text:
    In the Matter of the Probate of the Last Will and Testament of Stephen Townsend, Deceased.

      Probate of will — testamentm'y capacity.

    It is essential that a testator have sufficient capacity to comprehend perfectly the ' condition of his property, his relation to the persons .who are, or should, or might he the oh j ects of his bounty, and the scope and hearing of the provisions of his will. He must have a sufficiently active memory to collect in his own mind, without prompting, the particulars or elements of the business to he transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to he able to form some rational judgment in relation to them.
    Appeal by the contestants, Coleman S. Townsend and others, from a decree of the surrogate of Putnam county, entered in the office of the clerk of the Putnam County Surrogate’s Court on the 14th day of September, 1893, admitting to probate an instrument alleged to be the last will and testament of Stephen Townsend, deceased.

      Eugene B. Trmis, for the contestants, appellants.

      Olayton Ryder and Geo. E. Anderson, for the proponents,, respondents.
   Pratt, J.:

This is an appeal from a decree of the surrogate of Putnam county, admitting to probate the will of Stephen Townsend, deceased. The appellants contested the probate of the will, claiming that the will was not testator’s free act; that he was not capable of making a will, and was not of sound- mind, and that the will was not executed as required by law. The proof of the due execution of the will was ample, and we see nothing to criticise either in the admission or rejection of evidence by the surrogate. His rulings seem to us to have been correct.

The only questions remaining for our consideration are : Eirst, was the testator unduly influenced to make the will; and, second, had he mental capacity to make the 'will.

As to the first, it is sufficient to say that there was not only no proof of any influence, but positive evidence from the one who drew the will, the husband of decedent’s granddaughter, that the deceased asked him to draw it, and stated that he had made advances to certain of his nine children, giving the amount advanced to each, •and wished to divide his property among them so that each should be charged with what he or she had received, and so all share equally. Accordingly Parker drew the will, and explained to the testator how the different proportions were arrived at. There was no evidence to show what sums the testator had advanced to each of his children, and in the absence of such evidence, and the testimony of Parker, it may be presumed that the disposition of the testator’s estate was ¡not an unequal one.

A more serious question is that of testator’s capacity to make a will. He was a farmer, about eighty years old, working on his farm, and attending to its management. The testimony of the witnesses as to his mental condition was conflicting. They were before the surrogate, and we are not disposed to reverse his decision. It seems to us that the weight of evidence was decidedly in favor of the proqionent.

Upon the question of testamentary capacity the law is well settled, and in the leading case of Delafield v. Parish (25 N. Y. 9) is stated as follows: It is essential that the testator has sufficient capacity to comprehend- perfectly the condition of his property, his relation to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the Statute of "Wills, a person of sound mind and memory, and is competent to dispose of his estate by will.”

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

DvKMAN and Cullen, JJ., concurred.

Decree of the surrogate affirmed, with costs to the respondent, to be paid out of the estate.


source: Caselaw Access Project

author: Pratt, J.:

license: Public Domain

text:
    William Jacklin, Respondent, v. The National Life Association of Hartford, Conn., Appellant.

      Life insurance policy — mental derangement — not necessarily an impairment of health — no breach of wa/rranty — stipulation as to amount due.

    To what extent mental disturbance will destroy or interfere with the functions of the body must depend on the circumstances of each case, and is a question of fact to be solved in each instance by the evidence.
    In an application for insurance upon the life of one Yenie Jachlin the question was asked: “ What is the condition of health of your mother ?” and the answer was “sound.” At that time her mother was in a lunatic asylum afflicted with chronic mania, a serious form of insanity, and at times violent, profane and obscene. A physician testified upon the trial of an action brought to recover the amount of suqh policy that at the time of her admission she was in fair physical condition, and that at the time of the application for insurance she was eating and sleeping well, except when she had periods of mental disturbance.

      Held, that the finding of the court that there was no breach of warranty was proper.
    A stipulation had been entered into between the parties that “the sum to be received on this policy, if anything, is 578.97.”

      Held, that an objection made -upon the trial that there was a lack of proof as to the amount due under the contract was without force.
    Appeal by the defendant, The National Life Association of Hartford, Conn., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 21st day of February, 1893, upon the decision of the court after a triall at the Orange County Circuit, with notice of an intention to bring up for review on such appeal the exceptions filed to the findings, refusals to find and rulings of the court, and the order directing judgment.
    This action was brought to recover the amount of a life insurance policy upon the life of Yenie Jacklin by her father, the beneficiary named in such policy.
    The opinion of the trial court was as follows:

      “ IffiowN, J.:

      “ The policy provides for the payment of $100 ‘ solely from the funds accumulated from payments of its insured; ’ also, that if such accumulation on hand shall be insufficient to pay accrued claims, for an assessment on contracts in force of five per cent on single premium, and. if the whole fund from assessments and accumulations-is sufficient to pay all claims, it shall be distributed jpro rata, etc.

      “ It has been stipulated that £ the sum to be received on this policy, if anything, is $Y3.9I.’ In view of this stipulation the point made of a lack of proof of the amount due under the contract is without force.
    “ Proof of accumulation by the company and the amount that should be realized by an assessment could go no further than the stipulation, and was unnecessary. I think ch. 321, Laws of 1811, is. applicable to this policy.
    “ Such is the clear implication from chap. 328, Laws of 1885, and while it might be a debatable question if the act of 1885 had not been passed, this question does not even admit of serious dispute.
    “ The point was not presented in Ronald?s Oase (132 N. Y. 318),. neither was the act of 1885 called to the attention of the court.
    “ I am also of the opinion that the question of the breach of warranty must be decided in the plaintiff’s favor. The question in substance was : £ What is the condition of health of your mother ? ’ and the answer was, £ sound.’
    " The mother was then in the Binghamton Lunatic Asylum afflicted with chronic mania, a serious form of insanity, and at times violent, profane and obscene.
    " The physician testifies that at the time of her admission she was in fair pffiysicial condition, and that in 1891 (the time of application for insurance) she was eating and sleeping well except when she had periods of mental disturbance.
    “Both parties have, by withdrawing the case from the jury, treated this question as one of law, and the proposition, therefore, is, £ Can the court determine as a question of law that an insane person is necessarily.in unsound physical condition ? ’
    “No evidence has been given to show whether an insane person is considered among medical men as in an unsound condition of health, and the court possesses no expert knowledge which enables In'in to solve that question as one of fact. But obviously mere mental aberration will not necessarily constituté ill-health.
    “To what extent mental disturbance will destroy or interfere with the functions of the body must depend upon circumstances of ■each case. It is a question of fact to be solved in eacli instance by tbe evidence.
    “ There is nothing before me that compels me to say that the mother was in unsound health, and as the burden of so proving rests upon the defendant, the decision, in the absence of proof, must be against it.
    “ Judgment for plaintiff for $73.97.”

      John M. Gard/ner, for the appellant.

      F. V. Sanford, for the respondent.
   Pratt, J.:

The opinion filed by the court below covers all the questions and renders further discussion unnecessary.

The judgment must be affirmed, with costs.

CulleN and DyemaN, JJ., concurred. -

Judgment affirmed.


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    Franklin P. Roberge, Respondent, v. Maria N. Winne and Another, Appellants.

      Judgment — amendment only on notice — change of an equity judgment into a judgment at law.

    Assuming that a final decree can he altered or amended, although it does not contain a provision for the making of an application for such purpose, an alteration or amendment thereto cannot he made except on due notice.
    An equity judgment decreeing the execution and delivery of a bond and mortgage cannot, by a provision in an order denying a motion for a stay, he, in effect, turned into a judgment at law for a sum of money by granting leave to issue execution for the sale of the land to satisfy the judgment.
    Appeal by the defendants, Maria N. Winne and Elizabeth Cavannah, from an order of the Supreme Court, made at the West-chester County Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of June, 1893, denying the defendant’s motion to declare void a certain certificate of sale and for other relief, and also from that portion of an order of the Supreme Court, made at the Westchester County Special Term and entered in said clerk’s office on the 25th day of February, 1893, granting tlie plaintiff leave to issue an execution for tbe sale of certain property to satisfy his judgment against the defendants recovered in such action.

      Andrew J. Bhvpman and Edwin luis Mooney, for the appellants.

      F. H. Gray, for the respondent.
   Pratt, J.:

These are two appeals by the defendant "Winne from orders made at Special Term : First, from an order granting leave to issue execution for the sale of real property ; and, second, from an order denying defendant’s motion to vacate the sheriff’s certificate of sale.

