text:
    The People of the State of New York, Respondent, v. Henry J. Luhrs, Appellant.

      Code of Criminal Procedure, § 768 — a/ppealfrom the Special Sessions — a new trial ordered must be in the General Sessions — remedy by habeas corpus and by appeal —a prisoner tried on Sunday may be tried again.

    Where a new trial is ordered on appeal from a Court of Special Sessions such new trial, under the provisions of section 768 of the Code of Criminal Procedure, should take place in the Court of Sessions of the county.
    A judgment may be erroneous and not void, and may be erroneous because void, and the fact that a judgment is so void that it can be attacked collaterally renders it none the less an erroneous judgment.
    The fact that a prisoner convicted might have been discharged after the trial on a writ of habeas corpus does not preclude him from seeking relief by appeal, and when he adopts the latter mode he must abide by the practice on appeal prescribed by the Code.
    The fact that a prisoner was tried on Sunday, whereby the justice lost jurisdiction of the charge, does not grant the defendant immunity for his offense. The first, trial is a nullity and the defendant can again be properly placed on trial.
    Appeal by the defendant, Henry J. Luhrs, from so much of a judgment of the Court of Sessions, held in and for the county of Orange, rendered on the day of March, 1893, as directs that a new trial be had in the Court of Sessions of Orange county, which judgment reversed the judgment of a justice of the peace of the town of Cornwall, Orange county, which convicted the defendant of having violated section 31 of chapter 401 of the Laws of 1892, in selling liquors without a license.

      8. E. Dimmish, for the appellant.

      Eranh H. Cassidy, for the respondent.
   Cullen, J.:

The defendant was tried in a Court of Special Sessions charged with selling liquor without a license. The trial commenced on Saturday and was continued into Sunday morning, when the jury was charged, the defendant convicted and sentenced. For this error of holding the trial on Sunday the Court of Sessions reversed the conviction and judgment and ordered a new trial in that court. Prom so mucli of the judgment as directs a new trial in the Court of Sessions this apjjeal is taken.

We think there can be no doubt that when a new trial is ordered on appeal from a Court of Special Sessions, that trial, under the Code of Criminal Procedure, is to be had in the Court of Sessions of the county. Section 768 of the Code, referring to appeals from Courts of Special Sessions, provides: “ If a new trial be ordered it must be had in the Court of Sessions in the same manner as upon an issue of fact upon an indictment.” As indictments are not triable in Courts of Special Sessions, it is manifest that the court mentioned in the section is the Court of Sessions of the county.

The plaintiff contends that “ the judgment being void the justice lost jurisdiction of the action, and no appellate court can restore it to life.”

It may be that the judgment was so void that it could be attacked collaterally, but it was none the less an erroneous judgment. “ A judgment may be erroneous and not void, and it may be erroneous because it is void.” (Exparte Lange, 18 Wall. [U. S.] 163.)

Conceding for the argument that the defendant might have been discharged on habeas corpus, he was not precluded from seeking relief by appeal. This mode he adopted, and having taken it he must abide the practice prescribed by the Code on appeal.

The point that by the trial on Sunday the justice lost jurisdiction of the charge and the defendant obtained immunity for his offense is without any foundation. In People v. Connor (142 N. Y. 130) the defendant was tried on an indictment in the Court of Sessions and convicted. It appeared that one of the justices of that court was related to the defendant within the statutory degree. Thereupon the prior conviction was set aside and upon the new trial the defendant was again convicted. On appeal it was held that the first trial being a nullity the defendant was properly again placed on trial.

The judgment of the Court of Sessions appealed from should be affirmed.

BeowN, P. J., and Dyemait, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: CulleN, J.:

license: Public Domain

text:
    Mathushek Piano Manufacturing Company, Respondent, v. James Pearce, Appellant.

      Receiver — refusal to deliver property to Mm — m’der for examination concerning the property — it is not an examination of an adverse pa/rty to be used as ■ evidence.

      A receiver was appointed in an action oí all the pianos received by the defendant and in his custody, and oí all contracts for the sale oí pianos made on installments, and of all leases, and of all amounts uncollected thereon; and the defendant was ordered to deliver to the receiver all contracts and leases and all books, papers and accounts relating thereto.

      Held, that on the failure of the defendant to deliver any such books of account it was proper to direct him by an order of the court to appear for examination, concerning the disposition of the pianos and the amounts due from any parties thereon ;
    That such examination was not that of a party to an action at the instance of his adversary to be used as evidence, and it was not necessary to set forth in the moving affidavits the statements required by the Code of Civil Procedure in proceedings to obtain such an examination.
    Appeal by the defendant, James Pearce, Irom an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester-on the 29th day of March, 1894, directing that the defendant, James Pearce, appear before a referee therein appointed for the purpose of examination.
    The affidavit upon which the order of examination was granted was as follows:

      “ City AND Couitty op New Yobe, ss. :

    “James H. Moran, being duly sworn, says:
    “ I. That by an order made in this cause, dated on the 21st day of October, 1893, which order was resettled November 18th, 1893, deponent was duly appointed receiver of all the pianos mentioned in the amended complaint in the possession of the defendant,
    James Pearce, and of all contracts for -the sale of any of said pianos by installments or conditionally, and of all leases of any of said pianos, and of all amounts collected by the defendant on such conditioned sales mentioned in the complaint, and leases, since the commencement of this action, and of all amounts uncollected on such sales or leases. And in and by said order it was further ordered tbat on demand tbe defendant deliver to the receiver all books, papers and accounts kept or caused to be kept by him since the commencement of this action showing what disposition he has made of said pianos, and also deliver all of said contracts or leases made by him of said pianos; and that he pay over to the receiver on demand all of said amounts so received by him on account of sales or rentals of said pianos.

      “ II. That thereupon this deponent duly qualified as such receiver, ■as required by said order.

      “ III. That on the 11th day of November, 1893, deponent, in company with Mr. William A. Abbott, counsel for the plaintiff, called on the defendant at the latter’s place of business in the city of Yonkers and served the defendant with a certified copy of said order of October 21, 1893, and demanded of him the delivery of ,any pianos in his possession that were mentioned in or covered by ¡said order, as well as of all contracts and leases referred to in said order, and also demanded payment of all amounts collected by the defendant on conditional sales of pianos since the commencement of ■this action. Deponent also, at said time and place, demanded of the defendant all books, papers and accounts kept or caused to be kept by him since the commencement of this action, showing what disposition he has made of said pianos, which, by said original order .and as resettled, the defendant was required to deliver to deponent on demand. That, in response to the aforesaid demand by deponent on defendant, the defendant told deponent that his, the defendant’s, business would suffer injury if he should deliver his hooks of account called for by said order, as they contained entries of other transactions, and promised deponent that he would draw off from .said books a copy of all entries relating to the pianos in question in this action and send said copy to deponent, and that deponent could have access to the books and compare said copy with the books’ ■entries. Deponent says that no such promised copy was ever received by him, and is informed that by advice of counsel the ■defendant refuses to furnish such copy.

      “ That on or about November 13th, 1893, deponent received from ■defendant a check for $36.00 only ‘for money received since August 4th,’ as stated in a letter of November 13, 1893, purporting to come from deponent, and defendant has failed to further comply with the demand made pursuant to said order to pay to deponent the moneys received by him since the commencement of said action on account of said pianos, and has failed to deliver to deponent the leases and contracts required by said order.
    “ IT. That deponent, as such receiver, is desirous of collecting the money due upon the contracts for the sale of said pianos by installments or conditionally and upon leases of any of said pianos, as well as of all amounts collected by the defendant on such conditional sales and leases since the commencement of this action, but is unable to do so without having in his possession the books, papers and accounts kept or caused to be kept by the defendant since the commencement of this action, showing what disposition he had made of said pianos, and showing what has been paid and what remains due on such of said pianos as have been leased or conditionally sold.

      “ Y. That it is necessary, in order to ascertain the names of the persons or parties to whom said pianos have been leased or conditionally sold by the defendant, and also to ascertain the amounts due from them therefor, and to ascertain the amounts collected by the defendant, to examine the defendant and his books of account and any contracts for the sale of said pianos in his possession. And deponent desires an order requiring the defendant to appear and be examined for said purpose, and to produce on such examination his books of account and all contracts, writings and memoranda of every description relating to said pianos and said business.
    “ Sworn to before me this 9th | day of March, 1894. )
    JAMES H. MORAN,
    “Arthur M. Silber,

      “ Notary Public,

      “ City and Go. of N. Y.”

      J. N. Whitelegge, for the appellant.

      William A. Abbott, for the respondent.
   CulleN, J.:

In this action a receiver was appointed of all the pianos received by the defendant and in his custody, and of all contracts for the sale of pianos made on installments, and of all leases, and of all amounts uncollected thereon; and the defendant was ordered to deliver to the receiver all contracts and leases, and all books, papers and accounts relating thereto. The defendant failing to deliver any books of account, he was ordered to appear for examination concerning the disposition of the pianos and the amounts due from any parties thereon. From that order this appeal was taken.

