Opinion of the Court, per ANDREWS, J.

The will clearly contemplated a period of time when the duties of the executors as such should end, and they should assume the character exclusively of trustees for the widow and children of the testator. The duty to pay debts, and the legacies presently payable, and to construct a burial vault was strictly executorial, and upon the accomplishment of these purposes, the property was given "upon the further trust" to divide the residue, etc. The duty of division into shares, and to receive and apply the income of the several shares to the use of the beneficiaries respectively, could not be performed until the residue should be ascertained by an accounting. The decree on the accounting of the executors in 1877, embraced a statement of the executors' account as settled and allowed by the surrogate, showing the payment of debts and legacies, and stating the balance in their hands. The decree did not in term discharge the executors, but this was the reasonable intendment and legal effect of the direction that they should retain and hold the whole balance of the estate as trustees under the will. The fact that the trustees have not made an actual division of the trust fund into shares, as directed by the will, does not, we think, change the question. The aggregate fund has since the decree of 1877 been held by them in their character as trustees, and the duty of division may now be performed. The right to commissions as trustees cannot turn upon the fact that no actual division has yet been made. A denial of commissions on that ground would simply postpone their allowance until the actual separation. The will, as has been said, contemplated an eventual separation of functions and duties. The executors have upon a final accounting as executors been discharged as such. The fund has become exclusively a trust fund under the will, to be held by the trustees during the life of the beneficiaries named. The duties now to be performed by them are such as are usually devolved upon trustees of express trusts, and supervene upon the termination of the duties strictly executional, imposed upon them by the will.

The question of double commissions has been very recently considered by this court in the opinion of FINCH, J., in John

Statement of case.

son v. Lawrence (February 26, 1884), * and we think this is a case in which under the rule there laid down double commissions may be claimed. The jurisdiction of the surrogate to award commissions to testamentary trustees, since the Code of Civil Procedure, in a proper case, has been assumed in several cases. (Hurlburt v. Durant, 88 N.Y. 121; Johnson v. Lawrence, supra.) It was fully considered by the surrogate of New York (In re Roosevelt, 5 Redf. 601), and we concur in his opinion upon this question.

The order should be affirmed.

All concur.

Order affirmed.

ELVIRA VICK as Administratrix, etc., Respondent, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, Appellant.

Where a person in the employ of a railroad company travels back and forth from his home to the place where his services are rendered, upon the cars of the company, and his transportation, free of charge, constituted part of the contract of service, while so traveling he is an employe, not a passenger, and for an injury to him through the negligence of a coemploye the company is not liable.

After the removal of defendant's shops from R. to B. many of its employes at R. who still continued to reside there remained in its employ under an agreement that they were to be taken to B. every Monday morning, and brought back Saturday evening, free of charge, their wages beginning when they reached the shops in B., and ending when they left them. They were carried in a car called a shop car, in which other persons, who paid fare, were permitted to ride. G., plaintiff's intestate, who had been in defendant's employ in R., but was not employed at the time of the removal, after such removal applied for and was employed in his former position, with the agreement that he should be passed with the other employes in the shop car, and he was paid for his work in accordance with the arrangement stated. All of said employes traveled under a pass given to the master mechanic In going from R. to his work at B. in the shop car an accident occurred, caused by the negligence of defendant's em

* Ante, p. 154.

ployes, and G. was killed.

Statement of case.

In an action to recover damages, held, that he was an employe at the time, not a passenger, and defendant was not liable.

O'Donnell v. A V. R. R. Co. (59 Penn. St. 239), disapproved.

(Argued February 27, 1884; decided March 11, 1884.)

APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made April 14, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict.

This action was brought to recover damages for the death of George Vick, plaintiff's intestate, alleged to have been caused by defendant's negligence.

In December, 1878, the deceased, while riding in defendant's shop car, so called, from Rochester to Buffalo, received injuries through a collision caused by negligence of defendant's employes, from the effects of which he died.

The circumstances connected with the accident, so far as material, are stated in the opinion.

Edward Harris for appellant. The plaintiff's intestate, being at the time of the accident which caused his death in the defendant's shop car as its employe, plaintiff was not entitled to recover any damages by reason of his death. (Ross v. N. Y. C. & H. R. R. R. Co., 5 Hun, 488; 74 N. Y. 617; Russell v. II. R. R. R. Co., 17 id. 134; Gillshannon v Stonybrook R. R. Corp., 10 Cush. 228; Seaver v. B. & M. R. R., 14 Gray, 466.)

