Decided May 26, 1876. The interest on money deposited by the public administrator in bank, subject to the joint order of himself and the Comptroller, and which is paid by the bank, belongs to the lawful owners of the fund, not to the City. The law relieving the city from paying interest after the money is deposite in the City Treasury, after the public administrator has settled his account, does not change the rule. Appeal from the decree of the Surrogate of the County of New York, made upon the final settlement of the public administrator. The public administrator received $32,288. 48, belonging to an intestate, which was deposited, as the law requires, in a bank designated by the city, to the joint credit of himself and the Comptroller of the city of New York. While it remained on deposit interest was allowed on it to the amount of $2,774.23. The heirs of the intestate. sought to recover the amount of inter. est as a part of the funds. Algernon S. Sullivan, in person. others. F. R. Coudert, for infants. Held, That there is no statute author ity for the ground claimed by appellant, viz: That this interest belongs to the city, to recompense it for the care and preservation of the property, but that the rule of the common law prevails, and that the increase belongs, with the principal, to the beneficiaries. The statute by express terms relieves the city from the payment of interest after the public aministrator has settled his account, and paid the money into the City Treasury, to await its unknow. owners. No such disposition had been made of the fund previous to its pay ment. The interest previously accrued will therefore follow the principal, and form the proper subject of distribution. The decree was right, and should be affirmed without costs. Opinion by Daniels, J.; Davis, P.J., and Brady, J. concurring. EVIDENCE. EXPERTS. N. Y. SUPREME COURT. GEN. TERM. FOURTH DEPARTMENT. Swartwont, respt. v. The N. Y. C. & II. R. R. R. Co., applt. Decided April, 1876. Evidence of experts is only necessary when the question at issue involves a But where peculiar science or skill. the question is one involving merely matters of common sense, evidence of experts is incompetent. This was an appeal from a judgment in favor of defendant. This action was brought for an injury to plaintiff's cattle, and on the trial the question arose as to the construction of a cattle-guard, and whether the construction was proper, and on the trial the question was asked by defendant's counsel, under objection, of one of its witnesses "whether the cattle guard over which plaintiff's horse passed was a proper one." Beardsley, Cunningham & Burdick, for applt. Spriggs & Mathews, for respt. Held, The question was incompetent. The question whether the cattle-guard was a proper one or not was not a question of skill merely. Where the manner of its construction was shown, the jury was as competent to speak as any expert. Whether a cattle-guard, so constructed as to allow the feet of cattle and horses to pass through, is properly con structed, can very well be determined by the jury. Judgment reversed. Opinion by Mullin, P. J. CONSTRUCTION OF WILL. N. Y. SUPREME COURT. GENERAL TERM. Ragan, applt., v. Allen et al., respts. In a codicil to the will the said testator recites that he had given his said wife the sum of $2,000 as above, and that he had also bequeathed "the remainder of his real and personal estate to others." No fund was designated by the testator out of which said legacies should be paid. Geo. N. Smith, for applt. Held, That when a testator gives several express legacies, and then with Where by a will several legacies are left, and then the testator leaves all the rest, residue and remainder of out creating any fund or trust for their the real and personal estate to other payment, makes a general residuary parties, without creating any express disposition of the whole estate, blendfund for payment of legacies, the ing the real and personal estate togethreal estate is charged with the lega-er in one fund, the real estate is to be charged with the legacies, upon the cies. Term. Appeal from judgment at Special ground that in such case the rest, residue, and remainder can only mean what remains after satisfying the previous legacies. (Hill on Trustees, p. 360; Tiffany & Ballard, on Law of Trustees, p. 305, &c.) A certain specific legacy was left by the testator to his wife to be in lieu of dower. The personal estate after payment of the debts was not sufficient to pay such legacy. The will, after providing for the payment of the testator's debts, gives to the plaintiff (testator's wife), in lieu of dower, "the sum of $2,000, to be held "by her, and for her use, comfort, sup"port, and maintenance, to be