We think that the order was properly made. The examination of the defendant was not that of a party to the action at the instance of his adversary to be used as evidence. Hence, it was not necessary to set forth in the moving affidavits the statements required .by the Code of Procedure, to obtain such examinations. This examination was in aid of the receivership. It was necessary for the receiver, in order to properly perform his duties, to know where the pianos were, who had them, and under what terms; what amounts were still owing on them; and the court had the inherent power to direct the examination to give the receiver such information.

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

BeowN, P. J., concurred; DyxmaN, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, P. J.:

text:
    Joseph M. Mullins and Others, by Mary E. Mullins, their General Guardian and Guardian ad Litem, Appellants, v. Thomas F. Mullins, Respondent, Impleaded with Others.
    Will— the intention of a testator; although inaptly expressed, must he given effect — wm'ds may he transposed for that pwpose.

    The fact that a testatrix has used inapt language, in order to carry out a plan or design contained in her 'will, is no reason why it should he defeated. Words can be transposed and supplied, ana interpretations given to phrases not accustomed to be applied to them in order that expression may be given to the designs of a testatrix, and it is the duty of the court, if possible, to place such interpretation upon the language used in a will as to give effect to the manifest intention of the testatrix.
    The second clause of the will of a testatrix was as follows:

      ‘‘Second, I give, devise and bequeath the house and lot known and described as Number 326 East 57th street, in the city of New York, unto my brother Thomas Francis Mullins, in trust, nevertheless, to have and to hold the same during the minority of the six children of my brother John Mullins, for the benefit of said children. * * * On said children attaining majority I give, devise and bequeath the house and lot devised in this paragraph to the said six children and the issue of any deceased child, and the survivor or survivors of them, share and share alike, issue to take per capita and not per stirpes, to have and to hold the same to their own use and behoof forever.”

      Weld, that, if the statute-against perpetuities was not contravened, there was an express trust created by such will to collect the rents during the minority of such infants, and to apply the same to their use, and that the legal estate was in the trustee therein named, who was entitled to the possession of the premises.
    Appeal by tlie plaintiffs, Josejili M. Mullins and others, by Mary E. Mullins, their general guardian and guardian ad litem, from a judgment of the Supreme Court in. favor of the defendant Thomas F. Mullins, entered in the office of the clerk of the county of New York on the 15th day of May, 1891, upon the decision of the court, rendered after a trial before the court without a jury at the New York Circuit, dismissing the plaintiffs’ complaint and for costs.

      W. H. Hamilton, for the appellants.

      Emmet c& Ho'binson, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover possession of house and lot No. 326 East Fifty-seventh street in the city of New York. It appeared upon the trial that one Ellen Hoey died seized of the premises on the 26th of January, 1890, leaving a last will and testament, which was duly admitted to probate and letters testamentary issued thereon to the defendant who was the executor therein mentioned.

By said will the said Ellen IToey devised the premises in question as follows:

“ Second. I give, devise and bequeath the house and lot known and described as Number 326 East 57th street, in the city of New York, unto my brother Thomas Francis Mullins, in trust, nevertheless, to have and to hold the same during the minority of the six children of my brother John Mullins, for the benefit of said children. * * * On said children attaining majority I give, devise and bequeath the house and lot devised in this paragraph to the said six children and the issue of any deceased child, and the survivor or survivors of them, share and share alike, issue to take jper capita and not per stirpes, to have and to hold the same to their own use and behoof forever.”

Upon the death of the testatrix and the probate of the will the defendant went into possession of this house and lot and has collected the rents thereof. All the six children of John Mullins mentioned in the will were at the time of the commencement of this action infants under the age of twenty-one years, and this action is brought by their guardian ad litem claiming possession of the premises in question upon the ground that there being no valid express trust to collect the rents of the premises during the minority of the infants, there was a present devise of the same to the said infants and they are entitled to the possession thereof.

The court below disposed of the case upon the ground that the' provisions of the will of Ellen Hoey contravened the statute against perpetuities in that the absolute power of alienation was suspended during the minority of the whole of the six children — necessarily, therefore, for more than two lives in being. This question, however, it does not seem to be necessary to consider in the disposition of this appeal; because it seems to us, upon an examination of the will, and being guided in the construction by the rule that the intention of the testatrix is to govern, if the statute against perpetuities' was not contravened, there was an express trust to collect the rents during the minority of these infants and to apply the same to their use, in which case the legal estate would be in the trustee, and he would be entitled to the possession of the premises.

It is undoubtedly true that the draughtsman of the will has expressed the intention of the testatrix in perhaps inartificial language ; but the intent seems to be perfectly manifest. By a previous clause in the will the testatrix had given to her brother, the defendant, the house adjoining the one in question ; and it was her intention that the children of her brother John Mullins should have-the other house upon their attaining their majority; and it was furthermore her undoubted intention that the children of her brother John, during their minority, should have applied for their benefit the rents which might be derived from the premises in question. In order to effectuate this object she devised the premises in question) to her brother Thos. E. Mullins, in trust, to hold the same during the minority of the six children of her brother John for the benefit of said children, and then provided that upon the children attaining their majority such children were to have absolutely the premises in question. Here is a plain intimation upon the part of the testatrix that the defendant is to hold these premises for the benefit of these infants until they shall attain their majority, when they are to enter into full enjoyment of the bequest. It is clear that the holding of the premises for the use of the children implied the right upon the part of the trustee to enter into possession, to collect the rents and to apply them to the use of the infants. This is a trust expressly recognized by the statute, and, as has already been stated, authorized the trustee to take possession of the premises, to collect the rents, and apply them to the use of the said infants. Simply because a testatrix has used inapt language in order to carry out this plan or design is no reason why it should be defeated. Words have been transposed, words have been supplied, and interpretations given to phrases not accustomed to be applied to them, in order that expression may be given to the designs of a testator. Therefore, in a case such as the one at bar, it is the duty of the court to place such interpretation upon the language used as effectuates the manifest intention of the testatrix.

We are of opinion, therefore, without determining the question as to whether there is a suspension of the power of alienation beyond that which is permitted by the statute, that the defendant as trustee has at least the right to the possession of the premises for the purpose of collecting, the rents and applying the same to the use of the children of the testatrix’s brother John until such children shall attain their majority.

This view is sufficient to dispose of the question involved in this action, and, therefore, we think that the judgment appealed from should be affirmed without our expressing any opinion upon the question as to the effect of the statute in respect to the suspension of the power of alienation.

The judgment should be affirmed, with costs.

Follett and Barrett, JJ., concurred.

Judgment affirmed, with costs.


author: Pee CueiaM :

text:
    Marvin Cross and Others, Plaintiffs, v. Anglo-American Banking Company, Defendant.

      President of a banking corporation — when presumptively aMtlwrized to equip its office with furniture.

    Where the president and chief executive of a foreign hanking corporation, having its principal place of business in the city of New York, is expressly authorized by the articles of incorporation, and by the action of its directors, to open its office in the city of New York, he has, presumptively, authority to purchase the furniture necessary to equip such office, in the absence of a by-law or resolution limiting his power, or requiring that no expenditure shall be made except under a resolution of the board of directors of such corporation.

      MotioN by the defendant, Anglo-American Banking Company, for a new trial on a case containing exceptions ordered to be heard ¡at the General Term in the first instance after a verdict had been rendered in favor of the plaintiffs, by direction of the court on the 14th day of May, 1894, after a trial at the New York Circuit

      Arthwr R. JRobertson, for the plaintiffs.

      John G. Shaw, for the defendant.
   Pee CueiaM :

This action was brought to recover the alleged value of office furniture furnished for defendant’s use between March 15, 1892, and May 31, 1892. The defendant is a banking corporation, organized June 5, 1888, undei\tke laws of "West Virginia, having its principal place of business at the city of New York. Prom the date of the incorporation of the defendant to the date of the trial of this action Samuel J. Gorman was one of the directors and its president. Aside from Gorman, there were four other directors, J. H. Hobson, Edmond Iluerstel, C. Y. Sidell and Charles March. Mr. Gorman testified, without objection, that he was the president of the corporation, and, under the defendant’s objection, that he ordered the furniture and fixtures from the plaintiffs for use in the New York • office, which was opened under the direction of Mr. Hobson, Mr. Gorman, Mr. March and himself, and that the furniture was furnished by the plaintiffs and was used by defendant in its New York office.