The action is in equity, brought to set aside a deed of premises described in the complaint, made by the defendant Winne to the defendant Cavannah, and to enforce by specific performance the execution and delivery by Winne to the plaintiff of a bond and mortgage for $3,500 on said premises.

In December, 1891, jdaintiff owned certain real estate in New Jersey, and entered into a contract with the defendant Winne, whereby plaintiff agreed to convey said real estate to said Winne, and defendant Winne agreed to assign to plaintiff a mortgage for $3,500, representing that it was a purchase-money mortgage on property in the city of New York, and that there were no prior liens on said premises, except a lien for $21,000.

The plaintiff, in compliance with the agreement, conveyed said New Jersey premises to the defendant Winne, by proper deeds of conveyance, in the month of December, 1891.

It appeared, shortly after, that the premises in New York were incumbered by other liens to the extent of $33,000, which were prior to the mortgage which the defendant Winne was to assign to the plaintiff.

Thereupon, plaintiff and defendant Winne entered into a new agreement, by which the defendant Winne agreed to execute and deliver to plaintiff a mortgage upon the premises in question in the sum of $3,500, payable in one year.

The defendant Winne failed to execute and deliver this mortgage to plaintiff, who thereupon brought this action for a specific performance of the contract, and aslced that defendant be required to execute and deliver the bond and mortgage above referred to.

The court, at Special Term, gave judgment for plaintiff, directing the defendant Winne to execute á bond and mortgage on the real estate in question to the plaintiff, to be dated January 3, 1893, conditioned for the payment of the sum of $3,858.Y5 on January 3, 1894, with interest at six per cent per annum; and further decreed that the real property of the defendant Maria N. Winne, herein described, be subject to and bound by the lien of the judgment, herein directed for said $3,858.Y5, and for $281.49, the costs.”

The defendant Winne thereupon moved for a stay of proceedings, and on the 25th day of February, 1893, the court made an order denying defendant’s motion for a stay of proceedings, and directing that the plaintiff “may issue execution for the sale of said property to satisfy the judgment and costs decreed in the above-entitled action.”

It seems to us that the court erred in making the order that execution issue for a sale of the property to satisfy the judgment, The judgment directed defendant Winne to execute and deliver to plaintiff her bond and mortgage in the stun of $3,858.Y5, to bear date January 3, 1893, payable in one year from date, with interest at six per cent. It also decreed that the real property be subject to and bound 'by the lien of said judgment for said $3,858.Y5, and for $281.49 costs. It was in all respects .a judgment in equity, requiring the defendant to do a specific act, and was a final judgment. In no sense can it be considered a judgment at law for a sum of' money.

Without discussing the question whether a final decree can be'altered or amended unless it contains some provision for such an application, it is sufficient to say that such an alteration or amendment cannot be made except on due notice.

Here, a judgment in equity is, in effect, turned into a judgment at law for a sum of money, and that, too, not on a motion to amend the judgment, but by adding to the order denying defendant’s motion for a’ stay, something neither party had moved for, to wit, leave to issue execution for the sale of the land to satisfy the judgment.

So much, of the order appealed from as directed a sale should be 'reversed, and the order denying defendant’s motion to vacate the .sheriff’s certificate of sale should also be reversed, both with costs.

Cullen, J., concurred; Dyeman, J., not sitting.

A portion of the order appealed from reversed, with costs. Order do be settled by Peatt, J., on motion.


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    The People of the State of New York ex rel. Asa W. Wilkinson v. John E. Ireland and Others.

      Oertiora/ri — reversal of the determination of the referees laying out a highway.

    'Tlie facts and circumstances considered and commented upon which lead to the conclusion that there was no public necessity for a particular route laid out for a proposed highway, and that the proposed road would result in great injury to a certain property owner, and which necessitated the reversal of the determination of referees laying out the highway.
    Certiorari issued out of the Supreme Court and attested December 2, 1891, directed to John E. Ireland, John R. Reid and Jesse C. Mills, referees appointed by the county judge of Suffolk county, •commanding them to return their proceedings and determination in relation to laying out a road in the town of Southampton, Suffolk -county.

      H. H. Benjamin, for the relator.

      JS. A. Ocvrpenter, for the respondents.
   Pratt, J.:

This is a certiorari to review the determination of referees appointed by the county judge of Suffolk county which affirmed an order of highway commissioners of the town of Southampton,' laying out a highway in said town. Considerable evidence was produced before the referees, but it fails to show to my mind that there is any such public necessity for the road as will warrant doing the injury which must result to the rights of the relator.

The evidence is undisputed that where the proposed road is laid out the land of the relator is worth $1,500 per acre, and that it would cut off and render worthless quite a strip of land, be a serious blot, and render unsalable Ms whole property.

Again, the weight of evidence seems to be that a much better •route to serve the public convenience, and involving much less injury to the relator, can be laid to'the west of the proposed route, and also a route on the west side of the creek.

It also seems quite inequitable that the route should be laid upon land of the relator, when the evidence shows that it might be placed between the lands of Goodman and the relator, which would afford equal facilities of travel, afford as good or better landing for boats, as safe a harbor and do much less injury to private property.

On the whole case we are forced to the conclusion that no public necessity exists for the particular route laid out, and that the proposed road will result in great injury to the relator.

The order should be reversed.

Cullen and Dykman, JJ., concurred.

Order reversed.


author: Dykman, J.: Cullen, J. :

text:
    Barnard Flood, Respondent, v. The Brooklyn Elevated Railroad Company and Another, Appellants.

      Elevated railroad — action to recover past damages — instruction to the jury as to its effect on fee damagesevidence as to noise.

    In an action brought to recover past damages to real estate, resulting from the construction and operation of an elevated railroad, it is not error for the trial court to refuse to instruct the jury to consider the effect of their verdict on the question of fee damages, then pending in condemnation proceedings, nor is it error to admit evidence as to noise, although such evidence is not admissible in an action to recover fee damages.
    Appeal by the defendants, The Brooklyn Elevated Railroad Company and The Union Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of April, 1893, upon the verdict of a jury for $300, after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 12tli day of May, 1893, denying the defendants’ motion for a new trial.
    Tliis action was brought to recover past damages alleged to liave been sustained by certain real estate by reason of tlie construction and operation of the defendants’ elevated railroad.

      Wm. H. Oohen and Homer li. Seoville, for the appellants.

      Stephen M. Hoye and Fra/neis Fussell Whitney, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the coiirt.

The action is for the recovery of damages resulting from the maintenance and operation of the railroad of the defendant through Hudson avenue in the city of Brooklyn.

The property of the plaintiff is situated on Hudson avenue, and the basis of the action is the damage to his property caused by the construction and operation of the railroad. The verdict was in favor of the plaintiff for $300.

The claim of the appellants is that the charge was erroneous, the verdict is excessive, improper testimony was admitted, and that the complaint should have been dismissed.

Our examination of the record fails to support either of these contentions. There is ample evidence to reqrure the submission of the case to the j’ury, and for the support of the verdict.

The exception to the failure to charge the requests of the defendants and to the admissions of testimony present no error, and the j'udgment and order denying the motion for a new trial should be affirmed, with costs.

CulleN and Pjsatt, JJ\, concurred.

Cullen, J. :

This is an' appeal from a judgment for the plaintiff entered on the verdict of the jury. The action was for damages to plaintiff’s property resulting from the construction and operation of defendants railroad.

The rule of damages was correctly charged by the court, and to the charge no exception in this respect was taken. There was the usual conflict of testimony which is found in this class of cases. It would not be profitable to discuss the evidence at length. "We think it was sufficient to sustain the verdict, and the judgment must stand unless error was committed on the trial.

Two alleged errors are claimed. The court refused to instruct the jury to consider the effect of their verdict on the question of fee damages then pending in condemnation proceedings. If it could, the jury were to render a verdict in the matters submitted to them on the evidence presented, regardless of consequences. Another error claimed is the admission of certain evidence which, it is contended, affected only the fee value. We think that the evidence also affected the usable or rental value. It is also urged that the court erred in admitting evidence as to noise. This was admissible in an action of this character, though not in one for fee damages; (Kane v. N. Y. Elevated R. R. Co., 125 N. Y. 164.)

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

Pratt and Dyemaít, JJ., concurred.

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


author: Cullen, J.:

text:
    In the Matter of The Assessment for Improving East Eighteenth Street in the Town of Flatbush.

      Assessment for a street improvement — when a nominal assessment only is proper.

    Upon the return to a writ of certiorari to review an assessment for the improvement, of a portion of a street, it appeared that a part of the street within the limits of the improvement had been imprpved and regulated hy an abutting-owner at his own expense, and accepted hy the town authorities. The contract for the work excluded that part of the street, and only a nominal assessment was placed on the property adjoining'the improved portion of the street, and the expense of the improvement was imposed upon the remaining property.

