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said children to dispose of his or life estate, and beyond that whather principal share by will to their ever of a present fee there may be children, but if they did not the is liable to be divested by death share went to the children of de- before the time for the distribution ceased child, and if there were comes. In the meantime, a rigid none, then to the surviving chil. trust in and over it is created, cerdren, and the children of deceased tain charges are to be made out of children to take parents' share. income and the net proceeds an

The executors were further au-nually distributed. The ordinary thorized to sell the residuary es- administration has been completed tate, to reinvest proceeds, to buy and the amount of the residue in property mortgaged, to execute determined by judicial decree. conveyances, to keep the estate

There was no need of a insured, to pay taxes and assess- clause in the decree that the execments and expenses out of the utors should hold the same income, and to keep accounts and trustees. This result followed the to render a copy annually to each | decree.

We think, of the children and the widow. therefore, that the executors are

Edward Martindale and H. A. entitled to fees as trustees. The Nelson, for respts.

duties imposed on the executors Flamen B. Candler and Charles are separate from those imposed H. Glover, for applts.

upon them as trustees. 88 N.Y., Held, That the case seems to 121. be different from the case of Hall Decree modified accordingly. v. Hall, 78 N. Y., 535. In that Opinion by Barnard, P. J. case the testator gave Margaret J. Dykman and Pratt, JJ , concur. Hall, his daughter, her share of the estate, payable at the age of

PLEADING. TRIAL. twenty-one. The executors during her minority were to apply the N. Y. SUPREME Court. GENERAL income to her support, and pay TERM. FIRST DEPT. . over at its termination. This was one of the common incidents of Bolton Hall et al., applts., v. the office of an executor. It is The U. S. Reflector Co., respt. true that certain trust duties and

Decided Aug. 7, 1883. responsibilities were incident to it, but it is usual, and so far as we If the plaintiff in an action is to recover, it can discover has never been con- must be upon the case as it is substantially sidered a case for double commis

embodied in the complaint; and if the de

fendant can succeed in defeating what sions. The present case is a very

otherwise appears to be a legal and valid different one. The executors claim, it must be upon some denial or are to divide estate the defense alleged in the answer ; neither absolute title to which at its

party can derive any advantage from evi

dence appearing upon the trial tending to creation is vested in no one abso

establish the existence of a cause of action lutely. Certain persons have a or defense not included in his p!eadings.


Appeal from a judgment recov- | the issues which the referee was ered on the report of a referee. empowered to hear and determine.

This action was brought to re- That if plaintiff is to recover, cover money alleged to have been it must be npon the case as it is loaned to defendant.

substantially embodied in the comThe answer set up as a defense plaint, and if defendant can sucthat plaintiffs, in consideration of ceed in defeating what otherwise the assignment of a certain amount appears to be a legal and valid of defendant's stock to them, had claim, it must be upon some denial agreed to advance a certain amount or defense alleged in the answer, of money as an investment in de- and neither party can derive any fendant's business; that after hav- advantage from evidence appear. ing been put into possession and ing upon the trial tending to escontrol of defendant's affairs, they tablish the existence of a cause of corruptly and fraudulently chang- action or defense not included in ed their original agreement so that his pleadings. 16 N. Y.,

16 N. Y., 297 ; 10 the money was to be advanced in N. Y., 371 ; 2 Kernan, 9; 9 Wall., the form of a loan, instead of as 788, 793; 25 N. Y., 265, 270 ; 83 an investment in defendant's bus. id., 552; 84 N. Y., 420. iness. The trial took place before Judgment reversed and new trial a referee who found that by the ordered. first agreement plaintiffs were not Opinion by Daniels, J.; Davis, bound to invest their money in the P. J., concurs. defendant corporation until they should find the business to be a profitable one and fully realizing NEGLIGENCE. MASTER AND their expectations, and that the

SERVANT. second agreement was not fraudu- N. Y. SUPREME COURT. GENERAL lent; but he also found that plain

TERM. SECOND DEPT. tiffs had become so satisfied that they had accepted the stock, and Margaret Hickey, admrx., that the preceding loans bad been applt., v. The Sylvan Lake Ore practically converted into corpor- & Iron Co., respt. ate investments, and, for that reason, plaintiffs could not recover

Decided Sept., 1883. them in this action.