Mr. March, one of the defendant’s directors, testified that the furniture was furnished and was used in the defendant’s office in the city of New York. There was no dispute upon the trial about the fact that the furniture was ordered by the defendant’s president, was used in its office, and was worth the price charged. The only defense interposed was that the plaintiffs were unable to prove a resolution of defendant’s board of directors authorizing its president to purchase this furniture. No evidence was- given of any by-law or resolution limiting the power of the president, or requiring that no expenditure should be made, except upon the resolution of the board. The evidence was entirely uncontradicted, and is ample to justify tbe conclusion of tbe learned trial judge that tbe president had power to order tbe articles furnished. Besides this, it was shown that tbe furniture was used in defendant’s office with tbe knowledge of its directors and of some of its principal stockholders. The president was defendant’s chief executive officer, and was expressly authorized by the articles of incorporation and by the action of the directors to open an office in this city, and presumptively he had authority to purchase furniture necessary to equip the office which he was directed to establish.

The conclusion reached by the trial judge is the only one possible upon the evidence contained in the record, and the judgment should be affirmed, with costs.

Present — Yan Brunt, P. J., Follett and Barrett, JJ.

Judgment affirmed, with costs.


author: Barrett, J.:

text:
    Leila R. Martin, Individually and as Executrix, etc., of William C. Martin, Deceased, Appellant, v. John B. Pine, as Trustee, etc., of William C. Martin, Deceased, and Others, Respondents.

      Will creating a trust estate — a power of appointment may he void without destroying the trust — a beneficiary thereunder may he seized of a vested remainder therein, without merger — a paper referred to in the will, though void as a testamentary disposition, considered to ascertain the testator’s intent.

    The eleventh clause of the will of a testator was as follows:
    “ Eleventh. All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to my executor hereinafter named, in trust, nevertheless, to invest the same and keep the same invested, and to collect the rents, income and profits thereof and apply them to the use of my daughter, Leila R. Martin, during her natural life, and on her decease, if it occur within five years after the date of this will, to pay over and transfer to himself, as-trustee for Stella Martin, a sum equal to that held by him in trust for her, if she shall be alive, and on the same trust; ” (it also made like several provisions in favor of Margaret Ford, Fannie Ford and Mary Ford), “and to pay over and transfer the whole or any part of the said residuary estate which may then be left, or which may he left at any time, to such person or persons or such body corporate as my said daughter may appoint by will, if such appointment is not contrary to the provisions which I shall leave in a certain paper made contemporaneous with this will and sealed up and addressed to the executor, and if said appointment shall be contrary to said provisions, then I give, devise and bequeath my said residuary estate, after the death of my said daughter, to the person or persons or body corporate named in said paper addressed to said executor in the proportion therein named.”
    Leila E. Martin, the testator’s sole heir and next of kin, lived more than five years after the date of such will. Neither at the time of the execution of the said will, nor at any time subsequent thereto, was there in existence any provision or paper, made contemporaneous with said will, or at any time, corresponding to the paper mentioned and described In the eleventh clause thereof.

      Held, that the power of appointment sought to be conferred was not limited to five years after the date of the will;
    That the grammatical construction of the clause must give way to the clear intent and meaning of the testator, whose intention was to dispose of the residue of his estate, and to give his daughter a power of appointment;
    That if the testator’s daughter should die within five years the power of appointment was to operate upon the whole or any part of the residuary estate which might then be left, including the principal fund out of which the double annuities were to be paid. If the daughter lived beyond the five years, in case the power of appointment was exercised, it was to operate upon the entire residue, including the principal fund out of which the single annuities were to be paid;
    That the power of appointment was interwoven with the limitation and'could not be severed therefrom without nullifying the testator’s intention;
    That the limitation was void, and if the paper referred to were in existence it could not be taken as part of the will;
    That there was no valid or operative power of appointment, but that the trust itself was valid and remained wholly unaffected by the invalid power of appointment;
    That the remainder in the trust estate was vested in Leila E. Martin, the sole heir and next of kin of the decedent, but the trust for her life was not destroyed by reason thereof, as there was no merger of the estate.
    Although the provisions contained in a will, in regard to a paper therein referred to, be inoperative as a testamentary disposition, it may be considered by the courts to ascertain the testator’s intention.
    Appeal by the plaintiff, Leila R. Martin, individually and as executrix, etc., of "William C. Martin, deceased, from a judgment of the Supreme Court in favor of the defendants, dated the 16th day of November, 1893, and entered in the office of the clerk of the county of New York, upon the decision of the court rendered after a trial at the New York Special Term.

      W. JET. Hamilton, for the appellant.

      Ayma/r Embv/ry, for the respondents.
   Barrett, J.:

This is an action for the construction of the will of William O. Martin, who died on the 4th day of May, 1891, in the city of New Tork, leaving the plaintiff as his sole heir and next of kin. The questions discussed are raised by the eleventh clause of Mr. Martin’s will. By the seventh, eighth, ninth and tenth clauses four specific trusts for small amounts were created in favor of Stella Martin, Margaret Ford, Fannie Ford and Mary Ford. They are not disputed or attacked. r The eleventh clause then provides as follows:

Eleventh. All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to my executor hereinafter named, in trust, nevertheless, to invest the same and keep the same invested and to collect the rents, income and profits thereof, and apply them to the use of my daughter, Leila R. Martin, during her natural life, and on her decease, if it occur within five years after the date of this will, to pay over and transfer to himself, as trustee for Stella Martin, a sum equal to that held by him in trust for her, if she shall be alive, and on the same trust; also, to pay over and transfer to himself, as trustee for Margaret Ford, a sum equal to that held by him in trust for her, if she shall be alive, and on the same trust; also, to pay over and transfer to himself, as trustee for Fannie Ford, a sum equal to that held by him in trust for her, if she shall be alive, and on the same trust; also, to pay over and transfer to himself, as trustee for Mary Ford, a sum equal to that held by him in trust for her, if she shall be alive, and on the same trust, and to pay over and transfer the whole, or any part of the said residuary estate which may then be left, or which may be left at any twne, to such person or persons, or such body corporate as my said daughter may appoint by will, if such appointment is not contrary to the provisions which I shall leave in a certain paper made contemporaneous with this will and sealed up and addressed to the executor, and if said appointment shall be contrary to said provisions, then I give, devise and bequeath my said residuary estate, after the death of my said daughter, to the person or persons or body corporate named in said paper addressed to said executor in the proportion therein named.”

The will was dated the 10th day of September, 1881, and Leila R. Martin lived for five years thereafter. In fact, she is the present plaintiff and is still alive. No such paper as that referred to in the latter part of the eleventh clause has ever been found. Upon that head the learned justice at Special Term, upon the request of both sides, found as a fact:

“ That neither at the time of the execution of the said will, nor at the time of the execution of the said codicil, nor at any time subsequent thereto, was there in existence any provision or paper made contemporaneous with said will, or at any time, corresponding to-the paper mentioned and described in the eleventh clause of said will.”

Upon this state of facts the defendant trustee claims that the power of appointment conferred upon Leila R. Martin by the eleventh clause of the will is a valid power, by virtue of which she is entitled to dispose of the testator’s entire residuary estate. The plaintiff, upon the other hand, claims that the power is wholly void and inoperative; that the eleventh clause is incapable of execution ; that the corpus of the residuary estate is vested in the plaintiff as. sole heir at law and next of kin; that the attempted trust for her: benefit became inoperative or merged in her absolute ownership of' the corpus of the estate; that the main purpose for which any trust was sought to be created has completely failed, and that the wholes residuary estate should be adjudged to belong to the plaintiff freed of any trust.

No question is raised with respect to the annuities payable to' Stella Martin and the Fords under the seventh, eighth, ninth and. tenth clauses of the will. It is claimed, however, that the disposition of the principal fund, out of which these annuities are payable,, should be governed by the adjudication upon the eleventh clause.

Two points are made against the power of appointment: First,. that it was “ dependent upon the death of the plaintiff herein within, five years after the date of the will, which death has not happened.” Second, that it was made “ dependent upon and governed by the terms of an extraneous paper which may or may not exist, but which cannot, in any event, give any dispositive force or effect under well-settled principles of law.”

The learned judge at Special Term discussed the first point but not the second. He holds, and we think correctly,, that the power of appointment sought to be conferred was not limited to five years after the date of the will. The grammatical construction of the clause must give way to the clear intent and meaning of the testator. He meant to dispose of the residue and to give his daughter a power of appointment. If his daughter died within five years after the date of the will, the several annuities to Stella Martin and the Fords were to be doubled. If she lived beyond the five years, these annuities were not to be doubled. That was the real significance of this five years’ limitation.

As to the power of appointment, if it were exercised and the daughter should die within the five years, it was to operate upon “ the whole or any part of the said residuary estate which may then he left.” That included the principal fund out of which the double annuities were to be paid. If, however, it were exercised and the daughter should live beyond the five years, it was also to operate upon the entire residue, including the principal fund out of which the single annuities were to be paid. This is clearly covered by the words “ which may be left at any time,” and by the devise “ after the death of ” his daughter — in case the power of appointment is not exercised according to his wishes. “ The death of my said daughter,” here referred to, was clearly not her death within the five years, but her death at any time.

