By Chap. 172, Laws of 1862, section 7 above is amended by leaving out "except her husband," but the object of this amendment was to remove all objection to the maintenance of an action by a third party claiming the property by reason of some contract or transaction with the husband, and which he may have endeavored to the grantor for support and maintenance. 32 N. Y., 423; 25 id., 328. New trial granted. Opinion by Haight, J.; Childs, J., concurs; Angle, J., dubitatur. TOWNS. NEGLIGENCE. transfer to the wife in fraud of the N. Y. SUPREME COURT. GENERAL rights of others, etc. Chapter 472, Laws 1880, authorizes husband and wife to make partition between each other, which act would be unnecessary if they could previously deed to each other. It is claimed that the deed is good in equity, but we are of the opinion that the facts disclosed by the case are not such as to call for the interposition of a court of equity. The case in 44 N. Y., 27, is the most favorable decision to plaintiff's claim which our attention has been called. to The conclusions reached by Hunt, Com., have been questioned and criticised upon the ground that the authorities relied upon did not sustain his position. See 13 Alb. Law J., 110. But conceding the rule as he states it, the wife is not here asking to have the deed to her upon a nominal consideration established by a court of equity, but her illegitimate son, a stranger to Abil Easterbrook and his daughter; and if the court will not interfere as between persons standing on the same meritorious consideration, as between wife and child, it will not in favor of a stranger who has no claim upon TERM. THIRD DEPT. Lucius Lawson, respt., v. The Town of Woodstock, applt. Decided Nov., 1884. The duties and liabilities of highway commissioners fall far short of those of the authorities of a municipality in respect to its streets. No negligence can be imputed to them for not repairing a bridge unless they knew, or ought to have known it needed repairs, and they have or might ob tain the means to do so. Under Chap. 700, Laws of 1881, the test of a town's liability is the negligence of its highway commissioners. They are the sole judges of the proper width and plan of a bridge, and their determination cannot be reviewed collaterally. Where plaintiff drove upon a bridge with a heavy load, wider than the bridge, thereby pushing out braces necessary to its support, and the bridge fell, Held, That he was guilty of negligence, and could not recover for damages sustained by such fall. The action was to recover damages for the breaking of a highway bridge in the defendant town. The bridge is called a truss or gallows bridge, and was constructed upon the principle of the arch. On either side of it were braces, and these an expert testified were of great importance to its strength. It was about 12 feet wide and 50 feet long. Plaintiff drove on the bridge with a stone from 11 to 12 A. Schoonmaker, for applt. Held, That defendant was entitled to the charge requested; otherwise the jury might have found that although plaintiff knocked out the braces the bridge ought still to have borne the load. feet in width, and about 15 feet | question of negligence." Plainlong. It was 6 to 8 inches thick, tiff recovered. and was drawn by 5 horses. It was the heaviest stone ever drawn over the bridge, and the total weight drawn on the bridge was 12 tons. Witnesses for defendant testified that the strain in such a construction was not much upon the string pieces, but on the braces and upon the centre frame work, and that the strain was distributed over the bridge. The stone was bound on to the wagon with ox chains and poles. As loaded, the stone was, according to all the evidence, just about the width of the bridge. Some witnesses thought it an inch or two narrower and some an inch or two wider than the bridge. Defendant claimed that plaintiff drove recklessly on the bridge (when he could hardly have gotten over it by exercising the greatest care); that the stone struck the brace on one side, knocked it out, and then rolled towards the other side knocking the brace there out; and that thereupon the bridge fell. There was also testimony that the stone was not loaded straight on the wagon, but "skewing," and that the stone, chains and poles were as much as 12 feet 11 inches across. Defendant asked the court to charge that if the jury believe from the evidence that the brace was knocked out of the bridge by the stone, and the stone upon the wagon occupied more space than the opening in the bridge, plaintiff could not recover. The Court said to this: "The jury may consider all these circumstances upon the The action was against the town. But the town was under no corporate liability to make or maintain this bridge. 93 N. Y., 397. The obligation is on the commissioners of highways, Laws of 1881, Ch. 700, and their negligence is the test of the town's liability; and the obligation of the commissioners is only a qualified one. The width and plan upon which a bridge is built is in their discretion and cannot be reviewed here. If the bridge was of proper width, and the load was wider than the bridge, then the load was of improper width, and in attempting to drive it over plaintiff was guilty of negligence. We also think defendant was entitled to the charge requested that if the brace of the bridge was knocked out by the stone striking it plaintiff could not recover. For if the knocking out was only the purest accident, and from it the bridge fell, certainly no negligence can be imputed to the commissioners. Judgment reversed. Opinion by Landon, J.; Bockes, J., concurs; Learned, P. J., dissents. EVIDENCE. N. Y. SUPREME COURT. GENERAL FOURTH DEPT. Ebenezer Williams, applt., v. Geo. L. Davis, exr., respt. Decided Oct. 1884. M. Ballard, for respt. Held, No error. Where the truth was in respect to what took place at the interview was a ques tion of fact, and we cannot assume that plaintiff's version is correct for the purpose of overturning the ruling made by the referee. In an action against an executor it appeared That it was competent to produce that the parties had had an interview. Defendant testified that deceased's account book was present and referred to at the interview. Plaintiff denied that it was shown to him. The book was admitted in evidence, Held, No error. A plaintiff is incompetent under § 829 of the Code to testify that an account set up by an executor as a counterclaim has been paid. Appeal from judgment entered upon the report of a referee. Action upon a promissory note. Defense, counterclaim for services of deceased rendered for plaintiff, and for a balance on a mutual account between deceased and plaintiff. It appeared that defendant had had an interview with plaintiff in relation to the account. Defendant produced an account book, and testified that it purported to be the account book of deceased, and that it came to his possession as executor; that it was present at the interview, and referred to in the conversation between plaintiff and defendant. Plaintiff testified that the account book may have been present at