SURROGATE'S COURT.

1. Where a legatee and executrix named in a will, by a power of attorney duly executed, appointed another her agent and attorney, in her name and place, to present the will for probate, to have the same duly proved, and to ask for and receive letters of administration:

Held, that the attorney so appointed was "a person interested in the estate" within the meaning of the provision of the act of 1837, "concerning the proof of wills," | which prescribes who may have a will proved (sec. 4, chap. 460, Laws of 1837); and so, that he had a right to ask by petition for the issue of the letters of administration to which he was entitled; and that the surrogate had jurisdiction to act upon such petition. (Russell agt. Hartt, 87 N. Y., 16.)

2. Where, after proceedings for the probate of a will, a minor becomes interested by reason of the death of one of the parties, and the surrogate "ascertains" that fact (sec. 6), it is his right and duty to bring in such minor, and to appoint for him a special guardian in case he has no general guardian. (Id.)

3. The affidavit of an attorney or counsel in the case is quite sufficient to give the information and authorize the surrogate to act. (Id.)

4. Where a testator, not an inhabitant of this state, dies out of it leaving assets, the surrogate of the county where the assets are has jurisdiction to take proof of the will, and may act although the original will is in the possession of a court or tribunal of another country, and cannot be produced before him. (Id.)

5. Where, in proceedings for the probate of such a will, a commission was issued by a surrogate to

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take the testimony of witnesses in another country, and the original will was produced before said commissioners:

Held, that the commission made the commissioners officers of the court for the purposes for which it was issued; that in the execution of the authority conferred they stood in the place of and represented the court, and the exhibition of the will before them was substantially a production thereof before the court. (Id.)

It seems, that the surrogate had the right to admit the will to probate upon production of the exemplification of the foreign record. (Id.)

7. Under the Code of Civil Procedure (sec. 1337), where the decree of a surrogate in proceedings for the probate of a will is affirmed by the general term of the supreme court, this court has no jurisdiction, upon appeal, to review the questions of fact which depend upon conflicting evidence, but is confined exclusively to questions of law. (In re Ross, 87 N. Y., 514.)

opinion rational or irrational. Their examination, however, must be limited to their conclusions from the facts to which they have testifled; they may not express their opinions on the general question whether the mind of the testator was sound or unsound. (Id.)

10. Where, however, there is an infraction of this rule, the decree will not be reversed "unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby" (Code, sec. 2545). (Id.)

11. The decision of a surrogate adjudging the amount to be paid over by an administrator who has been removed, if valid as against him is valid as against the sureties upon his bond; when their principal is concluded they, in the absence of fraud or collusion, are concluded also. (Harrison agt. Clark, 87 N. Y., 572.)

12. Such a decree may properly be made on the application of an administrator appointed in place of one removed. (Id.)

13. The surrogate of the county of New York has authority to revoke letters of administration when the administrator has become incompetent to act by reason of the causes specified in the statute (sec. 1, chap. 359, Laws of 1870; sec. 34, chap. 460, Laws of 1837); and upon such revocation he may grant new letters to other persons (2 R. S., 78, sec. 45; chap. 466, Laws of 1863). (Id.)

14. Although such jurisdiction is defined and limited by statute, if it has been exercised by said surrogate after jurisdiction of the person of the administrator sought to be removed has been acquired by proper service of citation, where the facts of the particular case do not bring it within the statute, or without pursuing the

particular mode pointed out, it is notwithstanding a" lawful order" within the meaning of the act of 1870, relating to said surrogate (sec. 1, chap. 359, Laws of 1870), and the only remedy is by appeal, or by motion before the surrogate; his order or decree cannot be attacked for want of jurisdiction, in an action by the new administrator upon the bond of his predecessor. (Id.)

15. Under the Code of Civil Procedure (sec. 1337), the decision of a surrogate upon a question of fact arising on conflicting evidence upon the final accounting of an executor is not reviewable here. (Davis agt. Clark, 87 N. Y., 623.)

16. The provision of said Code (sec. 2586) declaring that: "Where an appeal is taken upon the facts the appellate court has the same power to decide the questions of fact which the surrogate had." &c., had reference only to appeals from surrogate's decrees or orders to the supreme court. (Id.)

TRADE-MARK.

