Imágenes de páginas

persons than the grantee entitled grantee, and the property then to the benefits, if any there are went to the remaindermen, disderivable from the performance of charged of any authority over it the act, it takes effect as a power by any person whatsoever. in trust. 3 R. S., 7th Ed., 2188, Judgment of General Term for $$ 74, 95 ; 36 N. Y., 687; 88 id., plaintiff reversed, and judgment 174.

absolute for defendant on stipuThis power is general, as it au lation. thorizes a conveyance

to any Opinion by Ruger, Ch. J. All alienee (8 77), but it is neither im- concur, except Finch, J., not perative nor beneficial since its ex voting. ercise is left altogether to the discretion of the grantee and other

LIFE INSURANCE. FRAUD. persons but herself are to be bene

APPEAL. fited by its execution, § 79, 96, wnile the absolute power of dispo N. Y. COURT OF APPEALS. sition is vested in the donee. The

Hencken et al, applts., v. The express directions given in the

U. S. Life Ins. Co. et al, respts. deed as to the investment of the proceeds and the limitations im Decided Jan. 20, 1885. posed as to the grantee's authority In an action to procure the restoration of to control its ultimate destination

policies and an accounting on the ground show that it was not a power to be of fraud of defendants' officers in procuring executed for her sole benefit, and plaintiffs to exchange said policies for new the creation of a fee in the grantee,

ones containing more onerous conditions,

the court found as facts that there was no by implication, is therefore pre

fraud or misrepresentation, and that plaintcluded. SS 81, 85.

iffs secured advantages by the new policies The power was simply one of at least equal to those surrendered by them, trust, its exercise being intended

and had suffered no damage. Held, That

in the absence of valid exceptions to rulings for the benefit of the owners of

there was no question to review. the ultimate estate as well as for In view of the impossibility of placing a prethat of the life tenant and could cise pecuniary value on the various provisbe exercised or omitted at the ions of the policies and the wide difference mere

existing among experts in relation thereto, discretion of the donee.

the question whether a policy holder will Being a trust to sell lands and in

be damnified by an exchange is peculiarly a vest the proceeds, it was purely a question for the parties interested to de.

termine for themselves. discretionary power, the execution of which could not be delegated to Affirming S. C., 16 W. Dig., 44. another, or restrained or enforced This action was brought to proupon the application of any of the cure the restoration of two policies parties. Lewin on Trusts, 296 ; of insurance upon the life of H., Perry on Trusts, 287, 408 ; 13 payable to his wife or children, for N. Y., 592 ; 17 id., 42. The power $5,000 each, and issued by the de. and the trust connected therewith fendant, the U. S. L. Ins. Co., in terminated upon the death of the I 1859 and 1866 respectively, and for

an accounting by said Ins. Co. as from the provisions of the policies to the assets it might possess and the admitted financial condi. applicable to said policies, on the tion of the company at the time of ground that a surrender of them the surrender, that they were in 1872 was induced and procured damnified by the exchange in by said Ins. Co. and its officers question. through conspiracy, fraud and Held, Untenable; that in view misrepresentation, and plaintiffs of the impossibility of placing a had thereby been induced to sur- precise pecuniary value on the render dividends due them and various provisions of the policies, said policies, and accept in lieu and the wide differences existing thereof a life policy for $10,000 among experts in relation thereto, containing more onerous condi- this was peculiarly a question to tions than the original policies, be left to the judgment of the whereby he suffered great loss and parties interested to determine for damage. The trial court found as themselves. a question of fact, upon evidence Judgment of General Term, sufficient to sustain such finding, affirming judgment dismissing the that neither of the defendants was complaint, affirmed. guilty of fraud, conspiracy or mis Opinion by Ruger, Ch. J. All representation in procuring the concur. surrender of said policies. The court below found, upon evidence NEGLIGENCE. PLEADING. appearing sufficient to support the N. Y. COURT OF APPEALS. finding, that the advantages secured by plaintiffs in the cancellation

Lee, respt., v. The Troy Citizens of their existing indebtedness to Gaslight Co., applt. the company, and the receipt of a

Decided Jan. 20, 1885. new policy, were at least equal to the absence of contributory negligence on those surrendered by them, and plaintiff's part need not be alleged in the

complaint ; that fact is involved in the they therefore suffered no damage.