We think, however, that the second point made against this power of appointment is well taken. It is impossible to say that this is an unlimited power of appointment merely because the limitation upon its exercise is void. The power is interwoven with the limitation and cannot be severed therefrom without nullifying the testator’s intention. It is conceded that the limitation is void. Even if the paper referred to were in existence, it could not be taken as part of the will. (Langdon v. Astor's Exrs., 16 N. Y. 26; Williams v. Freeman, 83 id. 569; In the Matter of O'Neil, 91 id. 516; Booth v. Baptist Ohuroh, 126 id. 215.) The defendants’ contention is that the limitation, being void, should be disregarded and the power held to be unlimited. This, however, would be contrary to the expressed wishes of the testator. How can we say that the power was unlimited when it is in terms limited by the proviso ? The daughter was really to exercise no discretion, but simply to follow the testator’s direction as contained in the supposed contemporaneous paper. Although the provision with regard to this paper is inoperative as a testamentary disposition, yet the court will look at it to ascertain the testator’s intention. (Kiah v. Grenier, 56 N. Y. 220; Gross v. Moore, 68 Hun, 412; Thayer v. Wellington, 9 Allen, 283.)

In the case last cited the will contained the following clairse : “ I give to the said Edmund T. Hastings and to William W. Wellington of said Cambridge, physician, and to the survivor of them, $15,000 in trust, to appropriate the same in such manner as I may, by any instrument in writing under my hand, direct and appoint.”

The testator, by a separate instrument not attested as a will, made a certain disposition of this money to the city of Cambridge. It was held (citing with approval Langdon v. Astor, supra) that this did not create a valid bequest to the city of Cambridge, even with the assent of Hastings and Wellington to the payment. The suggestion was made in behalf of the city that effect might be given to the supposed object of the charity by holding the bequest to be an absolute one to Hastings and Wellington personally in confidence that they would appropriate the money as the testator should request. But the court declined to accede to this suggestion, giving as a reason that “ the words of the clause ” did not “ authorize such a construction to be given to it,” and that the bequest had, “-on its face, language directly contradictory to it.”

In Gross v. Moore (supra) the residuary clause read as follows: “ I give, devise and bequeath unto my executor, hereinafter named, all the rest, remainder and residue of my personal estate, to be distributed by him according to instructions given to him by me.”

It was contended that, even though the trust were invalid, there was an absolute gift. But the court said:

“We think that the language directing that the residuum be distributed by him according to the instructions given him by the testatrix, negatives the view that the executor was to keep the property as his own. It equally negatives the idea that he was vested with a discretion which, had it been conferred, might hme induced the court to construe this into a power of appointment.”

We think, therefore, that there was here no valid or operative power of appointment. But this view of the case does not aid the plaintiff in her desire to terminate the trust created for her benefit and to receive the entire residuary estate free from it. The trust itself is perfectly valid and remains wholly unaffected by the invalid power of appointment. The residue of the estate, after providing for the four small annuities, is given to the executor in trust to “ invest the same and keep the same invested, and to collect the rents, income and profits thereof and apply them to the use of my daughter, Leila R. Martin, during her natural life.”

All that follows in the eleventh clause relates to the disposition of the residue after the death of the beneficiary. That is not an essential part of the trust. If the power of appointment was valid, the appointee, upon the death of the trust beneficiary, would take the residue by virtue of the statute. (1 R. S. 727, § 47; Welch v. Allen, 21 Wend. 147; Nicoll v. Walworth, 4 Den. 391.) If invalid, the testator’s heir would take. In neither case would a conveyance by the trustee be essential. The duty to pay over and transfer the residuary estate upon the death of the trust beneficiary is not an active trust duty. It is merely nominal. There is but one active trust here and that is perfectly valid under the Revised Statutes. It has not failed and it is entirely possible of performance.

As to the remainder, it is undoubtedly vested in Leila R. Martin. She cannot exercise a power of appointment with regard to it under her father’s will, but she can devise it under her own. The idea that the trust for her life can be destroyed because she is thus vested with the remainder is fallacious. There is here no merger of estates. She has no estate in that which is vested in the trustee for her life. The entire estate, legal and equitable, is vested in the trustee for the trust purposes. As beneficiaiy of the trust she has no estate. The remainder is vested, but it commences in enjoyment only upon the termination of the estate now vested absolutely in the trustee. The case of Asche v. Asche (113 N. Y. 232) is directly in point upon this branch of the case. "We cannot nullify a testator’s will to suit the convenience of his beneficiaries. There is a class of cases where, as was said in Cuthbert v. Chauvet (136 N. Y. 329), the court would decree dissolution of the trust upon the application of all the interested parties, hit this was stnricily limited to cases where the whole design and object of the trust scheme had been practically accomplished, and all the interests created by it had become vested.” .Here the whole design and object of the trust scheme has not been accomplished, and cannot be while the plaintiff lives to • enjoy the income applicable to her use. “Trusts are usually created,” said the court in Cuthbert v. Chauvet, “ for the purpose of withholding from the beneficiaries or other interested parties the control and disposition of the principal of the trust fund for reasons which, appear sufficient'to the settlor, and they are not as a general rule regarded with satisfaction by the persons who are thus deprived of the possession of the trust estate.”

In Douglas v. Cruger (80 N. Y. 19) it was held that the Supreme Court had not the power to destroy a valid trust. “ The purpose of the statute,” said Earl, J., “ was to make those trust estates and trust interests indestructible and absolutely inalienable during the existence of the trust, and if they could be rendered alienable by the order of the court the whole scheme of the statute would be greatly impaired and its purpose thwarted.”

The same doctrine was maintained in Lent v. Howard (89 N. Y. 181).

In Asche v. Asche (supra) it was claimed, independent of the question of merger, that, as upon the death of the children the widow took an estate in remainder, she would thus become entitled as heir to her children and the sole bmeficia/ry in the trust to the immediate possession and control of the trust fund. The court held otherwise, Ruger, Ch. «I., observing: “We do not think so. The object of the creation of the trust estate would not then have been accomplished. The intention of the testator to put the corpus of the fund beyond the hazard of impairment cmd waste d/uri/ng the life of Ms wife ccmnot be defeated or affected by the acquisition by. her of the estates in remainder created by the will. The necessity for the maintenance of the trust would remain in full force notwithstanding the widow’s succession to the rights of her children. By such acquisition she would acquire a future estate, dependent upon the precedent estate of the trustees, but which she cannot enjoy in possession. She might devise it, but cannot possess an estate conditioned upon her own death.”

. This is conclusive of the plaintiff’s contention. It follows that all the trusts created by the will in question are valid and indestructible.

The judgment appealed from should, therefore, be modified by striking out so muck thereof as adjudges that under the eleventh clause of the will in question the plaintiff, Leila R. Martin, has a valid power of appointment. So far as it upholds the validity of the trusts it should be affirmed, with costs to the trustee only, payable out of the estate.

"Van Brunt, P. J., and Follett, J., concurred.

So ordered.


text:
    Michael J. Cunningham, Appellant, v. Adolph Gans, Respondent.

      A eheoh given for money won at a game of chance — uninvpeached testimony cannot be arbitrarily disregarded — verdict set aside.

    A check, given in consideration of money won from the maker at a game of chance, ■ is utterly void.
    The positive testimony of an unimpeached and uncontradicted witness, given upon the trial of an action, cannot be arbitrarily or capriciously disregarded by the court or jury, and it 4s the duty of the court to set aside the verdict of a jury founded upon the disbelief of clear, uncontradicted and undisputed evidence.
    Appeal by the plaintiff, Michael J. Cunningham, from an order of the Supreme Court, made at the New York Circuit and entered in the office of the clerk of the county of New York on the 12th day of February, 1894, setting aside the verdict of a jury in favor of the plaintiff rendered after a trial at the New York Circuit.

      Ira Leo Bamberger, for the appellant.

      Artlmr Furber, for the respondent.
   Barrett, J.:

This is an appeal from an order granting a new trial upon the minutes of the judge at Circuit. The action was upon a check, and the defendant set up that the check was given for money lost at a game of chance called “ roulette.” Upon the trial this defense was established by a disinterested witness named Stahl, who fully confirmed the defendant with regard to the transaction. There were some slight discrepancies between Stahl and the defendant in matters of detail, but none with regard to the material fact. The plaintiff failed to produce the payee of the check, one Yanderburgh, nor did lie offer any evidence in contradiction of that given by Stahl and the defendant. Yander burgh was the person who presided over the game in Mitchell’s club house at Saratoga, rolled the ball, sold the chips which were lost, and took the check therefor.

Upon this state of facts there was nothing to go to the jury, and the learned judge should have directed a verdict for the defendant. At the close of the case the defendant’s counsel asked the court to charge the jury as follows

“ That the uncontradicted evidence of the case is that the consideration for the giving of the check was illegal, to wit, a gambling debt, and, therefore, their verdict must be for defendant.”