the interview, but that it was not shown to him by defendant, and that he did not examine it. before the referee and in evidence the account book of deceased after the testimony of the executor had been given to the effect that the account in the account book had been examined by plaintiff and himself in the interview already referred to. That there was sufficient evidence identifying the account book which was produced as that of deceased, and that under the circumstances it was properly received in connection with the testimony of the executor. Plaintiff testified in relation to the interview with defendant, and in the course of his testimony was asked, in relation to the account, the following question: "Was it true that it had all been paid?" This was objected to on the ground that it called for a conversation or transaction with deceased. tained. The objection was sus Held, No error. How could plaintiff testify that the account had been paid without stating a transaction or communication had with deceased? Code Civ. Pro., § 829. If plaintiff was able to The referee admitted the account give testimony which was not book in evidence. within the prohibition of the sec Chas. D. Wright and J. Lan- tion, he should have called the sing, for applt. attention of the referee to it. Pre pounded would have led to a violation of that section. 17 Hun, 150. sumptively the inquiry pro- | judgment entered upon the report of the referee. 81 N. Y., 379. The referee had power to allow the amendment. 87 N. Y., 322. Judgment affirmed. It was claimed that defendant failed to take the counterclaim out of the statute of limitations by his proofs. Opinion by Hardin, P. J.; Follett and Merwin, JJ., concur. WILLS. EXECUTORS' ACCOUNTS. Held, Untenable. The account commenced July 7, 1872, and consisted of several items, the last of which, on the debit side, N. Y. SUPREME COURT. GENERAL was apparently Oct. 5, 1872. the credit side the items commenced in 1872 and extended down to March 11, 1875. The tes On tator died Jan. 26, 1879. The ad. ditional year allowed by § 402 of the Code, within which an action might be commenced, would not expire until Jan. 26, 1880. This action was commenced June 2, 1880, which was less than six years from the time of the last item in the account of deceased. The items in the account of deceased were such as to bring the account within the provisions of the Code in respect to "mutual, open and mutual, open and current accounts, where there had been reciprocal demands between the parties." In such cases the cause of action is deemed to have accrued from the time of the last item proved in the account on either side. Code Civ. Pro., § 386; 79 N. Y., 1; 60 id., 106; 93 id., 487; 9 Hun, 6. TERM. FIRST DEPT. Emma D. Van Vleck et al., executrices, applts., v. Helen D. Lounsbery et al., respts. Decided Jan. 9, 1885. When a will directs that the executors named therein shall invest the personal estate and shall manage and take care of the real estate and keep the same in proper repair and pay all lawful taxes and assessments on said personal and real estate, and out of the net income of said real and personal estate shall make certain quarterly payments to specified legatees, an assessment for constructing a road charged upon real estate is properly paid by the executors out of the income of the estate. When the executors, under such a will, have paid over to the persons entitled to the income of the estate the interest upon a mortgage owned by the testator up to the time of the foreclosure of such mortgage by them, and buy in the property at the sale under such foreclosure, and pay over the income derived therefrom to the persons entitled to the same, until the sale of such property by them at an advance over the purchase price, the amount of such advance is a part of the principal and not of the income of said estate. Appeal from portions of the decree of the Surrogate of N. Y. Co. settling the accounts of the appellants as executrices of one D., de Also held, That there was no error in holding the amendment of the bill of particulars was valid which was made pursuant to the order of the referee on a former trial. That order was not reversed | ceased. by the General Term when reversing By the will of the testator the appellants were directed to invest the personal estate and to manage and take care of the real estate and keep the same in proper repair and pay all lawful taxes and assessments on said personal and real estate, and out of the net income of said real and personal estate to make certain quarterly payments to specified legatees. The appellants paid an assessment upon the real estate for constructing a road, and charged the interest on such assessment on the income of the estate and the assessment itself upon the principal. By the decree appealed from the whole sum was charged upon the income. David Thurston, for applts. Geo. C. Holt and Thomas Harland, for respt. Held, No error. That the will expressed the intention of the testator that the taxes and assessments should be paid out of the income of his property before any division of it should take place, for he limited the amounts to be divided and distributed to the net income, which would be the balance remaining after making the payments previously directed, and they in express language included taxes and assessments on his real and personal estate. A mortgage owned by the testator was foreclosed by the appellants, and the property covered by it bought in by them at the foreclosure sale. They subsequently sold the property at an advance of $1,300 over the purchase price. While they held the mortgage the interest upon it was paid over to the persons entitled to the income of the estate, and after the purchase of the property the income derived therefrom was paid over to said persons. By the decree appealed from this excess of $1,300 was made part of the principal of the estate, but it was claimed by the appellants that it should have been applied and credited as so much income. Held, That the persons entitled to the income of the estate had enjoyed all the benefit and advantage which they could legally claim from the existence of the mortgage by having received the interest thereon and the income of the property. That the difference in controversy arose from the enhanced value of the property itself. That it was no part of its rents or profits, and when it was sold its entire proceeds belonged to the principal of the estate. That if the land. after the foreclosure should be regarded as personal property, as might be done under 20 Hun, 537. 95, N. Y., 64, no difference would be created in the rights of the parties for the $1,300 then would consist in the enhanced value of the security itself in the condition in which it had been placed, and as such that enhanced value being the increased value of the principal would belong to the principal of the estate. That the case would then be the same as though the mortgage which was for $8,000 had been sold for $9,300, in which event the proceeds would properly be accountable for as a part of the principal. |