      Sold, that such assessment was proper and should he affirmed.
    Certiorari issued out of tlie Supreme Court and attested June 1, 1893, directed to the board of improvement of the town of Elat-bush, in Kings county, Theodore Alston, John J. McConnell and Peter Osman, commissioners, and Henry Hesterberg, town cleric, commanding them to return certain proceedings taken for the purpose of improving a portion of East Eighteenth street in the town ■of Flatbush, Kings county.

      Josiah T. Mm-ecm, for William Matthews and others, relators.

      Wm. E. O. Meyer, for the board of improvement of the town of Flatbush and others, respondents.
   Cullen, J.:

This is a certiorari to review an assessment for the improvement of East Eighteenth street in Flatbush, from Church avenue to the town line. It appears that a part of this street within the limits named had been .improved and regulated by the abutting owner, one Ficken, at his own expense, and accepted by the town author-ties. The contract for the work excluded that part of the street. Only a nominal assessment was placed on the property adjoining the improved part of the street, and the expense of the improvement was imposed upon the remaining property.

• The statute provides that if the district of assessment shall not extend beyond the middle of the blocks between the said street or avenue, and the street or avenue next adjoining thereto on each side thereof, they shall apportion and assess the said expense ratably, according to the number of feet fronting on such street or avenue, on the land of the several owners, extending back to the middle of such block.” (Laws of 1892, chap. 512.) The relator contends that, under this provision, the commissioners should have levied its ratable share of the cost upon Ficken’s land according to its front upon the street. This would be grossly unfair, and such an assessment should not have been levied upon that land unless the statute required it. Ficken’s part of the street, having been improved and accepted by the town authorities, was not subject to further improvements under the statute under which these proceedings are taken. The petition, it is true, asks the improvement of the whole length of the street within the limits named. This should be construed as excluding such part •of the street as had already been improved both in fact and in law. So, under the statute, the lands upon which the expense was to be apportioned and assessed were the lands fronting upon the street or avenue, but this plainly was limited to the part of the street or avenue improved. There was .no improvement of the street in front of Eicken’s land, and, therefore, no assessment should have been imposed upon it. But the imposition of the nominal assessment nowise injures the relator, and Ficken does not complain.

The proceedings and assessment of the commissioners should be affirmed, with costs.

Pratt and DyKMAN, JJ., concurred.

Proceedings and assessment of commissioners affirmed, with costs.


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    George Gerbig, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Expert testimony — scope of— damages resulting' from personal injuries — evidence..
    Whether a certain -wood, is strong or weak, brittle or tough, is a matter of fact, and of opinion only in the sense that it requires knowledge of and experience - with lumber, and the exercise of the judgment derived from such experience to become aware of the fact, and the same is true as to the holding power of anchors, which is a mechanical or physical fact.
    It is competent for experts to testify to opinions concerning matters justly the subject of expert knowledge, or to matters of fact which are not matters of common knowledge.
    Upon the trial of an action brought to recover damages resulting from personal injuries, it was shown that the plaintiff, an employee of the defendant, was injured by the collapse of a bin filled with coal, where he had been put to work shoveling the coal. The adjoining bin was empty, and there was evidence to show that before the accident the side toward the empty bin had partly given way or been displaced by the pressure of- the coal, and that the defendant had knowledge of that fact.
    The plaintiff claimed that the defendant had been negligent in respect to the-character of the lumber used, the insufficiency of the anchoring strips, and the failure to strengthen the bin after it had shown signs of weakness.

      Held, that the evidence was ample to warrant a verdict in favor of the plaintiff.
    The answer admitted the defendant’s construction of the bin and alleged that it had furnished material suitable in character and in quantity, and had intrusted the work to competent persons, and that the negligence, if any, was that of the plaintiff’s fellow-servants in performing the-work. .

      Meld, that evidence offered by the defendant that another coal company had built the partition and had stored the coal in the adjoining bin was properly excluded..

      Appeal by the defendant, The New York, Lake Erie and "Western Railroad Company, 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 10th day of May, 1893, upon the verdict of a jury for $9,750 after a trial at the Rockland County Circuit, and also from an order made at the Rockland County Circuit on the 2d day of May, 1893, and entered in the said clerk’s office, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

      Lewis E. Carr, for the appellant.

      A. 8. Tomjoldns, for the respondent.
   Cullen, J.:

This is an appeal from a judgment in favor of the plaintiff entered on the verdict of a jury. The plaintiff, an employee of the defendant, was injured by" the collapse of a coal bin where he had been put to work shoveling coal. The bin was full, while the adjoining bin was empty. There was evidence tending to show that before the accident the side toward the empty bin had partially given way or been displaced by the pressure of the coal, and that the defendant had notice of that fact. Negligence was claimed in three respects, the character of the lumber used, the insufficiency of the anchoring strips, and the failure to strengthen the bin after it had shown signs of weakness.

The evidence was ample to warrant the verdict, and the judgment should stand if no legal error were permitted on the trial. The first error claimed is the admission of testimony as to the character of the wood used for the partition, and to the testimony that the anchors, to sustain any horizontal pressure, would have to extend into the coal, beyond the natural line of rest. No objection is made to the competency of the witnesses giving this evidence. The first was a carpenter; the second, á civil engineer and builder. But it is claimed that such testimony related to matters of opinion, and was, therefore, incompetent, under Van Wycklen v. City of Brooklyn (118 N. Y. 429), and Davis v. Railroad (69 Hun, 174, 177).

The testimony of the witnesses was, in one sense, as to matters of opinion, but it was also as to matters of fact. Whether a certain wood is strong or weak, brittle or tough, is a matter of fact, and is a matter of opinion only in the sense,,that it requires knowledge of, and experience with lumber, and the exercise of judgment on such experience to become aware of the fact. The same is true of the statement of the holding power of tlie^anchors. It was a mechanical or physical fact. But whether considered matters of fact or matters of opinion the testimony was admissible. It is competent for experts to testify to opinions concerning matters justly the subject, of expert knowledge, or to matters of fact which are not matters of common knowledge. The testimony 'admitted comes exactly within the rule approved in the Van Wycklen case, “that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exists in reasons rather than descriptive facts.” Surely the majority of people do not know the respective merits and demerits of hemlock lumber, and fewer know the law of mechanics governing the holding of an anchor any more than th'e thrust of an arch. Nor does the ruling of the trial court conflict with our previous decisions in the cases arising from this accident. Indeed, we are inclined to the belief that in those decisions the principle of excluding testimony as to opinion was pushed too far.

The evidence offered by the defendant, that the Hillside Coal and Iron Company had built the partition and stored the coal in the adjoining bin, was properly excluded. The answer admitted defendant’s construction of the bin. It alleged that defendant furnished suitable material in character and in quantity, and intrusted the work to competent persons, and that the negligence, if any, was that of plaintiffs fellow-servants in performing the work. This is a plain statement that the defendant .did construct the bin; otherwise how could the persons who constructed it have been plaintiffs fellow-servants ?

The judgment and order denying motion for new trial should be aflirmed, with costs.

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

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


text:
    The Village of New Rochelle, Appellant, v. Fredericka Lang, Respondent.