allegation that the injury was caused by W. I. Butler, for applts.

defendant's negligence. W. H. Ingersoll, for respts. Requests to charge which assume that there Held, That the alleged injury to

is evidence from which the jury may infer

certain facts, when in fact there is no such plaintiff's rights constituting the

evidence, are properly refused. sole basis upon which the claim

In an action for the death of a horse caused for redress is predicated, and that by a gas leak, it appeared that defendant's having been found against plaint workmen had stopped a leak there an hour iffs as a question of fact, there is,

or so before ; that plaintiff closed the

stable, and noticing a smell of gas, examin the absence of valid exceptions

ined the meter. The court refused to to the rulings of the trial court, no charge that if plaintiff had reason to believe question reviewable here.

gas was escaping, knew the danger and left Plaintiffs claimed from the evi

the horse there without providing for the

danger, thinking the escape of gas was not dence of some experts, which was

sufficient to do any damage, he could not controverted, and from inferences recover. Held, No error ; that under the

circumstances negligence was not an in. Held, That the requests were evitable and necessary inference.

properly refused. This action was brought to re Defendant made a similar re cover damages for the death of quest, founded not upon actual plaintiff's horse, caused by the knowledge, but upon circumstanescape of gas from a pipe in plain- ces which it was claimed should tiff's stable, which it was alleged have led plaintiff to believe that had been negligently repaired by the gas was leaking. It appeared defendant's servants. There was

that the gas pipe had been injured sufficient evidence to carry to the by an accident occurring to the exjury the question whether the leak terior pipe; gas had been escaping complained of was due to the neg. at that point all the afternoon preligence of defendant's workmen ceding the death of plaintiffs in making the requisite changes horse ; defendant's workmen had and repairs. It was claimed that been notified of the difficulty, and the complaint was insufficient, be were expected to remedy it. They cause it nowhere alleged the ab- finished at about six o'clock, de sence of contributory negligence claring that their work was done ; on the part of plaintiff.

an hour or two later plaintiff Nelson Davenport, for applt. closed his barn, and he and others R. A. Parmenter, for respt. with him, noticing the smell of

Held, Untenable ; that no such gas, remarked it, and examined separate and direct averment in the meter. The judge was requestthe complaint was necessary. 6ed to charge that “it plaintiff had Lans., 381 ; 53 N. Y., 654. Sub

to believe the gas was stantially, that allegation is always escaping, and knew the danger of involved in the averment that the escaping gas, and left the horse injury set out was occasioned by there without providing for the the defendant's negligence. To danger, thinking the escape of gas prove that, plaintiff must show was not sufficient to do any damthat his own negligence did not age, he cannot recover."

This cause or contribute towards the request was refused. injury. 78 N. Y., 483.

Held, No error; that the propThere was no exception by de-osition contained in the request to fendant to the charge as made. charge could not be alleged as an Several requests to charge as to absolute matter of law because, plaintiff's negligence were refused, under the circumstances, negliand a sufficient exception taken. gence was not an inevitable and Two of these requests assume that necessary inference. 71 N. Y., 30. there was evidence from which the Judgment of General Term, aljury might infer that plaintiff firming judgment for plaintiff, knew that gas was escaping, and affirmed. with that knowledge omitted nat Opinion by Finch, J. All conural and necessary precautions. cur, except Earl, J., dissenting. There was no such evidence.


JURISDICTION. PLEADING. Gardiner in Burkle v. Eckhart, 3

N. Y., 132, at p. 137.

Order affirmed, with costs.

Opinion by Learned, P. J.; John Heenan, applt., v. The N.

Bockes, J., concurs anå cites 90 Y. West Shore & Buffalo RR.

N. Y., 526, 530 and 53 id., 450; CO., respt.

Landon, J., concurs.
Decided Jan., 1885.
Where an objection to the jurisdiction of a

County Court is put upon the ground that,

N.Y. SUPREME COURT. GENERAL by statute, the court has no power to hear the action and where the defect complained

TERM. THIRD DEPT. of does not appear upon the face of the complaint, the objection may properly be

Leonard Y. Gardiner et al., taken by answer; and such answer, though respts., v. Gabriel Schwab et al., setting up other defences, is not a waiver of applts. . the defect.