This motion was denied and the defendant excepted. This was error. As the defendant was entitled to an absolute direction, he was certainly entitled to this instruction. The check was a thing in action, executed and given by the defendant in consideration of money won from him at a game of chance, and it was, therefore, “ utterly void ” under the statute. (1 H. S. 663, § 18.) There was no real dispute about the facts. Whatever question there might have been as to the right to go to the jury upon the defendant’s testimony, had it stood alone, there, was none when his testimony was supplemented by that of an unimpeached and uncontradicted witness. The positive testimony of an unimpeached and uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously. (Lomer v. Meeker, 25 N. Y. 363; Kelly v. Burroughs, 102 id. 95.) In the present ease both the court and jury were, as was said in Lomer v. Meeker (supra, p. 363), “ bound to believe for judicial purposes such testimony,” and it was, therefore, the clear duty of the court to set aside the verdict of a jury founded upon a disbelief of clear, uncontradicted and undisputed evidence.

The motion for a new trial was, therefore, properly granted. It was granted unconditionally This also was proper as the defendant was entitled to a new trial, not as a matter of discretion, but as a matter of right.

The order appealed from should, therefore, be affirmed, with costs.

Yan Brunt, P. J., and Parker, J., concurred.

Order affirmed, with costs.


text:
    Benjamin W. Jones, Respondent, v. Henry J. Newton, Appellant.

      The words, “ Payment gua/ranteed,’’ written on bills of merchandise by the vendee, do not transfer the original into a collateral agreement.

    The use of the words “Payment guaranteed,” written hy an alleged vendee upon hills of merchandise made out to him by the vendor, does not tend to vary the original agreement between the parties nor to turn the sale into a guaranty; and where such person was the principal debtor, the use of such words amounts to nothing more than his guaranty of his own debt, which is not a collateral but an original undertaking.
    Appeal by tbe defendant, Henry J. Newton, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of tbe county of New York on tbe 22d day of January, 1894, upon tbe verdict of a jury directed by tbe court after a trial at tbe New York Circuit, and also from an order entered in said clerk’s office on tbe 23d day of January, 1894, denying tbe defend- , ant’s motion to set aside tbe verdict upon tbe minutes.

      JE. H. Berm, for tbe appellant.

      W. L. Snyder, for tbe respondent.
   Barrett, J.:

Upon tbe uncontradicted testimony in this case a verdict was properly directed for tbe plaintiff. Tbe goods were delivered to Yan Gelder upon the defendant’s original undertaking. Credit was given solely to tbe defendant and tbe goods were charged to him. Tbe goods were sold in tbe year 1891. Tbe course of dealing between the parties was as follows: Upon the delivery of tbe goods to Yan Gelder tbe latter receipted therefor. A bill was then made out to Newton. This bill (accompanied with Yan Gelder’s receipt) was sent to Newton, who wrote across its face, “Payment guaranteed, H. J. Newton.” This course of dealing bad continued for four years. It originated after the failure of Yan Gelder Bros. That firm, in tbe year 1887, made an assignment to Newton, who was willing to help them. As they bad no credit and wanted goods, Newton told the plaintiff’s agent, one Sharts, that be would guarantee sales made to them by tbe plaintiff. Accordingly a sale was made. Tbe first bill was charged to Yan Gelder Bros., and tbe defendant, in execution o'f Ms guaranty, was required to and did give Ms note for the amount thereof payable in two months. The bill read: “Terms, 60 days note of Henry J. Newton.” The correspondence with regard to this transaction settled all future questions as to whether the defendant "was to be a guarantor or an original undertaker. Sharts wrote to Newton on the 25th of May, 1887, as follows:

“Mr. Henry J. Newton, 436 West 16th street, New York:
“ Dear Sir —■ The writer (after seeing you last Monday) called on Yan Gelder Bros, and reported to them the'result of our interview. They are anxious to get the skins from me with as little delay as possible, so if you will be hind enough to sign the enclosed note for $308.70, and retmrn it to me, Van Gelder can obtain the goods at once. Please fill in on the note where you want the note made payable, i. e., at what bank. Your attention to the above will oblige, Yours, very truly,
“B. W. JONES —P. H. Sharts.”

To this Newton, on the next day, sent the following answer:

“Mr. B. W. Jones:
“Dear Sir — Yours with bill for goods to Yan Gelder Bros, and note came to hand this morning. My understanding with the gentleman from your house, who called on me, was that the goods should be billed to me, and in f%otu/re you will please bill all goods delivered to Van Gelder Bros, to me, and send me bill when delivered. Yery respectfully yours,
“HENBY J. NEWTON.”

Sharts replied May 27, 1887, as follows:

“ Henry J. Newton, Esq., 430 West 16th street, New York:
“ Dear Sir —Your favor of 26th inst. received with note at two months from the 26th of May (due July 29th) for three hundred and eight .70 dollars in settlement of bill for salted skins, dated May 25th. I have made out the invoice in your name instead of Yan Gelder Bros., and enclose it herewith. The two casks of skins were delivered to Yan Gelder Bros, this day. Thanking you for the note, I remain Yours, very truly,
“B. W. JONES — P. H. Sharts.”

Thereafter all bills were made out directly to the defendant, and the goods, as delivered from time to time to Van Gelder Bros., were charged to him.

Charles Van Gelder went out of the firm of Van Gelder Bros, on the 1st of February, 1888, and thereafter the same course of dealing proceeded with regard to Henry Van Gelder. This also is evidenced by the defendant’s letters. Thus, in July, 1888, he wrote to the plaintiff as follows:'

“New York, July '¡ZSrd, 1888.
“Mr. B. W. Jones :
“ Dear Sir — As I expect to be out of town most of the time until Sept. 1st next, you will please let Mr. Henry Yam, Gelder home such goods as Tie may require to successfully ca/rry on his business d/wring my absence, a/nd 1 will be responsible for the same.
“ Yours very respectfully,
“HENRY J. NEWTON.”
And again in July, 1889 :
“New York, July Ylth, 1889.
“ B. W. Jones, Esq.:
“ Dear Sir- — -This is to certify that during my absence from the city you are authorized to furnish Mr. Henry Van Gelder with goods in his line as heretofore, for which you may consider me responsible, as usual. On my return to the city I will notify you, and then a return to the ordinary method will be in order.
“ Yours respectfully,
“HENRY J. NEWTON.”

Hpon each of the twenty-six bills sold in 1891, which form the subject of this action, the “ return to the ordinary method ” is evidenced by these undisputed facts: That each bill was made out and rendered to H. J. Newton; was accompanied by Henry Van Gelder’s receipt, and was identified and approved by the words, “ Payment guaranteed, H. J. Newton,” written across its face by the defendant.

It is clear upon this state of facts that there was nothing to go to the jury, and that the defendant was liable upon his original undertaking. He chose to bind himself in that manner rather than give his note each time that Van Gelder purchased a bill of goods.

He knew that a guaranty meant the giving of his note before the plaintiff would trust Yan Gelder with, the goods. This was evidenced by Sharts’ letter with regard to the first purchase. To avoid that inconvenience he deliberately chose the obligation of a direct sale to himself, with sixty days’ credit. His present claim, therefore, that he was a mere guarantor, is both disingenuous and frivolous. He was clearly liable for every bill made out in his name which, when sent to him, was accepted, such acceptance being evidenced by the words, “Payment guaranteed, H. J. Newton,” written across the face thereof.

The direction was, therefore, right.

As to the rulings upon evidence, we think the court committed no error. Yan Gelder was asked whether he or Newton purchased the goods; whether they were purchased for him in his business for Newton; whether Newton had any interest in his business; whether he was acting as Newton’s agent; whether the goods were charged to him or to Newton; whether he was authorized to purchase for Newton, and a host of similar questions. Newton, was asked whether he ever purchased any goods of plaintiff, whether he had any interest in Yan Gelder’s business.

All these questions were properly excluded. Many of them involved mere conclusions. The object could only have been to induce the witnesses to deny the legal effect of the documentary evidence. Not a question was asked calling for any conversation, agreement or actual transaction between the parties; nothing suggestive of a new or different arrangement from that evidenced by the defendant’s own signature. It is clear that the defendant could not, in the way attempted by these questions, vary the conclusive effect of the real transaction. ~We are referred to a class of cases where the admission of what, upon the surface, might seem to be conclusions of witnesses, was sustained. (Caspar v. O’Brien, 47 How. 80; Sweet v. Tuttle, 14 N. Y. 472; Smith v. Knapp, 27 id. 281, 282.)

In these and similar cases, however, the question admitted had no direct relation to the subject of the inquiry. Thus, in Caspar v. O’Brien, the question was as to the fact of naked ownership at a particular time, while, as the court said, “ the issue to be determined by the jury involved the lonafides of the possession and ownership at the time of the loan made by the plaintiff.” In each of the cases the witness was permitted to testify to some particular fact actually within his knowledge, not to his conclusion from such fact. The questions here attempted to be put “were,” as Judge Freedman said in Caspar v. O’Brien (supra), “ subject to the criticism that they or either of them embraced the whole merits of the case and left nothing for either court or jury to decide.”