invested "and controled during her natural life, "as she may desire, and to spend so "much of the principal and interest "thereof as may be needed for her sup"port, comfort, and maintenance, and "after her decease to be divided be"tween her two daughters and others." The will then gives three other legacies to different children. Then there was a clause as follows, viz: "I give and bequeath all the res', "residue, and remainder of all my real "and personal estate of every name "and kind soever, to my two daugh"ters." Judgment reversed. and Noxon, J., concurring. PROMISSORY NOTE. ERATION. CONSID N. Y. COURT OF APPEALS. Earl, respt., v. Peck, administrator, &c., applt. Decided April 11, 1876. In an action on a note given by an to leave to the jury, the question of This action was brought to recover position would, in effect, have deprived $1,000 and interest of a promissory the intestate of the power to determine note given by defendant's intestate to the value of the services for himself, plaintiff, as alleged, for services render- which he had a right to do. d. The deceased was a physician and Judgment of General Term, affirmmade the note after he had taken by ing judgment in favor of plaintiff, afmistake a fatal dose of aconite. Ile firmed. was conscious of his approac! ing death, which occurred about two hours after the note was made. Plamtift had been Opinion by Church, Ch. J. EVIDENCE. OBJECTIONS. housekeeper for the deceased, who was N. Y. SUPREME COURT. GENERAL TERM, a bachelor, for seven or eight years, and he was indebted to her for her services, and the evidence intended to show that at some time during the service it was agreed that the amount of compensation should be left to the in testate. II. M. Taylor, for applt. Held, That mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or ndue influence, was not a defence to the note. That it is not necessary that the consideration of a note shall be equal in pecuniary value to the obliga tion incurred. If no part of the consideration is wanting at the time and no part of it subsequently failed, although inadequate in amount, the note is a valid obligation, while a want or failure of consideration; in whole or in part is a good defence to the whole note, or to the extent of such failure, (2 Hill 606; 21 Wend. 558; 42 N. Y. 862. Upon the trial the court charged, in substance, that if the note was used as a mere subterfuge for a testamentary bequest plaintiff could not recover to the extent that it was so intended. Defendant's counsel then requested the court to instruct the jury that they might find what the real indebtedness! ought to be and regard the balance ast a bequest. This request was refused. Held, No error; that the latter pro FOURTH DEPARTMENT. Lyng, applt. v. Boyd, respt.. For the reception of incompetent evi- Appeal from a judgment for defendant in County Court. On the trial certain facts were proved by hearsay evidence under objection, but subsequently in the trial the same facts were proved by competent evidence. There was a judgment in Justices Court for plaintiff. The county judge reversed judgment on the ground of the admission of this evidence. Scoville & Knapp, for applt. Held, That although the evidence was incompetent, the same facts having been proved by competent evidence during the trial, no one was injured by the reception of the evidence. This court is required to give judgment according to the justice of the case without regard to the technical errors and defects which do not affect the merits. Judgment of the County Court reversed, and that of Justice affirmed. Opinion by Mullin, P. J. N. Y. SUPREME COURT. GEN'I TERM, John Gorgen, respt., v. Jacob Balzhouser et al., applts. Evidence, although admitted, will not be allowed to impeach a witness, unless some foundation is first laid for it, by calling the attention of the wit ness that is sought to be impeached to the time when and pace where the conversation occurred that is introduced as impeaching testimony. The action is replevin for a quantity As evidence in chief no foundation was necessary, but as impeaching evidence it was necessary to call the attention of the witness to the time when and place where the conversation proposed to be proved occurred. As evidence upon the merits it was fatal to the defendant, and, to justify the court in holding that it was not so received, it should be clearly shown that it was received for the purpose of impeachment only. Judgment reversed. Opinion by Mullin, P. J. MORTGAGE FORECLOSURE. SALE. of brooms levied on by the defendant, N. Y. SUPREME COURT. GENERAL TERM. Wright, a constable, on an execution against one Seely. The issues were tried before a ref eree, who found for plaintiff. The defence