Where deceased, an employee of defendant, William B. Hornblower, for was injured by the car in which he was applts.

working being thrown from the track by Edward P. Wilder, for respt.

a spreading of the rails, and it appeared that

one of the ties was split and the spike loosHeld, That the facts upon which

ened, but it did not appear that it was not the referee found against the right caused by the accident and there was no of plaintiffs to recover were not suggestion that the employees who had alleged or relied upon in any form

been repairing the track or any other em

ployee was incompetent or that defendant in the answer by way of defense,

had any notice of the defect, Held, That and therefore they were not within no negligence was imputable to defendant. Appeal from judgment in favor Decided Oct. 26, 1883. of defendant.

An attempt to board a railway train while the Deceased was engaged in de- cars are in motion is contributory neglifendant's employ in mining ore,

gence if injury results from such attempt, loading it upon cars and running It is error for the court 10 submit to the jury

and no recovery can be had for the injury. them down an incline to the dump- a fact with respect to which there is no ing place. The injury resulted conjlict made by the evidence. from a spreading of the rails,

When concurring negligence is shown to

have produced the conditions from which whereby the car was thrown from

injury and damage result, no recovery can the track. The track was laid up be had by the injured party whose neglion ties imbedded in the earth in gence contributed to the injury. the ordinary way. One of the ties Appeal from a judgmententered appears to have been split and the on the verdict of a jury, and from spike which held the rail at that an order denying a motion for a point was thus loosened. It did

new trial. not appear that the split was not Action to recover damages ocin some way caused by the acci- casioned by defendant's alleged dent. P. & D., in the employ of negligence, which resulted in the the defendant, had been engaged death of plaintiff's intestate. in repairing the track, though it The injury occurred at the Chatdid not appear that this was the bam Square Station of the Elevated special or particular duty of either. | Railroad, in the city of New York. There was no suggestion that either Plaintiff's intestate, following two P. or D. or any other employee others, ran to catch a train which of the defendant was incompetent, was standing in the station of the and there was no evidence that the Elevated Railroad. Just as those master had any notice of any de- who preceded plaintiff's intestate fect in the tie or track.

reached the train the train started Hackett & Williams, for applt. and the employee of defendant on W. S. Eno, for respt.

board the train shut the gate

gnarding the platforms of the cars, lleld, That if there were any but those preceding plaintiff's innegligence it was imputable to a

testate pushed the gate open and co-servant and therefore relieved jumped on the platform when the the master from any liability.

gate was again closed just as Judgment affirmed, with costs.

plaintiff's intestate had placed one Opinion by Pratt, J.; Dykman, foot upon the platform. The gate J., concurs.

caught the foot of plaintiff's intes

tate and he was carried along by NEGLIGENCE.

the moving train for a short dis

tance, when he was struck by the N.Y. SUPREME COURT. GENERAL

projecting water pipe at the upper TERM. FIRST DEPT.

end of the station and received Sarah Solomon, admrx., respi., injuries which resulted in his v. The Manhattan R. Co., applt. death. The court submitted the

Vol. 18.-No. 1a.

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question of the contributory negli. | LIFE INSURANCE.
gence of plaintiff's intestate to the N. Y. SUPREME COURT. GENERAL
jury, charging the jury that it was

contributory negligence on the

J. C. H. Clausen, respt., v. part of plaintiff's intestate if

Charles H. Russell, Receiver of he attempted to board the train

the Knickerbocker Life Ins. Co., while the same was in motion.

The jury rendered a verdiet for
plaintiff, and defendant's motion

Decided Aug. 7, 1883.
for a new trial was denied.