1. Where the plaintiff had used the words" Alderney Manufacturing Company," as a trade-mark in relation to the oleomargarine manufactured by him, and had originated and first adopted the word Alderney" in that connection, and it formed an integral part of the label stamped upon all the goods manufactured by him, and defendants, by being incorporated under a like name, claim the right to deprive him of the exclusive use of that word in the new connection in which he had placed it:

Held, that an injunction lies restraining defendant from the use in any way of the word "Alderney in connection with the manufacture and sale of oleomargarine. (Lauferty agt. Wheeler et al., ante, 488.)

2. The use of the words "Alderney Manufacturing Company" is not a violation of the statute of 1833, forbidding the use of the words " & Co., or and company," unless representing an actual partner. (Id.)

TRIAL.

1. Where an answer admits all the allegations in the complaint necessary to be established to make out the cause of action, and sets up an affirmative defense, defendant has the affirmative of the issue, and the right to open and close the case. The fact that the complaint alleges facts not essential for plaintiff to aver or prove, and that the same are denied by the answer, does not deprive defendant of such right. (Murray agt. N. Y. L. Ins. Co., 85 N. Y., 236.)

TRIAL FEE.

1. Where a cause is reached on the day calendar and moved for trial neither party can withdraw from the cause without being liable for the trial fee. But if the cause is not reached and moved on, no trial fee is recoverable. (Ehlers agt. Willis, ante, 341.)

TRUSTS AND TRUST FUNDS.

1. The insurance company, defendant, in October, 1877, transferred to the trust company, defendant, two mortgages as security to the holders of policies in the insurance company, the latter company to collect and retain for its own use the interest upon the mortgages. The trust company was, at the request of the insurance company, to foreclose the mortgages in its own name, on being indemnified for costs and expenses, and to hold the proceeds for the protection of the policyholders. In September, 1878, the

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insurance company made an assignment for the benefit of creditors, and at the request of the assignee the mortgages were delivered to plaintiffs for foreclosure, as attorneys of the trust company, the plaintiffs giving a receipt stating that the proceeds, after deducting the interest which had accrued upon the securities and the costs and expenses, were to be deposited with the trust company as security for the holders of the policies. There was $13,800 of interest due upon one of the mortgages at the time of the foreclosure, and $1,200 upon the other, while the foreclosure sale produced but $5,000 upon one mortgage and $1,000 upon the other. In this action to determine whether this $6,000, less expenses, should be paid to the assignee or to the trust company, and whether the plaintiffs have a lien for services to the assignee:

Held, that, as against the trust company, whose attorneys they are, the plaintiffs are not entitled to hold possession of the fund, after receiving their taxable costs and allowances; and also that, as the agreement under which the trust company received the mortgages created a trust, by which the policyholders of the insurance company were to be secured, the securities and their proceeds became irrevocably impressed with that trust, and the trust company is, therefore, entitled to such proceeds as against the assignee of the insurance company, and this notwithstanding the provision in regard to the receipt and collection of interest by the insurance · company. (Fullerton agt. National Burglar and Thief Ins. Co., ante, 5.)

The decedent, who was a resident of New Jersey and died there, about a year before his death executed an instrument giving his real estate, situated in New York and New Jersey, and all his personal property, to defendants, in trust,

to pay annually certain sums to his children, with other provisions. The grant was not to take effect until the death of the grantor, and was subject to revocation, modification and alteration at his pleasure. The defendants, under this instrument, took possession of certain personal property of decendent in this state. Plaintiff, as public administrator (in default of other letters of administration), brings this action to recover such property, setting up the instrument and asserting its invalidity, and alleging that decedent retained possession of the property until his death, and did not assign or deliver the same to defendants:

Held (overruling demurrer to complaint), that the instrument should be tested by the law of New Jersey, where it was executed, and where the grantor lived and died; and such instrument being invalid under the common law, and as it cannot be assumed that the statutes of New Jersey in relation to trusts are identical with those of this state, the facts set forth in the complaint establish a cause of action. (Sullivan agt. Babcock et al., ante, 120.)

