proof of a conversation between the defendant and the sheriff was properly rejected. The sheriff was not a party to the action, and was in no respect the plaintiff’s agent, because he had in his hands an execution on her farm against the judgment debtor.

The inquiry as to the value of this personal property was necessary to determine what was equitable between the parties. It would have been inequitable to set aside the transfer in favor of a plaintiff who liad in her hands personal property of the debtor, without applying the value of the same upon her debt.

The judgment should be affirmed, with costs.

Pka.it, J., concurred.

Judgment affirmed, with costs.


text:
    James O’Shaughnessy, Appellant, v. The Morning Journal Association, Respondent.

      Action for libel — repetition of injurious words us spoken by another-— lohat constitutes a libel.

    The repetition of injurious words as having- been spoken ky another is a libelous publication, as much so, if maliciously published, as if the direct charge had been made.
    In an action to recover damages for the publication of an alleged libel, the complaint sets forth an article published by the defendant to the effect that the plaintiff, a detective officer, joined in the pursuit of an escaped prisoner, and, upon the prisoner’s capture, struck him with such force that he dropped like a log, and was handcuffed before he recovered, and douched with cold water; that the spectators cried shame and called the plaintiff a big brute; that there was no sufficient cause for such rough treatment, and that the capture could have been made without such a free use of the officer’s fists; which publication was charged to be false and to have been maliciously published and composed by the defendant of and concerning the plaintiff.
    Upon the trial the plaintiff’s complaint was dismissed on the ground that the article was not libelous even if it was false and was published maliciously.

      Held, error; that the facts alleged in the complaint, if false and published maliciously, constituted a libel.

      Appeal by tbe plaintiff, James O’Shauglmessy, from an order of tbe Supreme Court dismissing plaintiff’s complaint, made on tbe 7th day of March, 1893, jit tbe Kings County Circuit, and entered in tbe office of tbe clerk of tbe county of Kings.
    Tbe action was brought to recover damages for an alleged libelous article published in defendant’s newspaper. Upon tbe trial, before tbe plaintiff had opened bis case, tbe defendant’s attorney moved to dismiss tbe complaint on the ground that it did not state facts sufficient to constitute a cause of action, which motion was granted.

      Chas. J. Patterson, for tbe appellant.

      B. P. Hmstewi and Henry Yonge, for tbe respondent.
   Barnard, P. J.:

Tbe complaint set forth an article published by the defendant of and concerning tbe plaintiff, which was sufficient to carry tbe case to tbe jury. Tbe charge in tbe article is to tbe effect that the plaintiff, a detective officer, joined in tbe pursuit of an escaped prisoner in Brooklyn. That tbe plaintiff, upon tbe capture of tbe prisoner, struck him with such force that be dropped like a log and was handcuffed before be recovered, and douched with cold water. That the -spectators cried shame and called tbe plaintiff a big brute. That there Avas no sufficient occasion for this rough treatment. That tbe captured prisoner was tossed bodily into a van. That tbe capture could have been made without such a free use of the officer’s fists. This is charged to be false and to have been maliciously published and composed by tbe defendant of and concerning tbe plaintiff. For tbe purposes of this appeal tbe publication must be assumed because the complaint was dismissed because tbe article was not libelous even if it was false and was published maliciously. If false and if it was maliciously published, is it libelous? We entertain no doubt but that it was a libel. The words bold up tbe plaintiff to obloquy and contempt. They reflect upon tbe plaintiff’s business and bis management of it. The charge of being a brute in his business is in legal effect directly charged and published because tbe repetition of injurious words as having been spoken by another, is a libelous publication as mucli so if maliciously published as if the direct charge had been made.

The exceptions should be sustained and a new trial granted, costs to abide the event.

DyKMAN, J., concurred; Pbatt, J., not sitting.

Exceptions sustained, and judgment reversed, and new trial granted, costs to abide event.


text:
    Thomas F. Oakes, Appellant, v. Edward F. De Lancey, Respondent.

      Lands between high and low-water mark — description in a deed — lands running along the shore.