      Equity — penal statutes or by-laws of a corporation not enforced in equity — validity of an ordinance enacted under chapter 806 of the Laws of 1876.
    It is no part of the province of a court of equity to enforce the penal law of (,lie State or the by-laws of a corporation by an injunction, unless the act sought to be restrained is a nuisance.
    The provisions of chapter 306 of the Laws of 1876, authorizing the village of New Rochelle to “prohibit, restrain and prevent” within a certain area the construction of frame or wooden buildings, gives it no standing in equity to bring an action not otherwise maintainable by it.
    Query, whether an ordinance passed by the trustees of such village is valid, which prohibits the erection of any such building within such limits without the consent of the trustees.
    Appeal by tlie plaintiff, Tlie Village of New Roclielle, from an order of tlie Supreme Court, made at tlie "Westchester Oouuty Special Term and.entered in tbe office of the clerk of the county of "Westchester on the 24th day of July, 1893, denying the plaintiff’s motion for an injunction pending the action and dissolving a temporary injunction obtained therein.
    Section 1 of title 6 of chapter 306 of the Laws of 1816 reads as follows:
    “ SectioN 1. The trustees shall have power to prevent the dangerous construction and condition of chimneys, fire places, hearths, stoves and stove pipes, ovens, boilers and apparatus used in any building or manufactory, and to cause the same to be removed or placed in a safe condition when considered dangerous, and to prevent the deposit of ashes in unsafe places; to provide fire buckets and to regulate the use of them in time of fire; to authorize the fire wardens or other officers of the village to keep away from the vicinity of any fire all idle or suspicious persons, and to compel all persons to aid in the extinguishment of fires and the preservation of property exposed to danger thereat, and generally to establish such regulations for the prevention and extinguishment of fires as they may deem expedient; to prescribe and declare such portion of said village as they may deem expedient a fire district; to prohibit, restrain and prevent, witbin said fire district, tbe construction of any frame or wooden building for any purpose whatever.”
    Tlie complaint in this action alleged the incorporation of the plaintiff; that the defendant resided in the town of New Rochelle, and was the owner in fee of certain premises, and that she commenced the construction of a frame or wooden building on said piece of ground in such village, which construction was in violation of a certain ordinance of such village, which was therein set forth as follows:
    “ SeotioN 1. No person or persons shall hereafter be permitted to erect or construct any frame or wooden building for any purpose whatever without first receiving permission from the board of trustees of the village of New Rochelle,” within certain prescribed limits, within which the said property was situated.
    The relief demanded was that the defendant, her agents, etc., be enjoined and restrained from erecting or constructing a frame or wooden building on said premises, and for., an order restraining the erection thereof during the pendency of the action.

      G. II. <& J. A. Young, for the- appellant.

      Oha/rles F. Irwin-, for the respondent. -
   Cullen, J.:

This is an appeal from an order denying an injunction to restrain the defendant from constructing a wooden building in the village of New Rochelle.

The injunction was properly denied. We think that the plaintiff had no standing to maintain the action. “ It is no part of the business of this court (a court of equity) to enforce the penal laws of the State or the by-laws of a corporation by injunction unless the act sought to be restrained is a nuisance.” (Mayor v. Thorne, 7 Paige, 261.) The same rule was held in Village of Brockport v. Johnston (13 Abb. N. C. 468). Even if the act were a nuisance the remedy was by indictment, or in equity only at the suit of the People or of some private person who alleged special damages. The provision of the statute (Chap. 306, Laws of 1876), authorizing the village to "prohibit, restrain and prevent,” gave the plaintiff no standing in equity to bring an action otherwise not maintainable bj it. It provides for restraint, not by injunction, but by the means placed in the power of the village, penalties, etc.

Note. The rest of the cases of this term will he found in the next volume (76) Hun.— [Rep.

We have also grave doubts as to the validity of the ordinance enacted. The village is empowered to fix a fire district and “ to prohibit, restrain and prevent within said fire district the construction of any frame or wooden building for any purpose whatever.” This ordinance, passed by the trustees, prohibits the erection of any ¡such building within the limits named without the consent of the trustees. This is a different prohibition from that authorized by the ¡statute. The law authorized the 'establishment of a district in which there should be no wooden buildings. The trustees have fixed the district in which there may or may. not be wooden buildings as the trustees pleased.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


author: Per Curiam:

text:
    Joel Sammet, Respondent, v. Louis Monsheimer, Appellant.
    Order reversed, with ten dollars costs and disbursements and mo-' tion denied, with ten dollars costs.— Appeal from order striking out answer as frivolous.—
   Per Curiam:

We are clearly of opinion that the answer stricken out is not frivolous. The order should be reversed, with ten dollars costs and disbursements and the motion de-s nied, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    Edward Gustaveson, Respondent, v. Ira L. Otis and Others, Appellants.
    Order reversed and motion granted, as stated in opinion, with ten dollars costs and disbursements to abide final event. — Appeal from order denying motion to make complaint more definite and certaip.—
   Per Curiam:

So much of the motion as asks that the complaint should be made more definite and certain, by including a definite description of the premises alleged to have been occupied, should have been granted. The order should be reversed and motion granted to this extent, with ten dollars costs and disbursements to abide the event.

Present— Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    Joseph Rafolovitz v. American Tobacco Company.
   — Motion granted, with ten dollars costs.


text:
    Henry Horbeck v. Sarah Katherine Pupin.
   The order will be resettled by reversing order upon the facts.


text:
    James E. Howell v. William Donegan.
   — Motion denied, with ten dollars costs.


text:
    Philo T. Ruggles v. Francis X. Stafford and Others.
   — Motion denied.


text:
    In the Matter of the Application of William A. Alderson.
   Order signed.


text:
    Edward H. Steck, Respondent, v. The Colorado Fuel and Iron Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Mary McCarthy, as Administratrix, etc., Appellant, v. Thomas J. Sullivan, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Adolph Moonelis and Others, Appellants, v. James E. Smith, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Canadian Agricultural, Coal and Colonization Company v. Joseph L. Spofford.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    Therese Murphy, as Administratrix, etc., Appellant; v. Frank K. Hays and Others, Respondents.
    Judgment affirmed, with costs.— Appeal from a judgment of this court, dismissing plaintiff’s complaint, in a case tried before Mr. Justice Beach and a jury.—
   Per Curiam:

While a portion of the opinion of this court on the former appeal (68 Hun, 450) is not applicable on this review, because it discusses the testimony of the engineer, who was not sworn on the retrial, it is, in other respects, in point. As a re-examination of the case has not led to any change in the position then taken and expressed by the court, further discussion need not be had. The judgment should be affirmed, with costs.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    George w. Lederer, Appellant, v. Tribune Association and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Charles L. Dimon, as Administrator, etc., Respondent, v. Martha Keery Appellant.
   Order affirmed,^ with ten dollars costs and disbursements.


text:
    Frank W. Sanger v. Thomas H. French.
   Order affirmed, with ten dollars coste and disbursements.


text:
    Henry Winthrop Gray, as Receiver, etc., v. Louis Muhlhauser, Appellant, Impleaded, etc.
    Appeal dismissed, without costs.— Appeal from order denying motion to retax plaintiff’s bill of costs.—
   Per Curiam:

The judgment in this case having been reversed, it is unnecessary to decide the questions here raised upon taxation of costs. Appeal dismissed, -without costs.

Present — Van Brunt, P. J., O’Brien and Fol-lett, JJ.


text:
    John E. Domschke v. The Metropolitan Elevated Railway Company and Others.
   Motion for reargument denied. O’Brien, J., having concurred in opinion of Mr. Justice Follett, motion for reargument denied, without costs. (For Judge Follett's opinion, see 74 Hun, 442.)


text:
    Lucy H. Kuhn, Respondent, v. New York Elevated Railway Company and Others, Appellants.
    Judgment affirmed, with costs.— Appeal from judgment, entered after trial at Special Term.—
   Per Curiam:

All the questions, except one of fact, raised upon this appeal seem to have been passed upon by the court of last resort; and although those decisions are not entirely harmonious, we do not think there has been any departure from the rules laid down by those adjudications, and upon the consideration of the evidence we see no reason for interfering with the conclusions as to the damage sustained by the premises in question of the learned court below. The gravamen of the argument upon the part of the counsel for the defendant seems to be that no property in the city of New York would ever" Jciave increased in value had it not been for the existence of the elevated railroads, and that they are the beneficent authors of all the prosperity which has blessed our city. We do not think that the evidence in this case requires us to consider this proposition. The [judgment should be affirmed, with costs.

Present — Van Brunt, P. J., Follett and Parker, JJ.


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    The People of the State of New York ex rel. The Standard Gas Light Company, Respondent, v. Michael T. Daly, as Commissioner, etc., Appellant.
    Order affirmed, with fifty dollars costs and printing disbursements.— Appeal from order granting peremptory writ of mandamus.—
   Per Curiam:

The order granting a peremptory writ of mandamus, requiring the commissioner of public works to forthwith award and grant permits to the Standard Gas Light Company to open certain streets for the purpose of laying mains and making main connections, was in accordance with a previous decision of the court (67 Hun, 323). Since the granting of the order appealed from, that decision has heen affirmed (54 N. Y. St. Repr. 932). The order should be affirmed, with fifty dollars costs and printing disbursements.

Present — Van Brunt, P. J., Follett and Parker, JJ.