As to' certain other questions, not necessary to be enumerated, they were either incompetent or immaterial. It was, for instance, quite immaterial whether Yan Gelder was acting as Newton’s agent or acting for himself with Newton’s support. The fact was that-Newton lent Yan Gelder his credit and that he made himself responsible for the purchases. As to the question put to Yan Gelder ■ — ■ “ What was your arrangement with Mr. Jones when you purchased the goods of him?” — it is enough to say that the witness testified that originally he made no arrangement with Jones; that he was ashamed to go to him, and that the arrangement was made directly between Jones and Newton. There was no suggestion of a different arrangement with regard to the goods in question, nor was it intimated that the inquiry related to a new arrangement. If the defendant, by any of these questions, intended to show any variation in the existing agreement, he should certainly have avowed his purpose, and put his questions accordingly. But, even if he had avowed such a purpose, we think the questions as put were still improper. We may add that the only time the defendant’s counsel hinted at the possibility of a somewhat different arrangement the court said : “ If he (the defendant) can testify to any conversation with the plaintiff’s agent that is all very well. ' He may do so.” But no such conversation was asked for.

The use of the words “ payment guaranteed ” upon the bills made out to the defendant did not tend to vary the original undertaking or to turn it into a guaranty. That was simply the form used to express approval of each particular transaction. It amounted to nothing more than the defendant’s guaranty of his own debt, which, under the authorities, is not a collateral but an original undertaking. (Fowler v. Clearwater, 35 Barb. 143; Brown v. Curtiss, 2 Comst. 225; Gardell v. McNiel, 21 N. Y. 336; Johnson v. Gilbert, 4 Hill, 178.)

There was nothing in the conversation between Yan Gelder and the plaintiff, wherein the former asked advice as to whether he should continue in business, which affected the transaction. Jones then made no agreement to extend the existing credit or to change the existing relation of the parties. He neither said nor did anything which could prejudice the defendant. He was simply asked for his advice as to whether Van Gelder should go on. His answer was that Van Gelder ought to be the best judge of what he should do. Einally, when pressed, he asked Sharts what he thought, and when Sharts answered, “ I think he had better go on,” the plaintiff added, “Well, I do too.” The contention that the defendant was entitled to notice of this conversation from Jones, and was in some way defrauded because' such notice was not given him, is hardly worthy of consideration.

The judgment appealed from and the order denying the defendant's motion for a new trial should be affirmed, with costs.

Van Brunt, P. J., and Parker, J.', concurred.

Judgment and order affirmed, with costs.


author: Barrett, J.: Follett, J.:

text:
    Mary Foster Long and Others, Respondents, v. Marion L. Rodgers and Others, Defendants; Charles H. Seymour, Individually and as Executor, etc., of George W. Long, Deceased, Appellant.

      Revocation of the prolate of a will— Code of Civil Procedure, § 2658a, relates, after the expiration of one year, to rights in real property.

    .A person interested in the estate of a testator must apply for the revocation of the probate of the will within one year after the recording of the decree admitting the will to probate, and if such application is not made within one year, then, as to the personal property of the deceased, the probate concludes all mankind.
    Under the provisions of section 2653a of the Code of Civil Procedure the next of kin of a testator cannot maintain an action in the Supreme Court, after the expiration of one year from the probate of a will, to have the invalidity of such probate determined.

      .Semble, that a person interested in the will may bring an action under this section, after the expiration of one year, to determine the title to real estate devised thereby.

      Appeal by the defendant Charles H. Seymour, individually and as executor, etc., of George W. Long, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of April, 1894, granting the plaintiffs’ motion for an order restraining and enjoining the defendant Charles H. Seymour, his agents, etc., from the further prosecution of a certain proceeding pending in the Surrogate’s Court of New York county for the judicial settlement of his accounts as executor under the will of George "W. Long, deceased.

      IT. If. Wa/rd, for the appellant.

      If. II. Whitmcm, for the respondents.
   Barrett, J.:

The precise question here is whether, under section 2653a of the Code of Civil Procedure, enacted in 1892 (Chap. 591), the next of kin of a testator can maintain an action in this court, after the expiration of one year from probate of the will, to have the invalidity of such probate determined. The injunction which was granted at Special Term restrained Mr. Seymour, as executor of the deceased Long, from proceeding in the Surrogate’s Court with the judicial settlement of his accounts. These accounts had reference solely to-the personalty. If, therefore, the probate of the will as a will of personal estate was conclusive upon the plaintiffs after the lapse of one year, the executor was properly accounting when the injunction was granted.

The question then is, did the Legislature, in adding this new section 2653a to the article of the Code entitled Revocation of Probate,” intend to»repeal the rest of the article or at least to do-away with all existing provisions as to the effect of probate after the lapse of one year ? If it did not, then, clearly, the probate here was conclusive. Por a person interested in the estate ” must apply for revocation within one year after the recording of the decree admitting the will to probate. (Code Civ. Proc. § 2648.) If such application is not made within one .year, then, as to personal property, the probate concludes all mankind.” {Hoyt v. Hoyt, 112 N. Y. 505.)

As to the legislative intent we think there can be no doubt. It-was to afford relief where relief was needed- — -namely, with regard to real estate; not to uproot a system of long standing and wholesome operation with regard to personalty. The object was to expedite, not to protract, the settlement of estates. The mischief aimed at was plainly the inability under existing law to quiet titles to real estate. There was no trouble about personalty. As to that, an estate could always be settled within a reasonable time after the expiration of the year. "What was wanted was some way of making the probate conclusive as to realty within a reasonable time. And for this the new section provided.

In Anderson v. Anderson (112 N. Y. 104) it was held that a devisee of the real estate, in possession of the property devised, could not maintain an action to establish the will against the heirs at law. The heirs could choose their own time to bring ejectment, and one by one, at varying epochs, could question the will. It was to remedy this evil, to enable persons interested in sustaining a will as to real estate to gather all possible contestants into one forum, and, in effect, to “conclude all mankind,” that the section in question was added. That section, it will be observed, was not enacted as an independent law, but was engrafted upon the Code — following the sections regarding the “ revocation of probate.” These sections were not repealed in express terms. On the contrary, though before the Legislature, they were suffered to remain. This is apparent from the, title of the act, which reads: “ An act to amend article second, title three, of chapter eighteen of the Code of Civil Procedure, by adding thereto a new section to be known as section twenty-six hundred and fifty-three a.” (Laws of 1892, vol. 1, p. 1136, chap. 591.)

It is clear, therefore, that the intention was in adding this section to embrace it within the existing system, not to substitute it therefor. And there is no inconsistency or irreconcilable repugnacy between the two systems, when the mischief aimed at is advisedly considered. As to personalty, the function of the existing statutes continues and the effect of probate after lapse of a year remains unaltered. This function does not conflict with the function of the new section, which operates upon real estate, and which affords a practical method of making that conclusive which otherwise would remain indefinitely presumptive.

There is nothing in the phraseology of the new section which militates against this construction. It is true that we find these words therein : “ It shall be tried by a jury, and the Arerdict thereon shall be conclusive as to real or personal property,” etc. But this does not say that a person interested in the estate of the decedent ” shall not be otherwise concluded. Nor does it limit the effect of his failure to apply for revocation under sections 2647 and 2648 within the year. It may entitle “ a person interested in the will ” — which is the phrase used in the new section to indicate the person who may proceed thereunder — as distinguished from “ a person interested in the estate ” (which is the phrase used in section 2647), to bring the action to validate the will, even during the running of the year. But it certainly does not authorize a person who has omitted to apply for revocation within the year, and as against whom the probate has become conclusive, to inaugurate a fresh contest thereafter.

We think the executor here was properly proceeding with his judicial accounting under the statute when this suit was instituted, and that he should not have been interfered with.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the injunction dissolved, with ten dollars costs.

Yan Brunt, P. J., concurred.

Follett, J.:

Under section 2653a I think an action can be maintained to set aside or to establish the probate of a will. Otherwise I concur.

Order reversed, with ten dollars costs and disbursements, and injunction dissolved, with ten dollars costs.


text:
    George Philip Wagner, Respondent, v. The New York Elevated Railroad Company and Another, Appellants.

      Damages to real estate caused by an elevated railroad — requests to find benefits and advantages in detail — no presumption that evidence was not considered because not found.

    In an action brought to recover damages to real estate caused by the maintenance and operation of an elevated railroad, it appeared that the justice before whom the action was brought acted upon correct principles in making the award, the essential fact being tile depreciation of the fee and rental value of such premises over and above all benefits and advantages resulting to the same from the maintenance and operation of the road.