    Land between high, and low-water mark is conveyed where the property is situated on a sound, and is described in the deed as running along the shore, even though the land under water is not in express terms conveyed.
    Appeal by the plaintiff, Thomas F. Oakes, from a judgment of the Supreme Court in favor of the defendant, entered upon a decision of the court, rendered at the Westchester County Circuit, on a trial before the court without a jury, and entered in the office of the clerk of the county of Westchester on the 10th day of December, 1892.

      Artemas H. Holmes, for the appellant.

      Martim, J. Keogh for the respondent.
   Barnard, P. J.:

On the 4th of June, 1890, the defendant conveyed to the plaintiff a piece of land said to contain about twenty-two and a half acres.

The land was situated on Long Island Sound, and nearly four acres of the parcel was between high and low-water mark. The land was sold by the acre at public auction, and was sold at a large price by the . aero. The plaintiff objected to the land under water being included in the deed, on the ground that the description did not include it. This claim was made the basis of an action, and it was decided that the land under water was included hi the description. (Oakes v. De Lancey, 133 N. Y. 227.)

This action is based upon the allegation that the defendant has no title to the lands between high and low-water mark. The evidence shows that the premises are part of what is known as the East or Mamaroneck Neck. This, with two other necks of land adjoining, was conveyed to John Biclibell in 1662 by the Holland provincial government, and by the English colonial in 1668. The English patent conveys all “ woods, beaches, marshes, pastures, creeks, waters, lakes, fishing, hunting and fowling.”

This description is carried into the manor of Scarsdale by a grant of the English sovereign, in 1701, to Caleb Heathcoate, who had bought the land, and the description is in this grant widened so as to include bays and harbors, as well as beaches, and included the shore. This title is unbroken down to the conveyance to the defendant, in 1871. It is true that the deed to the defendant does not, in terms, convey the land under water, or even use the words of the colonial grants, but it is admitted by both parties, and is proven by the evidence, to be the same premises as are described in the patents. The plaintiff’s claim is mainly, if not entirely, based upon the description of the deeds from the immediate grantor to the defendant, one Shepherd. This description is “ along the shore.” If the word “shore” in the patents included the strip between high and low-water mark, the description in the defendant’s deed will go to low-water mark to fill the requirements of a deed which reserved nothing. The Court of Appeals has decided that the word “ shore ” includes lands washed by the sea, and between high and low-water mark. (Trustees of East Hampton v. Kirk, 68 N. Y. 459.)

A shore must always have a definite limit on the seaboard.

The judgment should be affirmed, with costs.

Pratt, J., concurred; DykmaN, J., not sitting.

.Judgment affirmed, with costs.


text:
    Adele M. A. Hatfield, Plaintiff, v. James W. Malcolm and Another, Defendants. The New Amsterdam Real Estate Association, Appellant.

      Foreclosure — proper party — order for the publication of a summons —affidaMt therefor, and of publication — order of reference — presumption that a referee took the oath.
    In an action brought for the foreclosure of a mortgage, although the mortgagee has knowledge that the record owner of the title intends to convey the property to a third person, such third person is not a proper party to the action.
    An order for the publication of a summons is based upon sufficient evidence where the sheriff certifies that he has diligently attempted to serve the defendant within the county in which he formerly resided, and it is shown by affidavit that inquiry has been made of his father with whom he had resided, resulting in the information that he was in another State, and that subsequent information was obtained from a brother of the defendant to the effect that the defendant was, some days before, at a certain place within this State, naming the place, where he could be found, but that he could not be found there, and that his father and brother would give no further information as to where he could be found.
    An order for the publication of a summons need not contain the option that personal service out of the State may be made personally.
    An affidavit of publication of the summons is sufficient if it shows either that the same was published for seven successive weeks from one specific date to another specific date, both inclusive, or that the same was published in a weekly paper seven successive times, beginning at a specified date.
    In a foreclosure action an order of reference is in due form where it directs the referee to examine the plaintiff as to the truth 5f the allegations of the complaint, when the complaint averred that no payments had been made, and the plaintiff was examined and so testified before the referee.
    Where in an action to foreclose a mortgage some of the defendants are absentees, and it does not appear by the papers whether the referee took the official oath, the presumption is in favor of the performance of his official duty.
    Appeal by the New Amsterdam Real Estate Association, from an order entered in the office of the clerk of the county of "Westchester on the 14th day of January, 1893, denying said association’s motion to vacate a judgment entered in this action in favor of the plaintiff.
    The action was brought to foreclose a mortgage, and an order of publication was obtained directing the service of the summons upon certain of the defendants by the publication thereof in two weekly newspapers, each published in Westchester county, one affidavit of publication stating that the publication had been made once in each week for six (seven times) weeks successively from July 15, 1892, to August 26, 1892, inclusive, next preceding the day of sale specified in said notice, the other affidavit stating that it had been made once in each week for six (seven times) weeks successively, commencing July 16, 1892.
    The sheriffs certificate, upon which, with other papers, such order of publication was obtained, was as follows:
    “I, John Duffy, Sheriff of "Westchester County, New York, do hereby certify that on June 25, 1892, two copies of the summons and complaint in this action were delivered to me by the plaintiff’s attorney herein, Henry T. Dykman, with instructions to serve the same upon the defendants, James W. Malcolm and Mary, his wife; that I have made diligent efforts to find said defendants within the County of Westchester and serve the said summons and complaint upon them, but I have been unable to find them therein.
    “ In witness whereof, I have hereunto set my hand this 12th day of July, 1892.
    “JOHN DUFFY,