Decided Jan., 1885. The action was begun in the County Court of Albany county, Where a referee had made his report, although where plaintiff at first succeeded,

judgment has not been entered upon it, he

has no power to make additional findings. but the County Judge set aside

So held, where the referee had found the the verdict. The articles of asso facts in question but, by inadvertence, had ciation of defendant located its omitted them from his report. The facts principal place of business in the

were material and necessary to support the

conclusions of law, county of New York, The summons was served in that county. In this case the referee made a The answer set up these facts and report in favor of plaintiff. By averred that the County Court inadvertence he omitted from his had no jurisdiction under Code, SS report certain facts which he 340 and 341. It then set up other found (and about which there was defences. Upon a motion for a really no contest), and which it is new trial the County Judge held claimed are necessary to support with defendant.

the conclusions of law. No judyB. C. Heyward, for applt. ment had been entered. This is P. B. McLennan, for respt. an appeal from an order remitting

Held, That the County Court the report to the referee with dihad no jurisdiction. The appel rections that he add the omitted lant urges that the appearance of findings. defendant is a waiver of the ob Theodore H. Swift, for applt. jection to the jurisdiction. We W. L. Van Denbergh, for respt. think not. The question is not Held, That the order was imone simply of jurisdiction of the proper. The referee had made person of defendant. It concerns his report, had delivered it to the also the limitation of the power of successful party and that party the Court. See remarks of Judge had served a copy on the defeated

party. We think he cannot now Opinion by Learned,

Learned, P. J.; make further findings even though Bockes, J., concurs; Landon, J. the omission be accidental. Rule not acting. 32; Code, $ 1023; 84 N. Y., 284 ; 2 N. Y. Civ. Pro., 185; 24 Hun,


Order reversed, with costs, and N. Y. SUPREME COURT. GENERAL motion denied, with costs.

Opinion by Learned, P. J.;
Bockes and Landon, JJ., concur.

John W. Mehl v. John H.
Hilliker et al, exrs. et al.

Decided Dec., 1884.

Executors who are directed by the will of N: Y. SUPREME COURT. GENERAL

their testator to sell all his real and personal TERM. THIRD DEPT.

estate as soon as convenient after his death,

“and when in their judgment they shall Charles Furman et al., respts. consider it most advantageous,” are not v. Felix Cunningham, applt.

independent of a Court of Equity.

Where the testator gave to his wife “$9,100 Decided Jan., 1885.

absolutely, in lieu of dower,” and specific

sums were given to other persons, a subseUnder Ch. 237, Laws of 1878, prescribing a

quent clause that if a sufficient sum was penalty for bringing skimmed milk to a

not realized from a sale of his real and per. cheese factory, to be sued for by the per

sonal estate to pay all of the said sums, sons defrauded, the plaintiffs are entitled

then my said legatees to be paid their shares to full costs although the penalty recovered in the same ratio as herein before bequeathbe less than fifty dollars.

ed, and should there be a larger sum

realized than the total amount of legacies, Under the above statute plain

then the surplus to be applied to each share tiffs, who were customers of the

in the same proportion; Ileld, that it was not cheese factory, recovered a penalty intended to abate the legacy of the wife, in of $40, and were given costs.

case of land selling for less than a given From the order defendant appeals.

sunı, but such legacy was an absolute gift

to free the land and estate, if accepted. Burke & Kilburn, for applt. Gilbert & Kellas, for respts. This was an action to construe Held, That plaintiffs were en

the will of Adam Mehl, who died titled to costs. The statute ex in Jan., 1880. Letters testamentpressly says “with costs of suit."

“ with costs of suit." ary were issued to the executors Section 3250 of the Code states April, 1880. The testator had that this title (title 1 of chapter 2i) about $80,000 in real and personal does not affect any provisions of estate. The personal estate conthis act or of any other statute sisted in part of a milk route, cows whereby the award of costs is spe- and wagons connected with the cially regulated in a particular business. The executors were case. “ The award of costs is spe- directed by the will to sell testator's cially regulated” by the law of real and personal estate so soon as 1878.

convenient after his death, and Order affirmed, with costs. when in their judgment it would

« AnteriorContinuar »