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that will give it a prospective operation, and is incapable of any other. It furnishes a rule for future actions in cases arising subsequent to its enactment. See 24 Hun, 464; 87 N. Y., 441. This view of the section would rescue the case from its operation and leave the former statute applicable but for § 414. That section provides exemption for all causes of action existing at the time of its adop tion from the system of limitation in Chap. IV., and furnishes a short statute of limitation of two years for the control of actions commenced thereon. It applies to all causes of action accrued at that time, and limits the right to all remedies thereon, unless pursued within two years. It was designed to have retroaction, and as it affords a reasonable time and opportunity for the assertion of all legal rights then existing, it was within the competency of the legislature to make it. The cause of action asserted by plaintiffs accrued previous to Jan. 9, 1877, and so was in existence on the 1st of Sept., 1877, when § 414 of the Code became a law. Under it plaintiffs had two years within which to commence their action, but they did not begin the same until Jan. 10, 1880. They did not institute before the expiration of two years after the section took effect; therefore the provision of 394 constitutes the rule of limitation applicable to their action.

Judgment affirmed, with costs. Opinion by Dykman J.; Pratt, J., concurs; Barnard, P. J., not sitting.

Vol. 20.-No. 20a.

WILLS. TRUSTS.

N. Y. COURT OF APPEALS.

Bailey, exr., applt., v. Bailey et al., respts.

Decided Dec. 2, 1884.

Testator by his will devised the use and in

come of his house and lot to his wife in lieu of dower and provided on her death they should become a part of the residue of the estate. The residue was devised to the executor in trust to receive the rents, &c., and pay them to beneficiaries named during the lives of two persons who were strangers to the trust. was valid and did not power of alienation; created during the life of the widow in the property devised in lieu of dower, and that on a refusal by the widow to accept the devise it became inoperative.

Held, That the trust unduly suspend the that no trust was

This action was brought for the construction of certain portions of the will of B. By the fifth clause of his will, after bequeathing to his wife certain property, B. devised to her the use and income of the house where he resided, and declared that "upon her death. the said house and lot to become a part of the residue of my estate, and to be disposed of as hereinafter provided." The will further provided that the above bequest to the testator's wife should be in lieu of any and all right of dower.

The residue of the estate was devised by B. to his executor, in trust, to receive the rents and income and divide the same into four parts and to pay each of said parts to beneficiaries named during the lives of two persons who are strangers to the trust. Calvin Frost, for applt. Samuel Hand, William F. Cogs

well and Lucien B. Chase, for respts.

Held, That the trust was valid and did not unduly suspend the power of alienation.

Also held, That no trust was created during the life of the widow in the property devised to her in lieu of dower, and she had the absolute right to dispose of her interest therein. The gift of the use and income was equivalent to a devise of the land itself during the life of the widow, and she had a legal title and was entitled to possession of the same. 3 Washb. on R. P., 450; 2 Johns. on Wills, 534; 80 N. Y., 324; 3 Barb. Ch., 76.

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awarded to the city of New York $25,000 for lands taken by the petitioner. The award was confirmed by an order of the Special Term of the Supreme Court, which directed the petitioner to pay the sum awarded to the city chamberlain, for the use of the city, pursuant to Sec. 17 of Chap. 140, Laws of 1850, which provides that the order confirming the report of the commissioners shall "direct to whom the money is to be paid, or in what manner it shall be deposited by the company." The order was entered Oct. 22, 1869,

Also held, That upon a refusal of the widow to accept the devise it became inoperative. Downing v. Marshall, 23 N. Y., and in pursuance thereof, on Oct. 366, distinguished.

Judgment of General Term, affirming judgment of referee, modified, and as modified affirmed.

26th, the company paid the award to the chamberlain, who gave his receipt for it. On the next day the city appealed from the order to the General Term, where the

Opinion by Miller, J. All con- order was reversed, and a new ap

cur.

EMINENT DOMAIN. APPEAL.

N. Y. COURT OF APPEALS. In re petition of the N. Y. & H. RR. Co. to confirm report of Commissioners of Appraisal.

Decided Jan. 20, 1885.

Where, on taking land for railroad purposes, an award was made to the city which was paid to the chamberlain as directed, Held, That he was only a depositary, and that in the absence of proof that the city had taken or used the money his receipt thereof could not be held a waiver of the right to appeal.

praisal before newly appointed commissioners ordered. The company moved, at General Term, to dismiss the appeal on the ground that the city had received the amount of the award, and thereby waived its right of appeal. This motion was denied. The company has appealed from the order of denial and the order of reversal to this court. There was no proof that the city had ever taken or used the money paid the chamberlain.

H. H. Anderson, for applt.
D. J. Dean, for respt.

Held, that the motion to dismiss the city's appeal was properly denied; that the chamberlain was merely a depositary of the money for the use of the city, and in the absence of proof that the city had taken or used the money his receipt could not be held to be a waiver of the right of appeal.

Also held, That under Sec. 18 of the act under which the proceedings were had, the company was entitled to enter upon, take possession of and use the land condemned for the purposes of its incorporation, and the title vested in it; but either party could appeal from the order confirming the award of the commissioners

to the General Term, notwithstanding the company takes possession of the lands and pays or deposits the amount of the award. 94 N. Y., 287.

Section 18 of the act of 1850, Chap. 140, provides that on the hearing of an appeal to the General Term from an order confirming the award of commissioners, "the court may direct a new appraisal before the same, or new commissioners in its discretion." It does not appear from the order appealed from that it was not made in the exercise of such discretion.

Held, That this court cannot look at the opinion to see upon what ground the new appraisal was ordered. 82 N. Y., 95.

Also held, That this being a special proceeding, and the order appealed from not being final, no appeal lies. Code § 190; 67 N. Y., 555; 77 id., 514; 81 id., 305. Appeal dismissed.