      “Sheriff”

      John, 3. Olwpp, for the appellant.
    No one appearing for the respondent.
   Barnard, P. J.:

The plaintiff, on the 15th of March, 1892, conveyed certain property in Westchester county to the defendant James W. Malcolm. Malcolm gave back a mortgage for a large part of the purchase money, payable by installments. The mortgage provided that upon a default in the payment of any installment, the plaintiff was empowered to sell the premises, and out of the proceeds to pay the mortgage debt. A default was made on the 15th of June, 1892, in the payment of $6,000 then due, and the plaintiff foreclosed and sold the property, and bid it in for her debt. Soon after the sale by the plaintiff to Malcolm, he sold the property to the Amsterdam Beal Estate Association. This deed was not recorded when the foreclosure was instituted. Malcolm was the manager for the real estate company, and pending the foreclosure, this company was fully informed of the proceedings, and took no action in respect to being made a party defendant, but continued to negotiate for delay, and the objection now made that the company should have been made a party defendant, is without force. No deed was on record. Malcolm was its trustee, and a knowledge that he intended to convey to the company would not have justified the plaintiff in making the company a party until the deed was given.

The order for the publication was based upon sufficient evidence, and was in due form. The sheriff could not find either Malcolm or his wife in Westchester county. He had lived with his father at Mount Pleasant. Inquiry therein, resulted in information that young Mr. Malcolm had gone to Tennessee; this was in June, 1892. In July, 1892, one of Malcolm’s brothers informed the plaintiff’s agents that his brother was at the races at Monmouth Park on the 4th of July, 1892, and he could be found, probably, at Munden’s Cafe, Sixth avenue and Thirtieth street. He could not be found there. Neither his father or his brother could give information where he could be found. The papers show an extreme effort to serve him with the papers in the State, and fairly justify an inference that he was evading service by absence from the State, or by concealment within it. ■

The order need not contain the option that a personal service out of the State -be made personally.

The case of Ritten v. Griffith (16 Hun, 454), does not so hold. There, a personal service out of the State was made without an order of publication, and such a service was held void. ‘The affidavit of publication in the Westchester Goimty Reporter was sufficient. It had a summons annexed to it which was proved fo have been published seven successive weeks from July 15, 1892, to August 26, 1892, both inclusive. The affidavit of publication in the Eastern State Journal is to the effect tha( an annexed summons had been published seven successive times, beginning July 16, 1892. The order of reference was not jurisdictive, and is in due form. It directed the referee to examine the plaintiff as to the truth of the allegations of the complaint. The complaint averred that there were no payments, and the plaintiff was examined and so testified before the referee.

' As to the fact whether the referee took the official oath, the papers are silent. The presumption is in favor of the performance of official duty.

The order should, therefore, be affirmed, with costs and disbursements.

Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.