It is not within the power of a court of equity, Mr. Deyo, for applt.

in the absence of fraud and mistake, to

relieve the insured from a forfeiture ocGeo. Putnam Smith, for respt.

casioned by his own inadvertent omission Held, That the court erred in

to pay the premium stipulated to be paid in submitting to the jury the question the policy of life insurance to keep alive as to whether the train had started

the policy. and was in motion when plaintiff's Appeal from a judgment overintestate attempted to board it. ruling a demurrer interposed on There was no conflict in the evi- the ground that the complaint did dence upon that fact. It is well not state facts sufficient to constisettled that an attempt to board a tute a cause of action. railway train while the cars are in By the complaint it appeared motion is contributory negligence that plaintiff, the insured, acif injury results from such attempt, cepted a life insurance policy from and no recovery can be had for the the Knickerbocker Life Ins. Co.,of injury. 49 N. Y., 177; 63 N. Y., which defendant is the receiver, 556.

in lieu of a former policy which That even conceding that it was plaintiff had surrendered. The negligence for defendant's em- second policy provided for the ployee to close the gate a second payment of interest on certain time while plaintiff's intestate was premium notes, and provided that attempting to board the train, yet in case default should be made in that negligence could not have the payment of interest on such happened but for the negligent act notes the policy should become of the deceased in endeavoring to void. Plaintiff inadvertently board a moving train. Only a case omitted by oversight to pay the of concurring negligence is thus interest on the notes at the time made out, which is not sufficient fixed for such payment in the polto justify a recovery.

icy and shortly thereafter tendered The court should have directed the interest on the notes and de. a verdict for defendant.

manded that the policy be reinJudgment reversed; new trial stated, which demand the company ordered, costs to abide event. refused.

Opinion by Davis, P. J.; Dan- Edward H. Hobbs, for applt. iels, J., concurs; Brady, J., con- Coles Morris and M. H. Carcurs in result.

dozo, for respt.

Held, That the court below firm. Defendant made certain payments

to the new firm which were entered to his erred in overruling the demurrer;

credit generally. He stood indebted 10 the the defendant should have had

old firm also. In an action of foreclosure, judgment thereon. The case of

Held, That the parol agreement to extend Hay v. The Star Fire Ins. Co., 13 the mortgage to the new firm's advances

was invalid ; that the general payments Hun, 497 and 77 N. Y., 235, which

made by C. to the new firm were not to the court below deemed controll

be applied to the charges in his open ing of this case, is not in point, be- current account with the old firm, and cause the decision in that case was that defendant's wife was entitled to her based upon a fraudulent imposi

inchoate right of dower in the entire

fee of the mortgaged premises. tion practiced by the company. Here all the terms of the second C. & Co. were dealing with depolicy were fully understood and fendant on credit. To secure them, assented to. Here the plaintiff defendant and his wife delivered was solely at fault. His omission a deed to C. conveying the premresulted only from his own over- ises in question and intended as a sight and the case reported in 82 mortgage for C.'s firm. C. afterN. Y., 172, controls this one. wards reconveyed the premises to

Judgment reversed and order defendants, who executed a bond directed sustaining demurrer, with and mortgage to C., as trustee, for leave to amend on usual term 3. $4,000, to secure defendant's ex

Opinion by Daniels, J.; Davis, isting and future indebtedness to P. J., and Brady, J., concur. the firm. This action is brought

by C.'s administrator to foreclose this mortgage.

It appeared that MORTGAGE. PAROL EXTEN the surviving partner of C. & Co. SION. PAYMENTS. and plaintiff, as trustee of C., con

tinued the business under the old N. Y. SUPREME COURT. GENERAL firm name and admitted new partTERM. SECOND DEPT.

ners. They continued defendant's Edgar B. Taylor v. Jed. Post account on their books without et al.

drawing any distinction between

the transactions prior and anterior Decided Sept., 1883.

to the demise of C. and seemed to

ignore their duties to C.'s heirs Defendant and his wife delivered a deed to

C., plaintiff's intestate, as a mortgage to and representatives and to the secure C.'s firm for existing and future in- creditors of the old firm. The debtedness. C. reconveyed the same prem- survivor of C. & Co. did not deal ises to defendants, who thereupon executed

as a surviving partner, but india bond and mortgage to C. for the same purpose as the first conveyance. On C.'s

vidually, and a new firm was then death the old firm name and business was formed as stated which continued continued by the survivor, with new part- to deal with defendant on credit ners, and defendant continued to deal with

and undertook to make a parol it without change under a parol agreement that the mortgage should stand as

agreement that

the mortgage security for his indebtedness to the new

should stand as security for de

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