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    In the Matter of the Settlement of the Account of the Administrator of Danforth Daggett, Deceased.
   Order of Surrogate’s Court of Cattaraugus county appealed from affirmed, with costs.


text:
    John Metzler, Respondent, v. The Rochester City and Brighton Railroad Company, Appellant.
   Judgment appealed from reversed and a new trial granted upon the authority of Burmingham v. Same (137 N. Y. 13).


text:
    Thomas H. Groves, Appellant, v. John Rice et al., Respondents.
   Judgment appealed from affirmed; with costs, on the ground stated in the opinion of Bradley, J., at Special Term.


text:
    Horace C. Brewster v. Chauncey C. Starkweather et al.
   Defendants’ motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


text:
    Flora A. Taylor, Appellant, v. Grand Lodge of the Ancient Order of United Workmen of the State of New York, Respondent.
   Judgment appealed from affirmed on the opinion of ward, J., at the Circuit. •


text:
    John H. Frederick, Appellant, v. Goodman Street Homestead Association; H. C. Brewster et al., Respondents.
   Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at Special Term.


text:
    Leroy Cady, Respondent, v. The Rochester Railway Company, Appellant.
   Judgment and order appealed from affirmed and leave granted to appeal to the Court of Appeals on tue ground that a question of law is involved which ought to be reviewed by that court.


text:
    Andrew Downie and Jennie L. Gallagher, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed irom affirmed.


text:
    De Witt C. Reed, Respondent, v. Nathaniel Chilson and Another, Appellants.
   Judgment appealed from affirmed, with costs.


text:
    Andrew K. Smith, Appellant, v. James E. Taylor and Another, Respondents.
   Judgment appealed from affirmed, with costs.


text:
    Thomas Jones, as Receiver of the Rheubottom and Teall Manufacturing Company, Respondent, v. Ferdinand S. M. Blunn and Another, Appellants.
   Judgment appealed from affirmed, with costs.


text:
    Charles N. Tompkins et al., Appellants, v. Charles Hunter et al., Respondents.
   Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at Special Term


text:
    The Lumber Exchange Bank et al., Respondents, v. Oliver A. Jenkins, Appellant.
   Order appealed from affirmed, with costs, on the opinion of Childs, J., at Circuit.


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    Emma E. McCabe and Another, Respondents, v. The City of Buffalo, Appellant.
    Judgment and order appealed from affirmed. — Appeal by the defendant from a judgment entered on the verdict of a jury in favor of the plaintiff at the Erie Circuit, and from an order denying the defendant’s motion for a new trial on the minutes of the court.—
   Per Curiam:

This case was once before in this court on a similar appeal by the defendant, and a new trial was granted on the ground that the evidence failed to show that the plaintiffs were not guilty of negligence which contributed to produce the injury complained of. (Same title, 45 N. Y. St. Repr. 457.) Upon the new trial which has been had the evidence adduced seems to have taken the plaintiffs’ case out of the condemnation of our previous judgment, so far, at least, as to render the question of the plaintiffs’ contributory negligence properly a Suestion of fact to be submitted to the jury. ; was so submitted with instructions which did no violence to the principles upon which the previous appeal was determined, and there were no exceptions taken on the trial which seem to require discussion. It follows that the judgment and order now appealed from should be affirmed.

Present — Dwight, P. J., Lewis and Haight, JJ.


text:
    Thomas A. Myers et al., Respondents, v. Rochester and Honeoye Valley Railroad Company, Appellant.
   Judgment appealed from affirmed, with costs.


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    In the Matter of the Application of Jane Le Breton Brugh, an Alleged Lunatic.
   The order of the Special Term modified by striking out the words “ except as to the allowance of commission to said committee, and it is ordered* that no commission be allowed said committee and that her application therefor be and is hereby denied,” and as so modified affirmed, without costs of this appeal to either party.


text:
    Horace A. Reynolds, Individually and as Administrator, etc., Respondent, v. William P. Sisson et al., Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    A. F. Allen Brown, as Permanent Trustee under the Will of N. A. Lowry, Deceased, Respondent, v. Chautauqua County National Bank and George S. Gifford, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    M. Wallace Clark, Appellant, v. Eliza W. Clark, Individually and as Administratrix, Respondent.
   Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at Special Term; Bradley, J., not sitting.


text:
    Percilla Hunter, Respondent, v. The City of Rochester, Appellant.
   Judgment appealed from affirmed; Bradley, J., not sitting.


text:
    L. D. Harmon, Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed from affirmed.


text:
    William T. Bradley, as Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order appealed irom affirmed.


text:
    Pascal D. Parker et al., Appellants, v. Edward Webster, as Executor, etc., Respondent.
   Judgment appealed from affirmed. Opinion by Bradley, J. (Not published by direction of the judge.)


text:
    In the Matter of the Probate of the Last Will and Testament of Solander Carver, Deceased.
   Decree of the Surrogate’s Court of Cattaraugus County appealed from affirmed, without costs of this appeal to either party, on the opinion of the surrogate.


text:
    Frank D. Wright Respondent, v. George Mastin and Eliza J. Mastin, Appellants.
   Judgment appealed from affirmed, with costs.


text:
    Henry C. Pierce, Appellant, v. J. A. Reddish, Respondent.
   Judgment of the County Court of Steuben county affirmed, with costs.


text:
    Patrick H. Cumming, Appellant, v. Esther C. Cushing, as Administratrix, etc., Respondent.
   Judgment appealed from affirmed, with costs.


text:
    Joseph Reed, Appellant, v. Fred Stanley and Jennie M. Stanley, Respondents.
   Judgment of the County Court of Orleans county affirmed, with costs.


text:
    Anthony Neupert and John C. Lutz, Respond-dents, v. Hurbert H. Brooker and James Downs, Appellants.
   Order of the county judge of Niagara county appealed from affirmed, with ten dollars costs and disbursements, on the authority of The First National Bank of Rome v. Wilson (13 Hun, 232).


text:
    J. Felix Nassoiy, Respondent and Appellant, v. David H. Tomlinson et al., Appellants and Respondents.
   Judgment and order appealed from affirmed on the former opinion written in this case (65 Hun, 491).


text:
    Aurelia Foy, Respondent, v. Maud L. Dixon, Administratrix, etc., Appellant.
   Judgment appealed from affirmed, with costs.


text:
    Martha M. Wickham, Respondent, v. Sanford Harter and Another, Appellants.
   Judgment of the County Court, Niagara county, appealed from affirmed, with costs.


text:
    William Crisp, Appellant, v. Francis Rice, Respondent.
   Motion to dismiss appeal denied and the order of the County Court of Livingston county appealed from affirmed, with ten dollars costs and disbursements.


text:
    Wallace R. McArthur, Appellant, v. Lydia A. Cameron et al., Respondents.
   Order appealed from, affirmed, with ten dollars costs and disbursements.


text:
    Arthur W. Hickman, Respondent, v. Louis K. Purviance, Appellant.
   Order appealed from reversed, with ten dollars costs and disbursements and judgment vacated.


text:
    T. Franklin Crittenden et al., Respondents, v. Barbara Langnecht, Appellant.
   Motion to dismiss appeal upon the ground of the non-service of printed papers granted, unless the appellant cause the papers to be served on or before the first Saturday of the term, and pay the respondent ten dollars costs of the motion.


text:
    Harris Cook v. Herbert Bentley.
   Motion to dismiss appeal upon the ground of non-service of printed papers granted, unless the appellant cause the papers to be served within sixty days, and pay the respondent ten dollars costs of the motion.


text:
    The People, etc., Respondent, v. Frank Stevens, Appellant.
   Motion to dismiss the appeal and for an affirmance of the conviction on the ground of non-service of printed papers granted on default, and the proceedings are remitted to the Court of Sessions of Monroe county to proceed thereon.


text:
    Martin D. Chace, Respondent, v. Warsaw Water Works Company, Appellant.
   Motion to strike case from calendar and for affirmance denied.


text:
    John D Ward, Respondent, v. Charles H. Myers, Appellant.
   Motion to strike case from calendar and for affirmance on ground of non-service of printed papers granted on default.


text:
    Jackson W. Bowdick v. Paige et al.
   Motion to dismiss appeal on the ground of non-service of printed papers granted on default.


text:
    Rochester Distilling Company v. Mary M. Devendorf.
   Motion for reargument or for leave to appeal to the Court of Appeals denied.


text:
    Rochester Distilling Company v. Stewart L. Devendorf.
   Motion for reargument or for leave to appeal to the Court of Appeals denied.


text:
    The Thomas Manufacturing Company, Appellant, v. Benjamin Palmer, Respondent.
   Motion to dismiss the appeal, upon the ground that the notice of appeal was not served within the time limited by the Code, granted, with ten dollars coste.


text:
    Farley W. Gray, Administratrix, etc., Respondent, v. The Town of Caneadea, Appellant.
   Motion for a certificate that the case is of sufficient importance to make it advisable that the judgment of the Court of Appeals be taken before proceeding further, denied.


text:
    The People, etc., v. Philip Mayo.
   Motion to amend decision so as to certify that the reversal was upon the law, etc., denied.