      3eld, that he was not bound to specify, at the request of the defendants, each of those benefits and advantages in detail;
    That it by no means followed that because he declined to find evidence that he did not consider it;
    That a judge or referee before whom the action is tried is not bound to find mere statements of evidence not disputed or disputable.
    Appeal by the defendants, The New York Elevated Railroad Company 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 New York on the 24th day of January, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

      Ezra A. Tuttle, for the appellants.

      W. O. EeeTcham, for the respondent.
   Barrett, J.:

This appeal presents no new question upon the merits. The trial justice awarded reasonable sums for past damages and for injury to the fee. The evidence supports his conclusions upon these heads, and we see no reason, after full consideration of the argument and brief of counsel, to disturb his judgment.

The main contention of the appellants is that the learned justice erred in his rulings upon their proposed findings of fact, notably in. refusing to find the seventeenth, eighteenth, twenty-fourth, twenty-fifth and twenty-sixth.

These proposed findings read as follows:

“ 17. The fee value of plaintiff’s land, exclusive of the buildings, is several thousand dollars more to-day than in 1873.
“18. The fee value of plaintiff's lots, exclusive of the building, has steadily increased since the construction of the defendants’ road, :and the same is now more valuable than at any time prior to the •construction of said road.”
“ 24. Since the building and use of defendants’ railroad and station aforesaid in Ninth avenue the property in suit in the neighborhood of the same has come into greater demand for business uses, .and such demand has greatly increased the fee value of Ninth .avenue property in the locality, including the land described in the complaint.
. “ 25. The presence of the said station constitutes a material element of advantage and benefit to the premises in suit, and increases the availability thereof and the variety of uses to which the same may be profitably put.
“ 26. The existence and operation of the defendants’ railroad in Ninth avenue has rendered the premises in suit far more accessible than they otherwise would be. This increase of accessibility has been a benefit to the plaintiff’s property and. has increased the value thereof.”

There was no error in thus refusing to find as requested. The •“ seventeenth ” was not a request to find a relevant fact, but mere •evidence. The same observation applies to the “ eighteenth.” As to the remaining requests, it is sufficient to say that the learned justice found that the damages awarded consist in the depreciation •of rental and fee value over and above all benefits and advantages to the premises, whether general or special, resulting from the maintenance and operation of the defendants’ railroad. The following findings were also made:

Second. In determining the question of the existence of the impairment of the fee or rental value of plaintiff’s remaining prop-erty, the defendants are entitled to have taken into consideration, as .against the physical inconvenience occasioned by the interference with the plaintiff’s easement of light, air and access, all advantages to the said property, whether general or special in their nature, resulting from the maintenance and operation of defendants’ railroad in Ninth avenue and the proximity of its stations. ■
Third. In proving such an impairment of the fee or rental value of the remaining property as is spoken of in the preceding ruling of law, the burden of proof is upon the plaintiff. Such burden of proof is not sustained by merely showing any fact which is equally consistent with the absence of damage and with its presence.
Fourth. The plaintiff does not sustain the burden of proof by merely showing the direct physical effects of the railroad upon his property. In order to prove substantial consequential damage, he must show that the fee or rental value of the property has so far deviated from the former course of values of such property, determined by general causes, as to give rise to the inference that the disadvantages of the defendants’ railroad have preponderated over the advantages.
“ Fifth. Plaintiff is not entitled to any injunction unless he has proved that the net effect of the defendants’ railroad upon his property, as defined in the preceding ruling of law, is injurious to its pecuniary value.
Sixth. The plaintiff is not entitled to recover damages in this action, except to the extent, if any, by which the disadvantages of the defendants’ railroad have exceeded the advantages thereof to said premises.”
“Ninth. No damages can be recovered in this action for any lessening of the value of the premises in question which is due, not to the immediate effects upon said premises of the maintenance and operation of defendants’ railroad and the incidents thereof, but to the indirect and remote effect resulting to said property from a change in or limitation of the uses to which other abutting property upon Ninth avenue has been or can be applied, or from a change in the general character and appearance of the street or the general nature of the business there conducted, caused by the effect of defendants’ railroad upon such other property.”

It thus appears that the learned justice acted upon correct principles in making the award which he did. The essential fact was the depreciation of fee and rental value over and above all benefits and advantages resulting from the maintenance and operation of the road. He was not bound to specify each of these benefits and advantages in detail. That was asking him to find the various evidential matters upon which the claim of benefit and advantage rested.

It by no means follows because the learned justice declined to find evidence that he did not consider it. It is, in fact, apparent from the findings which were made that he fully considered all the evidence adduced by the defendants, and gave them the benefit of every fact which that evidence established. The case upon this head is within the principle of Steubing v. The New York Elevated Railroad Company (138 N. Y. 658). There a finding was requested substantially like the twenty-sixth under consideration, namely, that the existence of the defendant’s station and railway and the maintenance and operation of the same have rendered the premises in suit accessible to the other parts of the city pf New York. The court said that this request was properly refused. It was “ a mere statement of evidence, not disputed or disputable, which the referee was not bound to find.” - (P. 661.) Another finding was there requested in these words: “ The effect of the proximity of defendant’s station at Third avenue and Fifty-third, street to the premises in suit is advantageous to the business portion of said premises, and produces a special benefit to the same for business usés.”

This finding, it will be observed, is almost in the same words as the twenty-fifth under consideration. In commenting upon it, the court said that “ the effect of the proximity of the station to the plaintiff’s lots was not the subject of inquiry. The matter to be determined was the effect upon the plaintiff’s lots of the construction and maintenance of the railroad in front of the lots, and in determining that the referee was bound to take into consideration the proximity of the station, and all the other facts bearing upon the matter. It cannot be perceived that any harmful error was committed in refusing this request.”

As to'the requests generally, the language of Earl, J., upon page 662, exactly fits the present case. “ It is obvious,” he observed, “from the findings actually made that the law was applied as requested, and that the damages awarded appear to have been estimated upon the proper basis.”

The appellants point out that in a single instance the learned justice acceded to their request for a finding of mere evidence, and they complain of his inconsistency in not continuing to do so through. the sixty-one requests which they submitted to him.

There is nothing in the record to indicate that the learned justice intended, to accede to tlie appellants’ pernicious practice in this regard, and the single instance in question of a departure from the true and scientific rule as to findings was doubtless an oversight. This is not to be wondered at when we consider the mass of specious verbiage put before him. At all events, there is nothing in this one particular finding, or in the fact that it was acceded to, which would justify us in holding that refusals in other instances to find evidence meant that the learned judge did not intend to, and did not, in fact, consider the matter embraced within such proposed findings before reaching the final result.

We think that the judgment appealed from was right, and that it should be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


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    Howard S. Jaffray and Another, Appellants, v. Clara Krauss, Formerly Clara Burger, Respondent.

      Tlie accommodation indorser of a note is not a surety — demand of pa/yment and notice of non-payment cure necessa/ry.

    The payee of a note who indorses the same for the purpose of giving credit, to the maker does not thereby become a simple surety, although such indorser knows that the indorsement is asked for the purpose of giving credit to the maker upon the purchase of goods and that the note will be used for that purpose.
    The complaint in an action brought to recover the amount of a promissory note is properly dismissed as against the indorser, where there is no allegation therein of presentment and demand of payment and notice to the indorser of such presentment and demand and of non-payment thereof.
    Appeal by the plaintiffs, Howard S. Jaffray and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of May, 1894, upon the dismissal of the complaint directed by the court upon a trial before the court and a jury at the New York Circuit.

      I. L. Miller, for the appellants.

      J. B. Weil, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover upon promissory notes made by one J. Burger to the order of Clara Burger, the defendant, and payable in the State of Illinois. The defendant indorsed the same :as follows : For value received I hereby charge my separate estate with the payment of this note.” There was no allegation in the ■complaint of presentment, demand of payment and notice to ■defendant of such presentment, demand and non-payment, and the court below dismissed the complaint upon the ground that such allegation was necessary in order to charge the defendant as indorser.

It is urged upon the part of the appellants that the complaint alleging that at the time of making the notes the maker thereof was desirous of purchasing goods from the assignors of the plaintiffs, and that as a condition of the sale and delivery thereof and as security for the payment of the same the defendant, who was then the wife of the maker of the notes, indorsed and wrote upon the notes as above stated, and that the same were then passed with her privity and consent to the assignors of the plaintiffs, who thereupon sold and delivered said merchandise upon the faith of said security and relying thereon, avers that the defendant writing on said notes was for the jmrpose of becoming surety for her husband ; that they were so used- with her privity and consent, and that the plaintiffs parted with their goods relying on such security; and that she being merely a surety upon the notes, a demand of payment upon the maker and notice of refusal to pay to the indorser were not necessary.