Opinion by Earl, J. All concur, except Rapallo, J., of counsel, not voting.

SHERIFFS. SUBSTITUTION. N. Y. COURT OF APPEALS. Hayes, applt., v. Davidson, sheriff, respt.

Decided Jan. 20, 1885.

To authorize the granting of an order under SS 1421-1427 of the Code, substituting the indemnitors in place of the sheriff, it must affirmatively appear in the motion papers that the applicants became indemnitors before the commencement of the action.

As to whether an order can be granted where the property taken was seized under separate and distinct levies at different times, as to some of which only indemnity has been given, and where the indemnity refers to different seizures, the penalties vary largely in amount and some of the indemnitors do not apply, quære.

This was an appeal from an order of General Term, affirming an order of Special Term discharging defendant from his liability as sheriff to plaintiff for an alleged trespass in seizing and converting his property, and substituting in his place as defendant several persons who claim to have indemnified the sheriff for his acts in seizing the property. The motion was made under §§ 1421 to 1427 of the Code of Civil Procedure, which provide that when an action like the present is brought, "if a bond or written undertaking indemnifying the officer against the levy or other act was given in behalf of the judgment creditor, or the plaintiff in the warrant, before the action was commenced, the person or persons who gave

it" may be substituted as defendants in the place of the officer and one acting by his command or in his aid. (1421). It is also provided, in case the pleadings do not show that the case is one where the order may be granted, the facts may be otherwise shown, and that the moving papers must contain a written consent duly executed, acknowledged and certified on the part of the applicant to be made defendant (§ 1422). The court is authorized to impose such terms on granting the order as justice may require (§ 1423), and that when the indemnity given by the applicants relates only to a part of the property the action may be divided and the applicants admitted to defend as to that part of the action which affects the property in which they are interested (§ 1424). It did not appear when the action was commenced or that the bonds of indemnity were executed prior thereto.

Peter Condon, for applt.

George F. Langbein, for respt. Held, That as the statute makes it one of the conditions of the application that the applicants became indemnitors before the commencement of the action that fact must appear affirmatively in the motion papers to authorize the granting of the order of substitution.

As to whether an order of substitution authorized by §§ 1421-1427 of the Code of Civil Procedure could be granted in a case where the property taken consists of of numerous articles of large value, and has been seized

upon separate and distinct levies under numerous processes at different times, as to some of which indemnity has been given and others not, and where the indemnity refers to different seizures and the penalties of the respective bonds vary largely in amount, and some indemnitors apply for substitution and others do not, quære.

Order of General Term, affirming order of Special Term granting motion for order of substitution, reversed, and motion denied. Opinion by Ruger, Ch. J. All concur.

CONTRACT. PRACTICE. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Timothy A. Smith et al., applts., v. Thomas Brady, respt.

Decided Oct., 1884.

In an action upon a land contract it is competent for defendant to show that such contract was abandoned and rescinded and that a new contract, as to other subject matter, was accepted by plaintiff in full satisfaction, and this may be done by parol. Where a stipulation provided that defendant might appeal and interpose a general denial and the answer as served contained also an allegation that the contract in question had been abandoned and a new one substituted therefor and that plaintiffs were paid in full, Held, That an order allowing the answer to stand on payment of costs would be upheld on the ground that the answer ought to stand as it was to fairly carry out the object of the stipulation.

Appeal from order of County Court granting motion for a new trial on the minutes, and also from a prior order striking out answer

unless defendant pay to plaintiffs' attorney $10 costs before the case is reached and called, in which case the answer was to stand.

Action brought in justice's court to recover balance due on a land contract. In that court plaintiffs recovered judgment for $92.10 and costs by default. Plaintiffs having moved for leave to issue execution, defendant moved to vacate the judgment on the ground that the summons had never been served on him and that he had no notice of the judgment until plaintiffs' motion papers were served, and thereupon a stipulation was entered into by which defendant was allowed to perfect an appeal for a new trial in County Court and interpose a general denial.

The answer in County Court set up the general denial, and also that the land contract had been rescinded and abandoned, and that plaintiffs received back the premises in consideration that defendant would lose what he had paid and would purchase another lot of plaintiffs, which he did, and that plaintiffs were paid in full.

It appeared that in September, 1873, plaintiffs, by written contract, agreed to sell to defendant a certain lot on Palmer street, in Watertown, for $680 and interest; defendant agreeing to pay $50 down and the balance in thirtyfive equal quarterly instalments. The contract provided that if defendant failed to perform any of his covenants, plaintiffs, if they elected to disaffirm the agreement by reason thereof, were at liberty to do so, and thereupon the agree

On

ment should become inoperative and void as against them, and defendant be liable to be removed as a tenant holding over. Defendant paid the $50, took possession, but made no other payments. August 20, 1874, the parties entered into a contract for the sale and purchase of a lot on Ash street for $300, of which $40 was paid down and the balance to be paid in ten years. Defendant took possession of this lot and surrendered possession of the other. Defendant claimed that the contract for the Palmer street lot was rescinded and abandoned between the parties, in consideration of which the contract for the Ash street lot was taken, and testified that one of the plaintiffs told him "Whatever I paid when the contract was throwed up a man lost it, so he called it an even thing between me and him to throw up the old contract and take a new contract on Ash street; called it square."

The County Court ordered a verdict for plaintiffs for the amount claimed. Afterwards, on a motion for a new trial on the minutes, this verdict was set aside and a new trial granted.

Geo. S. Hooker, for applts.
Thos. F. Kearns, for respt.

Held, That the question of abandonment and satisfaction should have gone to the jury, and that therefore the court did not err in granting a new trial. Upon the pleadings as they stood at the trial the issue was whether the first contract had been rescinded and

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