Second Department, November, 1920. [Vol. 194. In the Matter of Proving the Last Will and Testament of CARL RAPP, Deceased, as a Will of Real and Personal Property. MINNIE MERKLE, Appellant; MARGARET F. REILLY, Respondent. Second Department, November 26, 1920. Wills - probate when due execution not shown clause. attestation The due execution of a will is not shown on an offer of probate, made within four months after execution, where it appears that the testator was a German unable to read the English language; that he was sick in a hospital at the time of execution; that the will was in English and was brought to the hospital by the proponent who also secured the witnesses, and the subscribing witnesses agree that after the will was signed the testator never requested them to sign nor did he publish or announce that the document was his will. Where the subscribing witnesses give meagre evidence, and even negative proof as to the formalities of execution, probate cannot be had by resort to the recitals of the attestation clause. APPEAL by the contestant, Minnie Merkle, from a decree of the Surrogate's Court of the county of Richmond, entered in the office of the clerk of said court on the 28th day of January, 1920, which admitted to probate a paper dated March 4, 1919, propounded as the will of Carl Rapp, who died in the Staten Island Hospital on March 6, 1919. William E. Stewart, for the appellant. John McCormick [Charles T. Rudershausen of counsel], for the respondent. PUTNAM, J.: The deceased had been a German saloonkeeper. It can be deduced from the testimony that although he had been in this country forty-three years, he did not understand English and could not read an English newspaper. Two daughters, Mrs. Margaret F. Reilly, the proponent, and Mrs. Minnie Merkle, the contestant, were the only App. Div.] Second Department, November, 1920. children. An estrangement between them began about the time of the mother's death in 1915. About 1917, Rapp, who had lived with Mrs. Reilly, came back to work as a janitor in a German boarding house in Staten Island. On Sunday evening, March second, Rapp was stricken with pneumonia, and was removed in an ambulance to the Staten Island Hospital at Castleton. His temperature was 104.4 degrees. He communicated with the hospital physician through an interpreter. Mrs. Reilly, the proponent, who had been notified, came to the hospital on Tuesday, March fourth. She brought with her a will which her husband had prepared about a month before. Proponent on the stand volunteered the statement that she read the will to her father. Counsel moved to have this stricken out, which motion was denied. The house physician and the nurse were asked to witness this will, but declined. Mrs. Reilly then went to the boarding house where Rapp had lived, and obtained three men, Stucken, Schultz and Fonday, whom she asked to witness the will. When they came to the bedside between eight and nine P. M. Stucken says that Rapp read the paper with his glasses, and then said: "All right. What can I do? Go ahead." All talk was in German. That he then raised up in bed and put out one leg and wrote his name on the paper upon a side table. Then Stucken signed and Schultz followed, who testified that Rapp remarked, "I give the property to Mrs. Reilly." Both witnesses agree that after Rapp signed the paper he never requested the witnesses to sign, and made no publication or announcement that the document was his will. It may be doubted whether decedent knew or comprehended its contents, in the English language. * * Where the subscribing witnesses give such meagre evidence, and even negative proof as to formalities, probate cannot be had by resort to the recitals of the attestation clause. Here is not a long lapse of time, with the likelihood of forgetfulness. The trial followed in less than four months. In Matter of Hermann (87 Misc. Rep. 476) Surrogate FOWLER points out that a rogatio testium is an essential part of the execution. In 1854 it was held that due execution of the formalities of the will cannot be presumed from the attestation clause, if Second Department, December, 1920. [Vol. 194. the testimony proves the contrary. (Lewis v. Lewis, 11 N. Y. 220. See Matter of Turell, 166 N. Y. 330, 338; Matter of Cogan, 184 App. Div. 202; affd., 226 N. Y. 694.) These authorities, I think, require a reversal and a determination that there was not due proof of the execution of this paper as a will. (See Decedent Estate Law, § 21.) I advise, therefore, that the decree of the Surrogate's Court of Richmond county be reversed upon the law and on the facts, and that its findings of fact numbered IV, V, VI and VII be reversed; that the contestant's proposed findings numbered VI, VII, VIII, IX, X and XI be found and allowed, and that a decree refusing probate of the paper propounded be accordingly entered in said Surrogate's Court, with costs of this appeal and of the probate proceedings to the contestant, payable out of the