Ve are unable to read the contract as is contended for by the appellants. The indorsement in question by the defendant made her no more a surety upon the notes than that of any other indorser, the special character of the indorsement being made because she was a married woman in order that her separate estate might be charged by such indorsement. It is to be observed that the notes were payable to her order and indorsed by her, as far as the transfer of the notes was concerned, in blank, and she simply made the special provision in order to charge her separate estate. It was clearly intended to be an indorsement by this married woman, and there was no intention upon her part of assuming any other liabilities than any payee by indorsing a promissory note usually intends. The payee of a note who indorses the same for the purpose of giving credit to the maker does not thereby become a simple surety, although such indorser knows that the indorsement is asked for for the purpose of giving credit to the maker upon the purchase of goods, and that the note will be used for such purpose. That is the whole transaction as alleged in the complaint, and such allegation in no way alters the rights of the defendant or changes the character of her contract.

Ve think, therefore, that the judgment appealed from should be affirmed, with costs.

Eollett and Parker, JJ., concurred.

Judgment affirmed, with costs.


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    Sara J. Keene, Respondent, v. The Metropolitan Elevated Railway Company and Others, Appellants.

      Damages caused by an elevated railroad — not a/waa’dedfor premises not fronting on the cmenue on which, such railroad is.

    Where real property is so situated that it is properly considered as a single parcel, although the total frontage may not he upon the street occupied hy an elevated railroad, damages may be allowed for injuries to it caused hy the construction, maintenance and operation of the railroad, but where such premises are improved hy buildings distinct within themselves, some of them having no frontage upon the avenue on which such railroad is operated, it is erroneous to award damages for an alleged injury to such of the premises as have no frontage on such avenue; the fact that there is architectural unity of construction in such buildings and unity of ownership does'not alter the rule.
    Appeal by the defendants, The Metropolitan Elevated Railway Company and others, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of the county of New York on the 30th day of August, 1893, upon the decision of the court rendered after a trial at the New York Special Term.

      22, Tolies, for the appellants.

      J. A. Mtvrray, for the respondent.
   Van Brunt, P. J.:

This action was brought to obtain an injunction against the operation of the defendants’ railroad or the payment of damages because of the interference with easements in the street in front of the plaintiff’s premises. The premises in question are situated at the southwest corner of Ninth avenue and Fifty-seventh street, having a frontage on the avenue of 125 feet and on the street of 100 feet. The defendants have constructed and maintained and are operating an elevated railroad on Ninth avenue. The building upon the premises in question was constructed in 1880 and 1881, and was intended for use and is now used as an apartment house. The building is divided into five distinct and unconnected apartments on each floor except the first and eighth floors. These apartments are parallel with Ninth avenue, except one which fronts on Ninth avenue and runs across the rear of the other apartments. The apartment on the corner of Ninth avenue and Fifty-seventh street and the apartment fronting on Ninth avenue in the rear of the other apartments are the only ones fronting on Ninth avenue. In the award made in this action damages were allowed for alleged injuries to the apartments which had no frontage on Ninth avenue as well as to the two which had such frontage, and the question presented upon this appeal is whether such an allowance can be justified.

It seems to us that it cannot. The three apartments which fronted on Fifty-seventh street had no easements of light, air and access upon Ninth avenue. While damages have been allowed where premises are so situated that they are to be considered as a single parcel, although the total frontage might not be upon the street occupied by the elevated railway, yet where such premises are improved by buildings distinct within themselves, some of them having no frontage upon the avenue occupied by the railroad, it is difficult to see upon what theory an award for the destruction of easements upon the avenue upon which such buildings have no frontage can be predicated. In the case at bar the three apartments have no frontage upon Ninth avenue, the street occupied by the railroad. They, therefore, can have no easement in the light, ail" and access upon such avenue, as such easements have been held to belong only to the abutting owner. The apartments in question, therefore, do not seem to come within the class to which relief has been granted in actions of this character.

It has been urged that because of the fact of there being unity of construction in the building and unity of ownership a different rule should obtain. But it is apparent that notwithstanding the unity of construction and unity of ownership these premises are occupied as distinct and separate buildings, just as much as though there was no architectural unity and there was a division of ownership. It is difficult to see how mere architectural unity or single ownership can give an easement upon a street where none would exist even if the occupation was the same and the interior arrangements were the same but the exterior appearance showed diversity.

We think, therefore, under the findings of the learned court at Special Term, that the apartments fronting upon Fifty-seventh street had no right to enter into the consideration of a recovery.

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

Parker and Barrett, JJ., concurred.

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


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    William Bainbridge Jaudon, Plaintiff, v. Richard Somers Hayes, Defendant.

      Construction of will — a construction vesting estates will he favored — the intent of the testator must govern.

    It is tlie rule in the construction of wills to favor the vesting of estates, and, where all other things are equal, such a construction will he adopted as will coincide with such rule; but if the intention of the testator requires a different interpretation, such intention must necessarily be followed.
    A will contained the following clause:

      “ Fifthly. The Medal voted to me by Congress I bequeath to my beloved wife, Susan Bainbridge, during her natural life; on her demise to be handed down to my oldest surviving daughter, and, on her demise, in succession to my next oldest surviving daughter, and, on the demise of all my daughters, then to be given to my oldest grandson living ; if there be no grandson, it is my will that it go in succession to my oldest granddaughter living, in the same manner as before directed to my daughters. The Urn presented to me by the citizens of Philadelphia, for the capture of the British frigate Jam, I bequeath in the same manner as I have done the medal voted to me by Congress, and the remaining six pieces of Silver Plate presented to me by the citizens of Phila- . delphia to be divided between my daughters aforenamed in the manner their mother, Susan Bainbridge, may select, or, in case of her demise, by lot.”

      Held, that the testator meant by the words, “my oldest grandson living,” not the oldest grandson living at the time of his death, but his oldest grandson who might be living at the time of the death of his last surviving daughter ;
    That it was the intention of the testator to confer upon the oldest male representative of his family, after the death of his daughters, the possession of the relics in question, and that, after the death of his daughters, when the succession reached his grandchildren, so long as any male representative was left, such male representative was to take; and it was only in default of male representatives subsequent to the death of his daughters that female representatives should be admitted.
    Submission of a controversy upon an agreed statement of facts under section 1279 of the Code of Civil Procedure. •

      Matthew Daly, for the plaintiff.

      Juliam, T. Davies, for the defendant.
   Van Brunt, P. J.:

This submission is made for the purpose of construing a clause in the will of Commodore Bainbridge, who died in the year 1833, a resident of the State of Pennsylvania, in which State the will was admitted to prohate. Both plaintiff and defendant being residents of the State of New York, this question is submitted to this jurisdiction.

The clause of the will in question reads as follows:

“ Fifthl/y. The Medal voted to me hy Congress I bequeath to my beloved wife, Susan Bainbridge, during her natural life; on her demise to be handed down to my oldest surviving daughter, and, on her demise, in succession to my 'next oldest surviving daughter, and, on the demise of all my daughters, then to be given to my oldest grandson living; if there be no grandson, it is my will that it go in succession to my oldest granddaughter living, in the same manner as before directed to my daughters. The Urn presented to me by the citizens of Philadelphia, for the capture of the British frigate Ja/oa, I bequeath in the same manner as I have done the medal voted to me by Congress, and the remaining six pieces of Silver Plate presented to me by the citizens of Philadelphia to he divided between my daughters aforenamed in the manner their mother, Susan Bainbridge, may select, or, in case of her demise, by lot.”

The medal and urn mentioned in the said will, on Mrs. Bainbridge’s death, passed to Mrs. Susan B. Hayes, who was the oldest of the daughters and their last survivor. At the time of the death of Commodore Bainbridge, William Bainbridge Hayes was his only grandson. He died in 1849, intestate and unmarried, leaving Susan B. Hayes, his mother, surviving him. At the time of the death of the commodore’s last surviving daughter, the plaintiff, William Bainbridge Jaudon, was the oldest grandson living of Commodore Bainbridge; and the question presented is whether the testator meant by the words his oldest grandson living, the oldest grandson living at the time of his death, or the oldest grandson who might be living at the time of the death of his last surviving daughter.

It is undoubtedly the rule in the construction of wills to favor the vesting of estates; and that where all other things are equal such a construction will be adopted as will coincide with this rule. But if the intention of the testator seems to require a different interpretation such intention must necessarily be followed. In the case at bar it seems to us that it was the plain intention of the testator to confer upon the oldest male representative of the family after the death of his daughters the possession of the relics in question ; and that after the death of his daughters, when the succession reached his grandchildren, so long as any male representative was-left, such male representative was to take; and it was only in default of male representatives subsequent to the death of his daughters that female representatives should be admitted.

Applying this rule it is apparent that the gift was intended to take effect at the time of the death of the last survivor of his. daughters; and that it was not intended that any right should pass, at the death of the testator except such contingent right as would arise from the fact of a person then fulfilling the conditions of the will; such interest to be defeated, however, if such couditions did not exist at the death of the last survivor of his daughters.

This seeming to us to be the plain intention of the testator,, the plaintiff is entitled to judgment, with costs.

Follett and Barrett, JJ., concurred.

Judgment ordered for plaintiff, with costs.