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clause of the will William B. | That an examination of the resid

Welsh was given one-third of the residuary estate, to be held in trust for him until he reached the age of 25 years, and to be then paid over to him. Immediately after the death of the testator William B. Welsh became engaged in the business with his brother Charles, but before he attained the age of 25 years he was seized with an illness which permanently incapacitated him from continuing to take part in conducting said business. He claimed that he was excused for that reason from the obligation of performing the conditions imposed by the will, and after attaining the age of 25 brought this action to establish his right to a half interest in the business.

uary clause of the will shows that the testator contemplated and pro vided for the contingency of failure to perform the condition by in that case bequeathing William a less interest in his estate, and this provision illustrates his intention to permit nothing but the actual, personal, and continued engagement of William in the business until the age of 25, to operate as a satisfaction of the condition of the first trust.

Judgment affirmed.

Opinion by Davis, P. J.; Daniels, J.. concurred; Brady, J.. dissented.

ATTORNEY AND CLIENT.
PRACTICE.

James O. Clark and R. Wayne N. Y. SUPREME COURT. GENERAL

Parker, for applt.

D. M. Helm, John Bryan, and Marsh, Wilson & Wallis, for

respts.

Held, That by the will of the testator a conditional trust in a one-half interest in the business was created in favor of William, the operation and continuance of which, however, should depend upon the fact of his immediate and continued engagement in such business, and should cease whenever such engagement terminated from any cause, even though it might be death, and that if a sickness resulting in death would not excuse performance, or be equivalent to it, it is difficult to see how one which caused a permanent disability to perform, can furnish such an excuse or equivalent.

TERM. FIRST DEPT.

Theodore M. Amsdell and ano.,

respts., v. Michael Martin.

Decided Oct., 1884.

When a dispute arises between an attorney and client concerning the amount of the former's charges for services performed in an action, the court, upon motion therein, may refer it to a referee to hear and determine the subject in controversy and report to the court, but such order cannot provide that the attorney shall bear the expenses of the reference and the costs of the motion, unless he establishes a lien to a certain amount upon the judgment recovered in the action, although the attorney may not appear upon such a reference he still has the right to insist from the evidence taken and filed that the report was not authorized by it, and the regular mode for doing that is by filing exceptions within eight days after the service of notice of filing the report and the evidence, and if no oppor tunity to file such exceptions is given be fore an application for the confirmation of

the report, an order confirming it is irregu- termine the controversy. lar and will be reversed.

Appeal from an order of refer→ ence and from an order confirming the report of the referee.

A dispute existed between the appellant and the plaintiffs who were his clients, concerning the amount of the former's charges for services performed in this action, and to settle such dispute the court, upon motion of the plaintiffs, referred it to a referee to hear and determine the subject in controversy between the parties and report to the court. The attorney appealed from such order of reference upon the ground, among others, that the court had no power to order the referee to hear and determine the controversy but only to report the evidence.

587, 593.

9 Hun,

By the concluding part of the order it was directed that the attorney should bear the expenses of the reference and pay $10 costs of the motion in case he failed to establish a lien upon the judgment to the extent of at least $244.77.

Held, That in this direction the order proceeded too far, for the right to costs and disbursements could not intelligently be determined until the proceeding had terminated before the referee and his report should be brought up for consideration.

Order modified by excluding this direction from it, and as modified affirmed, without costs.

The reference proceeded before the referee under the authority of the order, but the attorney did

George F. Eschbach, applt. in not appear and the referee's report was adverse to his claim. This report was confirmed on one

person.

Lindsay and Flammer, for day's notice given by the service

respts.

Held, That under the preceding practice a dispute of this character between a solicitor and his client would in equity have been referred to a master to hear the proofs and report upon them, and that practice has been continued by the Code, 827, and by § 1015 it has been further provided that a reference may be made upon a motion to a referee "to determine and report upon a question of fact arising in any stage of the action." That this was a motion of that description and the court by the language of this section was empowered to direct the referee to de

of an order to show cause, but neither the report itself, nor the evidence taken by the referee was previously filed and the attorney in opposing the motion objected to the confirmation of the report upon that ground, claiming that under Rule 30 of the general rules of practice he was entitled to notice of filing of the report and to eight days thereafter in which to file exceptions thereto. The plaintiffs contended that he was not entitled to such notice, &c., for the reason that he had failed to appear before the referee.

Held, That Rule 30, supra, was applicable to a proceeding of this

description, 9 Hun, 587; and that the party although he may not appear before the referee still has the right to insist from the evidence taken and filed that the report was not authorized by it, and the regular mode for doing that is by filing exceptions after service of notice of the filing of the report and evidence. That the attorney had no opportunity to file such exceptions, before the application for the confirmation of the report was made, and that in the proceedings taken for that purpose the plaintiffs were irregular and the order unauthorized.

Order reversed.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurred.

PLEADING.

REPLY.

N. Y. SUPREME COURT. GENERAL
TERM. FIRST DEPT.

Mary Maud Watson, by guard ian, &c., applt., v. John D. Phyfe and ano., respt.

ed whether the plaintiff intends to dery such new matter or expected to avoid its effect in some other way, and that without a reply the defendant might very well be subjected to surprise entitling him to avoid a determination of the action which the facts of the case would require to be otherwise disposed of, the plaintiff will be ordered to reply to such new matter.

Appeal from an order denying motion to strike out parts of the defendant's answer as irrelevant and redundant and from an order requiring the plaintiff to reply to new matter set up in the answer by way of affirmative defense.