Wm. S. Oliver for respondent. The master can only set up the relation of master and servant as a defense to an action of a servant where the injuries were received while engaged in his employment. If the master's negligence is a matter extraneous to his specific employment, or if the injury be received at a time when the servant is not engaged in his duties, then the servant occupies the position or status of a stranger. (17 Wall. 508; Washburn v. R. R. Co., 3 Head (Tenn.), 639; Gillenwater v. R. R. Co., 5 Ind. 339; R. R. Co. v. Derby, 14 How. [U.S.] 468; Пenderson v. R. R. Co., 51 Penn. St. 315, 331; 33

Opinion of the Court, per MILLER, J.

use the

Md. 542; 41 id. 268; Thompson on Negligence, 1046; Baird v. Pettitt, 70 Penn. St. 477; Hutchinson Case, 5 Exch. 341, 353; O'Donnell v. R. R. Co. 50 Penn. St. 490; id. 239; Wood on Master & Servant, 779.) A carrier is bound to utmost care and caution for the safety of all passengers whom he carries, whether they are free or paying passengers. (58 N. Y. 126; Sherman & Redfield, § 263; Wharton on Neg., S$ 355, 641; 14 How. [U. S.] 468; 16 id. 469; 15 N. Y. 444; 5 Otto [U. S.], 655; 66 N. Y. 313; 107 Mass. 108; 3 Allen, 18.) A pass, purporting to be a free pass, may nevertheless be given for a consideration and the holder be a passenger for hire. (Stevens v. R. R. Co., 5 Otto, 657.) The questions submitted to the jury were properly submitted as questions of fact, or of mixed law and fact. (13 N. Y. 533; 71 id. 73; Packet Co. v. McCue, 17 Wall. 508; Preston v. Knight, 120 Mass. 5; 2 Thompson on Neg. 899, 1049; Packet Co. v. McCue, 17 Wall. 508; 22 Hun, 26; 38 N. Y. 353; R. R. Co. v. Stout, 17 Wall. 663; 58 N. Y. 451; 52 id. 323; 80 id. 622; 1 Abb. Ct. of App. Dec. 131; Wheatman v. Pearsen, L. R., 3 C. P. 422.)

MILLER, J. The recovery in this action is based upon the ground that at the time of the accident, which resulted in the death of the plaintiff's intestate, he was a passenger upon the defendant's car and not an employe. This is the most important question arising upon this appeal, for if the deceased was an employe, and, at the time he received his injury, in the service of the defendant, then the action cannot be maintained, and the court below erred in refusing to direct a verdict in favor of the defendant, as well as in denying the motion for a nonsuit, and in not holding, as requested, that the deceased was an employe at the time of the accident, and also in not charging the jury to that effect. The inquiry then arises as to the position the deceased occupied in reference to the defendant.

The evidence shows that he had been in the employment of the defendant, as a foreman in its tin-shops at Rochester, prior to December, 1876. The defendant at that time removed its

Opinion of the Court, per MILLER, J.

shops from Rochester to Buffalo, but before their removal the
deceased had left defendant's employment. Many of the em-
ployes in the tin-shop at Rochester continued in the employ
of the defendant after it had removed its shops to Buffalo, but
still resided at Rochester. By an arrangement made between
them and the defendant they were to be taken to Buffalo on
Monday morning, and brought back Saturday evening of every
week in the defendant's car. Sometimes they were carried in

a baggage car, sometimes in a passenger car, and afterward in
a passenger car called a shop car in which other persons, who
paid fares, were permitted to ride. No fare was required of
the men thus employed and transported, but by agreement a
deduction was made from their wages at an amount fixed
hour, being the same as when at work, for the time they were ́
upon
shops at Buffalo, and ending when they left them. In the month,

samur w

per or paying for madr

the train, their wages beginning when they reached the Jaco

Not at at

of January, 1877, the deceased applied for his former position they fo as foreman, and was employed accordingly by the defendant that

He asked if he could go with the rest of the men, and he was
told he would be passed with the rest of the men in the defend-
ant's shop car. Upon these terms he again commenced working
for the defendant as foreman in the tin-shop at Buffalo. The only
pass given was one to the master mechanic, Mr. Gould, under
which all the men who lived at Rochester and worked in the
shops at Buffalo traveled. There was no evidence upon the
trial showing that the deceased ever saw the pass, or that he
was acquainted with its contents. Ile was paid for his work
in accordance with the arrangement already stated.
It appears
that the contract for his employment in the tin-shops, and for
traveling between Rochester and Buffalo, while engaged in
his work, was one and the same contract, made at the same
time, and the whole must be taken together as an entire agree-

ment.

The essence of the contract was that the deceased should work for the defendant, as foreman of the tin-shop, and in consideration thereof it should pay him a price fixed per hour, and should transport him from his residence to the place where the work was to be done, and back again, upon its rail

they

the ride Her in