was that the brooms were the property of one Seely, and taken on the execution against him in favor of the other defendant. On the examination of a witness in the case, he was asked if he did not hear Seely say, at the time the replevin papers were drawn, that "he (Seely) had no interest in the brooms" The evidence was objected to on the ground that it was improper and immaterial; that the declarations of Seely cannot be given in evidence against defendants when made to third parties. Seely, on the part of the defendants, had testified that he, and not the plaintiff, owned the property in question. THIRD DEPARTMENT. McDona.d, resp., v. Whitney, applt. Decided May, 1876. Where the mortgagor sells portions of the mortgaged premises, they will, on foreclosure, be sold in the or der of their alienation. Grantees will be protected only to the amount of purchase money paid by them. In such a case the release of one lot does not necessarily discharge the others. Appeal from a judgment in foreclosure, directing the order in which premises should be sold. The mortgagor divide the mortgaged premi es into six lots and one half lot, He sold one to W. for $700, on which $145 had been paid. Subsequently he sold to H., the mortgagee releasing the property with knowledge of the sale to W., and applying part of the consideration Held, That the evidence of the con- on the mortgage. Afterwards lots were versation was clearly incompetent to sold to McD., and a part was still unaffect the rights of the parties to the sold. The judgment directed the sale action, but it was competent to im- first of the part not conveyed; second, peach Seely if any foundation had W.'s lot, out of the avails of which been laid for it. only the amount unpaid was to be ap plied, and then the lots of McD.. W. also had the privilege of avoiding the sale by payment of the amount ue on his lot. W. appeals. Held, That the provisions of the judgment were correct. The release of the lot sold to H. did not discharge W., nor must the whole consideration be credited on the mortgage. The principle is equitable, not legal. W. is entitled to be and is protected to the amount which he has paid. Nor should the lot of McD. be sold before that of W.. So far as W.'s purchase money remains unpaid, his lot should be sold first. (2 Paige, 300; 8 Paige, 361; 2 N. Y. 89.) Judgment affirmed, with costs. Opinion by Learned, P. J.; Bockes and Boardman, JJ., concurring. PRINCIPAL AND AGENT. ENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION. Bower v. Peate. Decided February 25, 1876. supporting, as far as was necessary, the adjoining buildings affected by the alteration, during the progress of the work, and make good any damage which might be sustained by any buil ings during the progress of, or in consequence of, the alterations, and satisfy any claims for compensation arising therefrom which might be substantiated. The contractor thereupon proceeded with the work, pulled down the house and excavated the soil to a lower depth than the foundation of plaintiff's house, and rebuilt defendant's house. owing to defective underpinning or other support to the soil and walls, the plaintiff's house was damaged. But Verdict was rendered for plaintiff, with leave to move to enter the verdict for defendant, on the ground that defendant's contractor, and not defendant, was liable. A rule having been obtained accordingly, Held, That a man who orders a work to be executed, from which, in the natWhere one employs a contractor to re-ural course of things, injurious consebuild his house, under an agreement that the contractor shall make good quences to his neighbor must be expectany damage to a neighboring house, ed to arise unless means to prevent and the contractor uses insufficient them are adopted, is bound to see to the means to support said house, whereby doing of that which will prevent the it was damaged, the employer is mischief, and cannot relieve himself liable. Action for damages to plaintiff's house by the negligent excavation of ground adjacent thereto. The plaintiff and defendant were owners and occupiers of two adjoining houses. Defendant employed a contractor to pull down and rebuild his house, making his foundations lower than those of plaintiff's house. The contract provided that the contractor should take upon himself the risk and responsibility of shoring and of his responsibility by employing some one else to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed, from which, if properly done, no inju rious consequences can arise, and handing over to him work to be done, from which mischievous consequences wil arise unless preventives are adopted. While it may be just to hold the party authorizing the work in the former case |