author: Per Curiam :

text:
    The People, etc., v. William A. McDowell.
    Motion to amend decision so as to certify that the reversal was upon questions of law only, etc., denied.
   Per Curiam :

It is true that the new trial in this case was granted upon the law. But we cannot certify that upon the facts we would affirm the conviction for the reason that we think the evidence establishes, or that the jury might have found as facts that the board of excise granted the defendant a license; that the commissioners of excise, composing the board, were one a de jure and the other a de facto officer, and that the defendant ap-liedtosuch board for a license in good faith, elieving the persons composing it to be de jure officers.


text:
    In the Matter of the Accounting of Cornelius A. Smedley, as Guardian of Anna Van Buren, an Infant.
   Decree modified by deducting from the award forty dollars and eighty-five cents, for- commissions, and, as so modified, affirmed, without costs of the appeal to either party.


text:
    The People of the State of New York, Respondent, v. Anthony Girard, Appellant.
   Leave granted to appeal to the Court of Appeals, as the case involves a question of law that ought to be reviewed by that court.


text:
    Harry G. Clay and Effingham B. Morris, Trustees of the Estate which was Formerly of William Bingham, the Elder, Deceased, Appellants, v. George O. Hayes and Joseph E. Hayes. Respondents.
   Order affirmed, with ten dollars costs and disbursements. Martin, J., not sitting.


text:
    George Lester, Respondent, v. William A. Wright, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.


text:
    Henry M. Washbon, as Taxpayer, etc., Appellant, v. Daniel O. Winton and Others, Trustees, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Ralph W. Morrison, Respondent, v. Jacob L. Everitt, Appellant.
   Judgment of the County Court affirmed, with costs.


text:
    In the Matter of the Application of Mortimer M. Mayhew, Appellant, for a Writ of Certiorari against the Town Board of the Town of Morey, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Samuel R. Smith, Respondent, v. Edward M. Knowlton and Others, Appellants, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    John W. McCallum, Respondent, v. Hoboken Ferry Company, Appellant.
   Judgment and order affirmed, with costs, and leave granted to defendant to answer, on payment of costs of demurrer and of the appeal.


text:
    In the Matter of Proving the Last Will and Testament of Alexander F. Wilson, Deceased.

      Will —proof of the marie of the testator — Oode óf Giril Procedure, § 2620.
    If the mark of a testator at the foot of his alleged will be handwriting and subject to proof at all, within the provisions of section 2620 of the Code of Civil Procedure, it may be proved by one witness as well as by more, if the witness commands credence, and one disinterested witness is as competent as another to prove the fact.
    A will was subscribed by the testator by making his mark in the presence of two attesting witnesses. The attestation clause was full and complete. Upon the application for the probate of such instrument one of the attesting witnesses was dead. The other testified to the proper publication of the will, and that he saw the testator sign his mark thereto. The surrogate refused to admit the will to probate on the ground that the making of the mark by the testator must be proved by another and additional witness.

      Held, that such ruling was improper, and that the will should have been admitted to probate
    Appeal by the petitioner, Phoebe A. Gore, from a decree of the Surrogate’s Court of Westchester comity, entered in the office of the clerk of the Westchester Surrogate’s Court on the 5th day of May, 1893, refusing to admit to probate an instrument purporting to be the last will and testament of Alexander F. Wilson, deceased.

      Riehwrcl R. Arnow, for the proponent, appellant.

      J. Mortimer Bell, for George Bell and others, respondents.

      Dudley R. Horton ir Sarah E. Wilson and special guardian for infants, respondents.
   Cullen, J.:

This is an appeal from a decree of the surrogate of Westchester county refusing to admit a will to probate. The will was subscribed by the testator’s mark, in the presence of the two attesting witnesses. The attestation clause is foil and complete. One of the witnesses has died. The other testified to the proper publication of the will, and that he saw the testator sign his mark thereto. The ■surrogate refused probate on the ground that the making of the mark by the testator must be proved by another and additional witness, following his own previous ruling in Matter of Reynolds (4 Dem. 68).

We think that the decision does not rest on sound principle. Section 2620, Code, permits, in case of the death of a subscribing witness, the will to be ju'oved by proof of the handwriting of the testator and that of the deceased witness. In The Matter of Walsh (1 Tucker, 132) it was held that a mark was not handwriting within this provision, because it has no characteristics, and that, therefore, the will of a marksman could not be admitted to probate except on the testimony of the two subscribing witnesses. This rule has not been followed in any reported case. The next case was Matter of Reynolds, already cited. Subsequently, in The Matter of Dockstader (6 Dem. 106), the rule in the Reynolds case was not followed, but the will was admitted to probate on the testimony of a single subscribing witness that he saw' the testator make his mark, the other witness being dead. In The Matter of Phelps (1 Connoly, 463) the surrogate of New York adhered to the rule of the Reynolds case, but subsequently, in The Matter of Hyland (45 Alb. L. J. 209), the same judge reversed his previous ruling. In The Matter of Kane (20 N. Y. Supp. 123) the surrogate of Rockland follows the ruling in the Hyland and Dockstader cases.

The current of authority and custom is, therefore, against the decision made by the court below.

If a mark be handwriting, and the subject of proof at all within this provision of the Code, it may be proved as well by one witness :as by more, if the witness commands credence, and one disinterested witness is as competent as another to prove the fact. The only objection to the sufficiency of proof by a single surviving attesting witness is, that in every case the statute requires the testator to either sign in the witness’ presence, or acknowledge his signature, and to prove the will the witness must testify to either one or the •other of such requisites, either of which would be proof of the handwriting of the deceased; that, hence, when the statute.prescribes proof must be made of the handwriting of the testator, some further evidence, or evidence of further witnesses is required. If the section cited referred only to the cases where some attesting witness survived or could be produced, there would be great force in this objection. But the provision' of the Code is general, and applies to cases where the testimony of no attesting witness can be obtained. We think that we are not warranted in limiting the provisions of this section to the'proof of handwriting by others than the attesting witnesses. It is possible to imagine cases where our construction would perhaps render fraud more easy, but such a danger is more imaginary than real. On the other hand, to .uphold the rule laid down by the surrogate will cause many properly executed wills to fail without any fault or neglect on the testator’s part. The current of practice and authority being against that rule, we think that it should not be upheld.

The decree appealed from should be reversed, and a decree entered admitting the will to probate.

Pratt and Dticman, JJ., concurred.

Decree reversed and a decree directed to be entered admitting the will to probate.


text:
    Holmes Van Mater, Respondent, v. Jabez Burns, Jr., and Another, Appellants.

      Uncontradicted testimony of a party — its credibility a question for the jwy— written contract, parol evidence in reference to it — the verdict of a jury not set aside in aid of a defense not pleaded.

    Even where the testimony of a party to an action is uncontradicted, his interest in the result makes its credibility a question for the jury.
    Although, when a contract upon inspection is seen to be incomplete, that part of the contract not reduced to writing may be proved by parol, neither the written part of such contract, nor a complete written contract, can be contradicted by parol testimony.

      It is not allowable upon appeal to set aside the verdict of a jury in aid of a defense not pleaded
    Apprat, by the defendants, Jabez Burns, Jr., and another, from' a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of April, 1893, upon the verdict of a jury for $431.68 after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 20th day of April, 1893, denying the defendants’ motion for a new trial made upon the minutes.

      Ghcorles J. Patterson, for the appellants.

      W. K. Van Meter, for the l’espondent.
   Pratt, J.:

The appellants do not claim that any error of law was committed by the court below, but ask that the verdict be set aside upon the sole ground that it is contrary to the weight of evidence.

One answer to the application is that it is based entirely upon the testimony of one of the defendants, and it is well settled that even where the testimony of a party is uncontradicted, his interest in the result makes its credibility a question for the jury. Goldsmith v. Coverly (75 Hun, 48) lays down that rule, citing Honegger v. Wettstein (94 N. Y. 261); Wohlfahrt v. Beckert (92. id. 494); Kavanagh v. Wilson (70 id. 177) ; Elwood v. W. U. Tel. Co. (45 id. 549), and other cases.

But in the present case it cannot be said that the testimony of the party is uncontradicted. By the contemporaneous written agreement the right of the publishers to be paid in goods for the advertisement was absolute if the goods were demanded within three years. By the testimony of defendant the goods were not to be delivered except on board a ship destined to a foreign port. The bill of sale executed by defendant in August, 1887, six weeks after the advertising was finished, being without condition, was also contradictory of defendant’s testimony.

The verdict was warranted by the evidence, if not absolutely required by it.