3. The testator gave a certain sum to his executors in trust to invest and apply the income to the use of his son Daniel during his life. After his death one-half of said sum was directed to be divided equally among such of the testator's children as might then be alive, and "the heirs or legal representatives of any children or child now or then deceased, except the heirs or representatives of said Daniel, share and share alike " In case Daniel's wife should survive him the other half was to be held for her benefit, and upon her death or remarriage it should be equally divided among such of the testator's children as might then be alive (except the heirs or representatives of his son Daniel), share and share alike, per stirpes and not per capita:

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Held, that the trust fund in question, upon the death of Daniel, vested in testator's then living children, and the heirs or issue of his deceased children, per stirpes and not per capita. (Coster agt. Butler, ante, 311.)

The plaintiff, a general creditor of the city of Elizabeth, New Jersey, sought to attach certain moneys belonging to the city which the comptroller had deposited with defendant to meet the interest due upon the bonds of the city on the following day, which deposit the defendant had accepted for that specific purpose:

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Held, that the amounted to a special deposit for the benefit of the bondholders; that the defendant accepted it upon that trust, and that therefore the fund could not be attached at the suit of a general creditor. (Hurd agt. Farmers' Loan and Trust Company, ante, 314.)

UNDERTAKING.

1. Where his sureties in an undertaking, instead of signing at the foot of the undertaking, each signed his own affidavit of justification, which was on the same page with the undertaking, both sureties appearing before a notary public, who certified that they knew them "to be the persons described in and who executed the above undertaking, and severally acknowledged that they executed the same," the execution of the undertaking will be held valid. (Lampkin agt. Douglass, ante, 47.)

2. A party appealing cannot be one of the two sureties" required by the Code of Civil Procedure. (Morss agt. Hasbrouck, ante, 84.)

3. An undertaking on appeal is

fatally defective which is executed by only two persons, one of whom is the plaintiff and appellant. (Id.)

4. Where the recital in the commencement of an undertaking on appeal to the court of appeals was: "Whereas, on a certain day in the supreme court the above named respondents recovered a judgment against the above named appellant for $192.11, on the appeal from the judgment and the order granting an extra allowance for costs, &c.," and the undertaking was that the persons named "undertake that the said appellant will pay all costs and damages which may be awarded against him on said appeal, not exceeding $500; and do also undertake that, if the said judgment so appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the said appellant will pay the amount directed to be paid by the said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against said appellant on the saidappeal:"

Held, that security has only been given for the payment of the judg ment recovered for the costs on the affirmance, and not for the original judgment which was affirmed at the general term.

Held, further, that, in the language of section 1332 of the Code of Civil Procedure, the undertaking is not "the same, as if the judgment or order, from which the appeal is taken, was to the same effect as the judgment or order affirmed," and is, therefore, defective. (Id.)

5. An undertaking given upon an appeal to the court of appeals, from an order and judgment of the general term, affirming the judgment below, must, in express words, provide for the payment of the original judgment if the judgment of the general term, affirming such judgment, be itself affirmed by the judgment or order of the court of last resort (See 8. C., ante, 84). (Morss agt. Hasbrouck, ante, 201.)

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Where an order of general term granting a new trial is affirmed on appeal to this court and judgment absolute directed against the appellant, the sureties upon the undertaking given to perfect the appeal as prescribed by the Codes (Code of Civil Procedure, sec. 1326; Code of Procedure, sec. 334), are only liable for costs of the appeal to this court, not for all the costs in the action. (Burdett agt. Love 85 N. Y., 241.)

An undertaking for costs is nec essary on appeal to this court, in order to make the appeal effectual for any purpose (Code of Civil Procedure, sec. 1326), and the court has no power to dispense with it; its powers is limited to dispensing with the security required to stay execution (Sec. 1312). (Architectural Iron Works agt. City of Brooklyn, 85 N. Y., 652.)

It is no defense to an action on an undertaking given to stay execution under the Code of Procedure (sec. 335), by executors on appeal from judgment against them as such, that sufficient assets did not come to the hands of the executors to pay the judgment. (Yates agt. Burch, 87 N. Y., 499.)

9. Under the provision of said Code (sec. 348) requiring ten days' notice to "the adverse party of the entry of the order or judg ment affirming the judgment appealed from," before bringing suit upon an undertaking given to stay proceedings on appeal to the general term, the fact that after entry of judgment and service of notice thereof, the sum of costs was reduced upon retaxation, did not require the service of a new notice before bringing suit. (Id.)

10. It seems, that under said provision a notice of the entry of the order or judgment of affirmance, without stating the amount of costs awarded, would be sufficient. (Id.)