estate. JENKS, P. J., RICH, BLACKMAR and KELLY, JJ., concur. Decree of the Surrogate's Court of Richmond county reversed upon the law and on the facts; its findings of fact numbered IV, V, VI and VII reversed; the contestant's proposed findings numbered VI, VII, VIII, IX, X and XI found and allowed, and a decree refusing probate of the paper propounded is accordingly directed to be entered in said court, with costs of this appeal and of the probate proceedings to the contestant, payable out of the estate. AMERICAN RATTAN AND REED MANUFACTURING COMPANY, INC., Respondent, v. HANDEL-MAATSCHAPPIJ MORAUX & COMPANY, Appellant. (Appeal No. 1.) Second Department, December 10, 1920. The attorney for an attaching creditor has power to release the attachment. Where an attachment has been so withdrawn an appeal based thereon cannot be sustained. APPEAL by the defendant, Handel-Maatschappij Moraux & Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the App. Div.] Second Department, December, 1920. clerk of the county of Kings on the 13th day of May, 1920, denying defendant's motion to vacate a warrant of attachment. On March 30, 1920, an attachment was issued to the sheriff of New York county against defendant, as a foreign corporation. It was based on an unfulfilled award by arbitrators, which had become the subject of a demand on October 18, 1916. An order for publication of the summons followed on April 29, 1920: Defendant, appearing specially, moved to vacate the attachment for the alleged insufficiency of the moving affidavits. On May 13, 1920, this was denied, with ten dollars costs, by the order now under review. But by the appeal record it appears that on July 9, 1920, the original attachment had been returned, with the sheriff's notation "Withdrawn, No property found." Martin Lippman, for the appellant. Arthur H. Haaren, for the respondent. PUTNAM, J.: By virtue of his general power over matters of procedure an attorney can control attachments. Hence the attorneys for the attaching creditor had power to release this attachment. (Moulton v. Bowker, 115 Mass. 36; Marble v. Jamesville Manufacturing Co., 163 id. 171.) Having been so withdrawn, the attachment is not now in existence. Plaintiff, indeed, might take out a new attachment and so use this affidavit a second time (Mojarrieta v. Saenz, 80 N. Y. 547), but this would be under an independent order. Therefore this appeal over an attachment now dissolved has nothing substantial remaining. (Commercial Union Assur. Co., Ltd., v. Smith, 16 N. Y. Supp. 114; Woodruff v. Austin, 16 Misc. Rep. 543.) It is, therefore, dismissed, but without costs. JENKS, P. J., RICH, BLACKMAR and KELLY, JJ., concur. Appeal dismissed, without costs. Second Department, December, 1920. [Vol. 194. GUSTAV A. JURGENSEN, Appellant, v. MARY L. MORRIS and MARY W. LAFRANCE, Respondents. Second Department, December 10, 1920. Landlord and tenant option to purchase covenant in lease to give tenant first necessity that landlord submit specific offer from third person-specific performance where third person to whom property conveyed not made party-judgment for damages where not alleged in complaint nor proven at trial covenant against subletting. A covenant in a lease that the landlord, in case he shall desire to sell the premises before the expiration of the lease, shall give the tenant the "first option to purchase," obligates the landlord, if he wishes to sell to another person during the term, to offer the property to the tenant on the same terms as those offered to the landlord by a third person. A letter from the landlord to the tenant which specified no price for the premises and notified the tenant of no offer by a third person, but which stated in substance that the landlord was desirous of selling and requested the tenant to name his price and terms, was of no force, and the failure of the tenant to reply did not terminate the covenant of the lease. Specific performance could not be decreed, as the third person to whom the landlord conveyed the premises was not made a party to the action. It seems, that damages cannot be assessed in a suit for specific performance of a contract to convey land where the complaint does not allege damages and the plaintiff does not offer proof thereof. In an action by a tenant to compel specific performance of a covenant of a lease to convey the premises, a judgment against the plaintiff cannot be sustained on the ground that he violated a covenant against subletting, where it appears that evidence to show that the defendants acquiesced in the subletting was excluded. APPEAL by the plaintiff, Gustav A. Jurgensen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 7th day of May, 1920, upon the decision of the court rendered after a trial at the Kings County Special Term. Francis X. Carmody, for the appellant. Walter H. Griffin, for the respondents. MILLS, J.: This action was brought to secure the specific performance of a contract of sale, to which the plaintiff claimed to be |