The point made by respondent that the contract being in writing could not be contradicted by parol testimony, is also well taken. This is not a case where upon inspection a contract is seen to he incomplete, which allows that part of the contract not reduced to writing to be proved by parol. Even in such a case the written part of the contract cannot be contradicted as here sought to be done. (Thomas v. Scutt, 127 N. Y. 133.)

Another answer to the motion of appellant is that the defense interposed at the trial was not pleaded, and, therefore, not admissible if objected to. It is not allowable to set aside a verdict in aid of a defense not pleaded.

The only defenses set up in the answer were a denial of the assignment of the claim to the plaintiff, of the publication of' the advertisement, and of the demand of the goods and refusal to deliver. These were all proved upon the trial and were not then controverted. That entitled plaintiff to his verdict.

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

Dykman and Cullen, JJ., concurred.

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


author: Cullen, J. : Pratt, J.:

text:
    The People of the State of New York ex rel. James W. Lamb, v. The Board of Health of Long Island City, Respondent.

      Dismissal by a hom'd of health of a registrar of vital statistics — when reversed.

    The facts and circumstances eonsidered which, upon the return to a writ of certiorari to review the action of a board of health in removing the relator from office as registrar of vital statistics, on the charge of his having violated the instructions of the health officer, and the rules and regulations of the board of health, in causing the mail of the health board to be delivered at his residence, necessitate the reversal of the proceedings, finding and determination of such board of health and the reinstatement of the relator.
    Certiorari issued out of the Supreme Court and attested October 23, 1893, directed to the board of health of Long Island City, commanding it to return its proceedings in relation to the removal of the relator from the office of registrar of vital statistics of Long Island City.

      P. H. MoGarren, for tlie relator.

      Qlia/rles T. Duffy, for the respondent.
   Cullen, J. :

We think that the evidence fails to show a reasonable ground for the dismissal of the relator. The charge itself assigned no very substantial fault on his part. It is to the effect that he caused the mail of the health board to be delivered and received at his residence instead of at the office of the board. The instruction on that subject given to the relator seems not to have been very definite, and there was no refusal by the relator to comply with it, and no contumacy or disrespect on his part. If there was mail delivered at his residence after the conversation with the health officer upon the subject, it seems to have been the act of the mail carrier, who could not find the office of the board open, rather than that of the relator.

Proceedings reversed, with costs, and relator reinstated.

Dykman, J., concurred.

Pratt, J.:

This is a certiorari to review the action of the board of health in removing the relator from office as registrar of vital' statistics in Long Island City. The relator was duly qualified and duly appointed and performed the duties thereafter until removed by said respondent.

The charge upon which the relator was removed in substance was a violation of the instructions of the health officer and the rules and regulations of the board of health.” The specification was that he caused the mail of the health board to be delivered at his residence instead of allowing the same to be delivered at the office of said board of health in the City Hall.

We will assume that the board of health had jurisdiction and that the proceedings were regular in form, and consider only the question whether the evidence shows that the relator violated any rule of the board of health or disobeyed any proper order of the health officer which the latter had authority to make.

It is to be observed that it is not contradicted that a large proportion of the mail was addressed to the relator in person, which, in any case, would naturally and properly be delivered at his house.

Again, there is not a scintilla of proof that the relator ever caused any mail matter to be delivered at his house or that he ever prevented any such mail from being delivered at the office of the board of health.

The evidence also fails to show that any rule was ever adopted about the delivery of the mail or notice of any such request ever served on the relator. Neither is it shown that any order of the health officer was ever disobeyed; indeed, the evidence shows that the relator endeavored faithfully to perform the duties of his office; in fact, the inference is plain that the public health was conserved by the relator receiving mail after office hours, especially where it was necessary to grant burial certificates or to attend to the existence of contagious diseases.

It is perfectly plain that there was not a particle of evidence sufficient to sustain a charge that relator was guilty of violating any rule of the board of health or disobedience of any order.

The finding and determining of the board of health must be reversed, with costs, and relator returned to office.

Dykman and Cullen, JJ., concurred.

Finding and determination of the board of health reversed, with costs, and relator restored to his office.


author: Dykman, J. : Pratt, J.:

text:
    The People of the State of New York ex rel. Henry Lotz, Respondent, v. James Norton, Sheriff of Queens County, Appellant.

      Habeas corpus — cannot be used to review trials before magistrates — sale of intoxicating liqtw's — what the complaint must contain — Criminal Code, §§ 151 and. 164 — substitution of another magistrate — consent will not confer jurisdiction.

    It is irregular to go into proof before a county judge upon the return to a writ; of habeas corpus, except to traverse the return.
    It is a general rule that a habeas corpus cannot be used to review trials before magistrates. If it appears that the magistrate had jurisdiction of the person and the subj ect-matter, and the mittimus shows upon its face these two facts, the writ will be dismissed.
    It is not an offense against the statute to sell or give away strong or intoxicating liquors, unless it be done in the manner prohibited by statute, and when a person is charged with violating the excise laws of the State by selling or giving away intoxicating liquors without a license, if the complaint does not specify a mode of sale or gift within such prohibition, it charges no criminal act and furnishes no authority for the issuance of a warrant of arrest by a j ustice of the peace. ,
    Sections 151 and 164 of the Code of Criminal Procedure contain the only provisions authorizing the substitution of one magistrate for another, and after ■the organization of the court, the reception of the return to the warrant and the plea of the defendant, full jurisdiction is obtained and no change of magistrate is permissible; if the magistrate who organizes the' court is absent or unable to act, there must be an adjournment or the prosecution falls, and the consent of the parties to a substitution of magistrates will not confer jurisdiction.
    Appeal by The People of the State of New York, by the district attorney of Queens county acting on behalf of the sheriff thereof, from an order made by the county judge of Queens county, and entered in the office of the clerk of the county of Queens on the 13th day of July, 1893, discharging Henry Lotz from custody upon the return of a writ of habeas corpus.

      John Fleming, District Attorney, for the appellant.

      If. A. Montfort, for the relator, respondent.
   Dykman, J. :

This is a px-oceeding under habeas corpus for the discharge of the relator from impiisonment.

The relator was charged before George Wallace, a justice of the peace of the town of Hempstead, in Queens county, with violating the excise laws of the State, “ by selling or giving away intoxicating liquox-s without havixig a license therefor.”

Upon the reception of such complaint Justice Wallace issued a warrant for the ax-rest of the relator, axid he was arrested by virtue thereof and brought before the same justice, where he was arx-aigned and pleaded not guilty.

The x-elator demanded a trial by jux-y, and the case was adjourned several times. The venire for the jux-y was issued by the same justice, and the final adjournxnent was until the 28th day of June, 1893, when the parties appeared, Justice Wallace took his seat, impaneled the jux-y, and adnxinistered the oath to the jux-ors after they were selected. Thereupon, Justice Wallace called upon George W. Smith, another justice of the peace of Queens county, to take his place, and lie did so. Justice Wallace thereupon retired, and Justice Smith proceeded with the trial. Such substitution was with the assent of all the parties and their counsel.

The relator was convicted and sentenced to pay a fine of twenty-dive dollars, and in default of j>ayment was committed to the county jail. This proceeding was instituted to procure his discharge from ■such imprisonment.

. In the first place it is to be noted that the complaint against the relator charges no criminal act. It is not an offense against the statute to sell or give away strong or spirituous liquors unless it be done in the manner prohibited by statute, and this complaint specifies no mode of sale or gift within such prohibition.

The justice of the peace, therefore, was furnished with no authority for the issuance of a warrant for the arrest of the relator, because he was charged with the commission of no crime.

This case is equally strong in favor of the order of discharge upon the merits. \v

In each warrant for the arrest of a person upon a criminal charge there is inserted a direction to the executive officer to bring the defendant before the magistrate issuing the warrant, or in case of his absence or inability to act, before the nearest or most accessible magistrate in the same county. (Code Crim. Proc. § 151.)

Rut even without such a provision in the warrant the defendant may be taken before the nearest or most accessible magistrate, if the one who issued the warrant be absent or unable to act. (Code ■Crim. Proc. § 164.)

These are the only provisions for the substitution of a second magistrate, and after the organization of the court and the reception ■of the return of the warrant and the plea of the defendant, full jurisdiction is obtained and no change is permissible.

When the defendant is brought before the magistrate he organizes •a Court of Special Sessions for the trial, receives the return of the-warrant, takes the plea of the defendant, and proceeds with the trial, •and there is no authority for the substitution of a second magistrate to hold the court after its organization.

If the magistrate who organizes the court is absent or unable to act, there must be an adjournment or the prosecution falls.