This action was brought to recover the possession of certain real estate. The title of the plaintiff was derived from a deceased owner as one of his heirs at law. The answer, as new matter constituting an affirmative defense, set forth and alleged that said deceased owner in his life time had executed a will and codicil by which he devised and disposed of the property in controversy in such a manner as to deprive plaintiff of any title to it. The answer also stated the additional facts that the said will and codicil had been presented to the proper surrogate for probate and had been admitted to probate by him, with a detailed statement of the proceeding before him for that purpose, and annexed to it as exhibits were copies of the said will and codicil and the papers the will and papers used in the probate The plaintiff moved to strike out used in the probate proceedings.

Decided Oct. 31, 1884.

In an action to recover possession of real estate where the title relied upon by the plaintiff is derived from a deceased owner as heir at law, and the defense set up is that such owner made a will devising and disposing of the property in question, a further allegation that the said will had been presented to the Surrogate for probate and admitted to probate by him with a detailed statement of the proceedings before him for that purpose, with copies of

proceedings annexed as exhibits, will not be stricken out on motion as irrelevant and redundant.

When an answer sets up new matter by way of affirmative defense of such a character that the intelligent trial of the action requires that the defendant should be inform

these statements as to the proceedings for probate and the defendant moved that the plaintiff be required to reply to the new matter set up in the answer. Both motions

were decided against the plaintiff, and from the orders entered thereon she appealed.

George M. Curtis, for applt. William H. Arnoux, for respt. Held, That while the answer was much more detailed than it was necessary it should be, still it contained only the detailed averment of facts which would be admissible as proof upon the trial by way of answer to the plaintiff's alleged title to the property, and as such their special detail could be of no possible injury to the plaintiff in the proceedings required to be taken by her to present her case at the trial, and accordingly they were not irrelevant or redundant, and the order denying her motion

to strike them out was correct.

That the intelligent trial of the action required that the defendants should be informed whether the plaintiff denied the execution of the will and codicil or the validity of the proceedings by which probate of them was accorded or expected to avoid their effect in some other manner. That without a reply the defendants would be left to conjecture upon what possible ground the plaintiff might expect to succeed, and might very well be subjected to surprise entitling them to avoid a determination of the action which the facts of the case would require to be otherwise disposed of. That the case was a proper one for the direction of a reply and the order should be affirmed.

Order affirmed.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

APPEAL.

'N. Y. COURT OF APPEALS.

Crosby, respt., V. Stephan, impl'd, applt.

Decided Jan. 20, 1885.

An order of General Term, reversing an order denying motion to punish a contempt of court, and remitting the case for further proceedings, is not a final order, and is not appealable to the Court of Appeals. See S. C., 19 W. Dig., 172.

This was an appeal from an order of General Term, reversing an order of a county judge, made in a special proceeding instituted to punish the appellant for an alleged contempt in violating an injunction order issued by him in supplementary proceedings, and denied the relief asked for by the motion to punish for contempt. The General Term reversed this order, with ten dollars costs and printing disbursements, and remitted the matters involved in the motion to the county judge to proceed against the defendant,

A. T. Clearwater, for applt.
Howard Chipp, Jr., for respt.

Held, That the determination of the. General Term was not final, and is therefore not only unappealable to this court upon any question affecting the merits, but the Code expressly denies jurisdiction to this court to review the subject matter of the order. Code, § 190, sub. 3; 81 N. Y., 305.

The matter of costs is, in most cases, and especially in those relating to motions and orders, a mere incident of the controversy, and in such a case it is improper

to make the incidental attendant of the subject matter a pretext for exercising a jurisdiction which the legislature has refused to give when legislating directly upon this subject.

When the question of costs is matter of strict right, or the principal object of the controversy an appeal, if properly taken, from such part of the order as awards costs, may be reviewed in this court. 94 N. Y., 293. In order In order to entitle a party to such review, the notice of appeal should state that it is specifically taken from such part of the order. Code, § 1300.

Questions of costs may be reviewed in this court when they arise in connection with other questions in the case properly be

fore us.

This was an appeal from an order of General Term, reversing an order of Special Term, denying a motion to set aside an execution and vacate the sale of certain real estate under it, on the ground that the execution was void. It ap peared that an attachment had been issued and levied by the sheriff against the property of defendant, who, it was proved, was a resident of this State, and had departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or kept himself concealed therein with like. intent. The summons was served by publication. The execution described the judgment and commanded the sheriff to collect the judgment out of the attached personal property of the judgment debtor, and if that was insufficient,

Bergen v. Carman, 79 N. Y., out of his attached real property.

146, limited.

Appeal dismissed.

Opinion by Ruger, Ch. J. All

concur.

EXECUTION.

N. Y. COURT OF APPEALS. Place, respt., v. Riley, applt. Decided Jan. 20, 1885.

An attachment was granted against defendant as a resident who had departed from the

State with intent to defraud creditors. The execution directed its collection out of the attached personal property, and if that was insufficient, then out of the attached real estate. Held, that the execution was not in conformity with Subd. 2 of § 1370, and was void; that no title could be acquired thereunder even by a bona fide purchaser, and that the fact that the debtor had no other personal property out of which the execution could be collected was immaterial.

The attachment recited the grounds upon which it was issued.

Josiah T. Mareau, for applt. George J. Billings, for respt. Held, That the execution being one under Subd. 2 of § 1370 of the Code, by which the execution must go first against the attached personal property; second, against the other personal property of the judgment debtor; and lastly, against the attached real property was void.

Under a void process, no title can be acquired, and the position for a bona fide purchaser under a void process is no better as against the real owner of the property than that of one who purchased with full knowledge of its invalidity. 2 Hill, 566.

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