said children to dispose of his or her principal share by will to their children, but if they did not the share went to the children of deceased child, and if there were none, then to the surviving children, and the children of deceased children to take parents' share. The executors were further authorized to sell the residuary estate, to reinvest proceeds, to buy in property mortgaged, to execute conveyances, to keep the estate insured, to pay taxes and assessments and expenses out of the ́income, and to keep accounts and to render a copy annually to each of the children and the widow. Edward Martindale and H. A. Nelson, for respts. There was no need of a clause in the decree that the executors should hold the same as trustees. This result followed the decree. We think, therefore, that the executors are entitled to fees as trustees. The duties imposed on the executors * * * Flamen B. Candler and Charles are separate from those imposed H. Glover, for applts. Held, That the case seems to be different from the case of Hall v. Hall, 78 N. Y., 535. In that case the testator gave Margaret J. Hall, his daughter, her share of the estate, payable at the age of twenty-one. The executors dur upon them as trustees. 88 N. Y., 121. Decree modified accordingly. Opinion by Barnard, P. J. Dykman and Pratt, JJ, concur. PLEADING. TRIAL. TERM. FIRST DEPT. Bolton Hall et al., applts., v. The U. S. Reflector Co., respt. Decided Aug. 7, 1883. ing her minority were to apply the N. Y. SUPREME COURT. GENERAL income to her support, and pay over at its termination. This was one of the common incidents of the office of an executor. It is true that certain trust duties and responsibilities were incident to it, but it is usual, and so far as we can discover has never been considered a case for double commissions. different one. are The present case is a very The executors to divide an estate the absolute title to which at its creation is vested in no one absolutely. Certain persons have a If the plaintiff in an action is to recover, it must be upon the case as it is substantially embodied in the complaint; and if the defendant can succeed in defeating what otherwise appears to be a legal and valid claim, it must be upon some denial or defense alleged in the answer; neither party can derive any advantage from evidence appearing upon the trial tending to establish the existence of a cause of action or defense not included in his pleadings. Appeal from a judgment recovered on the report of a referee. This action was brought to recover money alleged to have been loaned to defendant. the issues which the referee was empowered to hear and determine. That if plaintiff is to recover, it must be upon the case as it is substantially embodied in the complaint, and if defendant can succeed in defeating what otherwise appears to be a legal and valid claim, it must be upon some denial or defense alleged in the answer, and neither party can derive any advantage from evidence appearing upon the trial tending to establish the existence of a cause of action or defense not included in his pleadings. 16 N. Y., 297; 10 N. Y., 371; 2 Kernan, 9; 9 Wall., 788, 793; 25 N. Y., 265, 270; 83 id., 552; 84 N. Y., 420. The answer set up as a defense that plaintiffs, in consideration of the assignment of a certain amount of defendant's stock to them, had agreed to advance a certain amount of money as an investment in defendant's business; that after having been put into possession and control of defendant's affairs, they corruptly and fraudulently changed their original agreement so that the money was to be advanced in the form of a loan, instead of as an investment in defendant's business. The trial took place before a referee who found that by the first agreement plaintiffs were not bound to invest their money in the defendant corporation until they should find the business to be a profitable one and fully realizing NEGLIGENCE. MASTER AND their expectations, and that the second agreement was not fraudulent; but he also found that plain tiffs had become so satisfied that they had accepted the stock, and that the preceding loans had been practically converted into corporate investments, and, for that reason, plaintiffs could not recover them in this action. William B. Hornblower, for applts. Edward P. Wilder, for respt. Held, That the facts upon which the referee found against the right of plaintiffs to recover were not alleged or relied upon in any form in the answer by way of defense, and therefore they were not within Judgment reversed and new trial ordered. Opinion by Daniels, J.; Davis, P. J., concurs. SERVANT. N. Y. SUPREME COURT. GENERAL Margaret Hickey, admrx.. applt., v. The Sylvan Lake Ore & Iron Co., respt. Decided Sept., 1883. Where deceased, an employee of defendant, was injured by the car in which he was working being thrown from the track by a spreading of the rails, and it appeared that one of the ties was split and the spike loosened, but it did not appear that it was not caused by the accident and there was no suggestion that the employees who had been repairing the track or any other employee was incompetent or that defendant had any notice of the defect, Held, That no negligence was imputable to defendant. Appeal from judgment in favor of defendant. Deceased was engaged in defendant's employ in mining ore, loading it upon cars and running them down an incline to the dumping place. The injury resulted from a spreading of the rails, whereby the car was thrown from the track. The track was laid up on ties imbedded in the earth in the ordinary way. One of the ties appears to have been split and the spike which held the rail at that point was thus loosened. It did not appear that the split was not in some way caused by the accident. P. & D., in the employ of the defendant, had been engaged in repairing the track, though it did not appear that this was the special or particular duty of either. There was no suggestion that either P. or D. or any other employee of the defendant was incompetent, and there was no evidence that the master had any notice of any defect in the tie or track. Decided Oct. 26, 1883. An attempt to board a railway train while the cars are in motion is contributory negli gence if injury results from such attempt, and no recovery can be had for the injury. It is error for the court to submit to the jury a fact with respect to which there is no conflict made by the evidence. When concurring negligence is shown to have produced the conditions from which injury and damage result, no recovery can be had by the injured party whose negligence contributed to the injury. Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial. Action to recover damages occasioned by defendant's alleged negligence, which resulted in the death of plaintiff's intestate. The injury occurred at the Chatham Square Station of the Elevated Railroad, in the city of New York. Plaintiff's intestate, following two others, ran to catch a train which was standing in the station of the Elevated Railroad. Just as those who preceded plaintiff's intestate reached the train the train started Hackett & Williams, for applt. and the employee of defendant on W. S. Eno, for respt.. Held, That if there were any negligence it was imputable to a co-servant and therefore relieved the master from any liability. Judgment affirmed, with costs. Opinion by Pratt, J.; Dykman, J., concurs. NEGLIGENCE. N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Sarah Solomon, admrx., respt., v. The Manhattan R. Co., applt. Vol. 18.-No. 1a. board the train shut the gate guarding the platforms of the cars, but those preceding plaintiff's intestate pushed the gate open and jumped on the platform when the gate was again closed just as plaintiff's intestate had placed one foot upon the platform. The gate caught the foot of plaintiff's intestate and he was carried along by the moving train for a short distance, when he was struck by the projecting water pipe at the upper end of the station and received injuries which resulted in his death. The court submitted the question of the contributory negli- | LIFE INSURANCE. TERM. FIRST DEPT. gence of plaintiff's intestate to the N. Y. SUPREME COURT. GENERAL jury, charging the jury that it was contributory negligence on the part of plaintiff's intestate if he attempted to board the train while the same was in motion. The jury rendered a verdict for plaintiff, and defendant's motion. for a new trial was denied. Mr. Deyo, for applt. Geo. Putnam Smith, for respt. Held, That the court erred in submitting to the jury the question as to whether the train had started and was in motion when plaintiff's intestate attempted to board it. There was no conflict in the evidence upon that fact. It is well settled that an attempt to board at railway train while the cars are in motion is contributory negligence if injury results from such attempt, and no recovery can be had for the injury. 49 N. Y., 177; 63 N. Y., 556. That even conceding that it was negligence for defendant's employee to close the gate a second time while plaintiff's intestate was attempting to board the train, yet that negligence could not have happened but for the negligent act of the deceased in endeavoring to board a moving train. Only a case of concurring negligence is thus made out, which is not sufficient J. C. H. Clausen, respt., v. Charles H. Russell, Receiver of the Knickerbocker Life Ins. Co., applt. Decided Aug. 7, 1883. It is not within the power of a court of equity, in the absence of fraud and mistake, to relieve the insured from a forfeiture occasioned by his own inadvertent omission to pay the premium stipulated to be paid in the policy of life insurance to keep alive the policy. Appeal from a judgment overruling a demurrer interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action. By the complaint it appeared that plaintiff, the insured, accepted a life insurance policy from the Knickerbocker Life Ins. Co., of which defendant is the receiver, in lieu of a former policy which plaintiff had surrendered. The second policy provided for the payment of interest on certain premium notes, and provided that in case default should be made in the payment of interest on such notes the policy should become void. Plaintiff inadvertently omitted by oversight to pay the interest on the notes at the time fixed for such payment in the policy and shortly thereafter tendered to justify a recovery. The court should have directed the interest on the notes and dea verdict for defendant. Judgment reversed; new trial ordered, costs to abide event. Opinion by Davis, P. J.; Daniels, J., concurs; Brady, J., concurs in result. manded that the policy be reinstated, which demand the company. refused. Edward H. Hobbs, for applt. Coles Morris and M. H. Cardozo, for respt. Held, That the court below erred in overruling the demurrer; the defendant should have had judgment thereon. The case of Hay v. The Star Fire Ins. Co., 13 Hun, 497 and 77 N. Y., 235, which the court below deemed controlling of this case, is not in point, because the decision in that case was based upon a fraudulent imposition practiced by the company. Here all the terms of the second policy were fully understood and assented to. Here the plaintiff was solely at fault. His omission His omission resulted only from his own oversight and the case reported in 82 N. Y., 172, controls this one. Judgment reversed and order directed sustaining demurrer, with leave to amend on usual terms. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. MORTGAGE. PAROL EXTEN- SION. N. Y. SUPREME COURT. GENERAL firm. Defendant made certain payments to the new firm which were entered to his credit generally. He stood indebted to the old firm also. In an action of foreclosure, Held, That the parol agreement to extend the mortgage to the new firm's advances was invalid; that the general payments made by C. to the new firm were not to be applied to the charges in his open current account with the old firm, and that defendant's wife was entitled to her inchoate right of dower in the entire fee of the mortgaged premises. C. & Co. were dealing with defendant on credit. To secure them, defendant and his wife delivered a deed to C. conveying the premises in question and intended as a mortgage for C.'s firm. C. afterwards reconveyed the premises to defendants, who executed a bond. and mortgage to C., as trustee, for $4,000, to secure defendant's existing and future indebtedness to the firm. This action is brought by C.'s administrator to foreclose this mortgage. It appeared that the surviving partner of C. & Co. and plaintiff, as trustee of C., continued the business under the old firm name and admitted new partners. They continued defendant's Edgar B. Taylor v. Jed. Post account on their books without et al. Decided Sept., 1883. Defendant and his wife delivered a deed to C., plaintiff's intestate, as a mortgage to secure C.'s firm for existing and future indebtedness. C. reconveyed the same premises to defendants, who thereupon executed a bond and mortgage to C. for the same purpose as the first conveyance. On C.'s death the old firm name and business was continued by the survivor, with new partners, and defendant continued to deal with it without change under a parol agreement that the mortgage should stand as security for his indebtedness to the new drawing any distinction between the transactions prior and anterior to the demise of C. and seemed to ignore their duties to C.'s heirs and representatives and to the creditors of the old firm. The survivor of C. & Co. did not deal as a surviving partner, but individually, and a new firm was then formed as stated which continued. to deal with defendant on credit and undertook to make a parol agreement that the mortgage should stand as security for de |