Courts of Special Sessions, like all inferior courts, must act witliin their jurisdiction.

Neither did tlie consent of the parties confer jurisdiction. The evil was radical and incurable.

The order should be affirmed.

Cullen, J., concurred.

Pratt, J.:

It is a general rule that a habeas corpus cannot be used to review trials before magistrates. If it appears that the magistrate had jurisdiction of the person and the subject-matter, and the mittimus shows upon its face those two facts, tlie writ will be dismissed; but in this case a sort of trial was had before the county judge, from which it appears wliat the record was before the magistrate, and from that it seems the relator was not charged with any offense.

If tlie relator had also sued out a writ of certiorari he would be entitled to a discharge, as the record neither shows any charge or conviction of a crime.

Ye think it was irregular to go into proof before the county judge except to traverse the return; in fact, all the proceedings seem to have been irregular from beginning to end.

However, if all the matters are taken into consideration, I think the county judge did right in discharging the relator.

The order should be affirmed.

Order affirmed.


author: Pratt, J.: Cullen, J.: Dykman, J.

text:
    Charles Pickslay, Respondent, v. Theodore B. Starr, Appellant.

      Gift of a check — when it cannot he revoked.

    Although it may he that no action can he maintained upon a check which is the subject of a gift, if the maker thereof stops payment thereon; yet, after the money is paid upon it, the gift is complete and the transaction cannot be revoked. (Dykman, J., dissenting on the ground that the check was delivered by mistake.)
    Appeal by the defendant, Theodore B. Starr, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of tlie clerk of tlie county of Kings on the 17th day of July, 1893, upon the report of a referee.

      Delos McCurdy, for the appellant.

      WiTHcmn II. Ford, for the respondent.
   Pratt, J.:

The important question is whether the $2,500 check received by plaintiff from defendant the day before Christmas, 1889, was a gift, or whether it was an advance on account of plaintiff’s salary.

The referee has found it to be a gift, and we do not see how he could reasonably have decided otherwise. The referee’s opinion discusses the matter so fully that there is no need to pursue the argument further.

The suggestion that a check cannot be a valid gift has no weight. It may well be that had the maker of the check stopped its payment an action against the maker could not have been maintained. But after the money was paid the transaction could not be revoked; the gift was complete. That is to say, that although the gift of the check might not be binding and irrevocable, the check was the means and instrument by which the gift of money was effected.

The judgment should be affirmed, with costs.

Cullen, J.:

I concur on the ground that if the defendant made the present under mistake or forgetting that plaintiff’s salary had been increased, he should, upon discovering the error, disapprove the transaction and notify the plaintiff.

Dykman, J.

(dissenting):

This is an appeal by the defendant from a judgment entered upon the report of a referee in favor of the plaintiff.

The action is for services, and the only question of fact involved upon this appeal is -whether a check delivered to the plaintiff by the defendant was a Christmas present or a payment on account for services. The check ivas delivered to the plaintiff by reason of a momentary lapse of memory. In other words, it would not have been delivered if the fact that the salary of the plaintiff had been increased had not escaped the memory of the defendant.

The plaintiff had been in the employment of the defendant for several years previous, and the defendant had been in the habit of making him very handsome Christmas presents.

On this occasion, forgetting that the salary had been increased, he handed him the check jn question. Its delivery was in a broad sense a mistake. If all the facts had been in the mind and recollection of the defendant, the check would not have been given. It was not delivered in full view of the nature and consequence of the ■act. It never was the intention of the defendant to give the plaintiff $2,500 in addition to the increase of his salary.

Intention controls all transactions, and especially gifts. A delivery of property with intent to make a gift passes the title. "Without such intention there is no gift, and the delivery does not pass the title.

The admission of testimony respecting previous Christmas presents was erroneous, but we place our decision upon the ground that the delivery of the check was not a present, and must be allowed to the defendant in this action as a payment.

Judgment affirmed, with costs.


author: Cullen, J.: Dykman, J.

text:
    Tom L. Johnson and Another, Respondents, v. The Atlantic Avenue Railroad Company of Brooklyn, Appellant.

      Amended answer — leame to serve, when properly denied, — laches.

    An application for leave to serve an amended answer is properly denied on the ground of laches when the litigation has already continued over three years and when the defendant, long before the institution thereof, knew of a certain assignment which it desired to plead by the amended answer, the effect of which assignment would be not to relieve the defendant from liability, but to establish that its liability was to another person. (Dykman, J., dissenting.)
    'The application in such case should be denied on condition that the plaintiff obtains an assignment of the cause of action from the party to whom it has been assigned by the assignment sought to be set up by the amended answer.
    Appeal by the defendant, The Atlantic Avenue Railroad Company of Brooklyn, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Dutchess on the 20th day of November, 1893, denying the defendant’s motion for leave to serve an amended answer.

      Tracy, Boardmcm (& Platt, for the appellant.

      James C. Church, for the respondents.
   Cullen, J.:

This is an appeal from an order denying defendant’s application for leave to serve an amended answer.

This litigation arises out of a lease executed by the defendant to-the plaintiffs. The defendant sued the plaintiffs for the rent agreed to be paid, but was defeated. (13d N. Y. 3J5.) The plaintiffs-brought this action to recover damages for breach of defendant’s covenants. The lease was executed • in 1886. The defendant’s-action was instituted in 1888 and this' action in 1890. In the-defendant’s action for rent, the present plaintiffs alleged as a defense an assignment of the lease of the Brooklyn Cable Company, and its acceptance as a tenant by the Atlantic Avenue Railroad Company. The decision in that case proceeded on another ground. Itr thus appears that -the defendant, long before the institution of this, action, knew of the assignment. The amendment now desired by it is to plead such assignment.

We think that the application was properly denied on account of the laches of the defendant. This suit has been in litigation over three years, and has been to the Court of Appeals upon an interlocutory order. As to whether under the present answer the-defendant can show the assignment to defeat the title of the plaintiff to the damages suffered, or whether such assignment, if shown, would defeat the plaintiff’s title, we express no opinion. But it appears-from the affidavits that the cable company practically is the property of the plaintiffs. The defense sought to be interposed does not go to relieve the defendant from liability, but to establish that its liability is in law to another person. If it was intended to question Johnson’s right to the recovery, if any such might be had, it should have been done promptly. If the defense sought to be-pleaded was that defendant was liable to no one, we might look upon it with favor. But the effect of the amendment will be to cause the bringing of another suit by the cable company, so that in one ■case or the other there may be the right plaintiffs. "We think that the defendant should not now be granted any favor in this respect, but the defendant should be saved from any risk of a double litigation or of being compelled to pay the claim twice.

The order appealed from should be affirmed, with costs, provided that within thirty days the plaintiffs obtain an assignment to themselves of any claim the cable company may have against the defendant under the lease ; in default thereof the application may be renewed.

Pratt, J., concurred.

Dykman, J.

(dissenting):

The defendant in this action made a motion at the Special Term for leave to amend its answer to the complaint by the insertion of ,an allegation that prior to the commencement of this action, and the breaches of the contract charged in the complaint, the plaintiffs assigned the contract to the Brooklyn Cable Company. That by reason of such assignment the cause of action for the breach of the contract belongs to the cable company, and the plaintiffs are not the proper parties to sue thereon.

The motion was denied, and the defendant has appealed to this ■court from the order of denial.

Our system of pleading and practice is very liberal, and amendments to pleadings are granted by the courts with great freedom. In practice it is almost a matter of course to permit an amendment to a pleading’on application to the court for that purpose.

If there be any doubt respecting the sufficiency of the original answer in this case to enable the defendant to introduce testimony to show that the plaintiffs are not' the real parties in interest, then the uncertainty should be removed by the allowance of the proposed amendment to the answer.

The delays in the litigation, and some inconsistent positions of the counsel for the defendant, are urged as a reason for the affirmance of this order, but the argument can have but little force. There is ever more or less delay in all legal proceedings, and there is penalty provided for the inconsistency of lawyers. But neither the delay nor the inconsistency have been very remarkable in this case.

Moreover, courts cannot administer justice upon the retributive plan. The defendant has done nothing to forfeit its rights to a fair trial and a fair opportunity to present every defense which there is to this action.

"VVe do not deem it incumbent upon us now to determine whether the amendment proposed sets up a valid defense, nor whether the defendant is liable to the cable company.

The answer should be sufficiently broad to admit the defense, and the question of its validity may be left for determination upon the trial. The merits should be reached unimpeded by technical objections under the pleadings.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted on payment of ten dollars costs.

Order affirmed, with ten dollars costs and disbursements.