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Geo. F. Langbein and Jesse K. gence of defendant. Also, appeal Furlong, for respts. from order denying motion for a new trial.

Held, That the right of the defendants to separate bills of costs depended upon the effect to be given to the language of the order entered upon the decision of the appeal.

That that did not award separate costs to each of the defendants, but merely gave a general direction affirming the judgment with costs, and as there was but one appeal, and but one notice of it served, it could only have been intended to include the costs of that appeal, 45 How., 139; 28 Hun, 505, and consequently the respondents were entitled to but one bill of costs on the appeal.

Order reversed and order entered limiting the costs of the appeal to one bill.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.





Martin L. Ehrgott, respt., v. The Mayor, &c., of N. Y., applts.

On the night of February 27, 1881, which was dark, rainy, foggy and cold, plaintiff was driving, in a covered rockaway drawn by a team of horses, from the city of New York to South Yonkers, along the public highway known as Broadway or old Kingsbridge road, when he accidentally drove into a ditch, over a foot wide and which extended across the highway at its junction with McComb street. The accident occurred in what is known as the annexed district, the territory separated from Westchester County and annexed to the city of New York by Chap. 613 of the Laws of 1873.

David J. Dean and Charles Blandy, for applts.

De Lancy Nicoll, for respt. Held, That the Mayor, &c., should not be held liable herein, the duty of keeping in repair the roads, streets and avenues of the annexed district not having been imposed upon them, but exclusively upon the Department of Parks.

Although the act of annexation, | case, directly from the legislature,



Laws 1873, Chap. 613, and the acts amendatory thereof make the annexed district a part of the city of New York, and vest its public property in the said city, and declare that the Mayor, &c., succeed to the trusts and duties of the several towns therein, yet the same statutes divide the public duties to be performed between the Mayor, &c., of New York and certain of its independent departments, assigning specific duties to each. Thus in § 11 it is enacted that "The Mayor, &c., of New York * shall exercise the same powers and shall perform the same duties in and over the territory hereby annexed * * * as if said territory had always been a part of the city of New York, except as may be specially limited, excepted or extended by this act," while in 14 it is provided that § "The Commissioners of the Department of Public Parks of the city of New York shall have the exclusive power to locate and lay out, construct and maintain all public parks, streets, roads and avenues, and to devise plans for and locate all bridges and tunnels, and shall have exclusive control of the maintenance and construction of all public parks within the territory hereby annexed, and to construct and maintain all bridges, tunnels, sewers, streets, roads and avenues, so located and laid out," &c.

The Park Department exercises, and has always exercised, inde. pendent powers derived, as in this

Laws of 1857, Chap. 771; 1859, Chap. 363; 1861, Chap. 88; 1864, Chap. 275; 1865, Chaps. 564, 565; 1866, Chap. 367, §7; 1866, Chap. 757, § 3; 1867, Chap. 580, §2; 1867, Chap. 697, §6; and although the commissioners are appointed by the Mayor, and the Park Department is one of the departments of the city government, yet, as the public duty to be performed by the commissioners in maintaining the roads, streets and avenues of the annexed district is not laid by the legislature upon the city, but upon the commissioners, and the city corporation has no private interest in that duty and derives no special benefit or advantage from it, the commissioners are not, with respect to that duty, servants or agents of the municipality, and for their negligence, or that of their employees or officers, the corporation is not liable, even though such negligence be in the care of what is made by the act corporate or trust property of the city.

Twogood v. Mayor, 15 W. Dig., 59, distinguished.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

Opinion by Daly, J.; Daly, Ch. J., concurs. Van Brunt, J., dissents on the authority of Twogood v. Mayor, 15 W. Dig., 59.

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The evidence of persons who were accidentally present at the execution of the will, but who had nothing to do with it, is not entitled to the same weight as that given by the subscribing witnesses. Where a decree admitting a will to probate

has been rendered by the Surrogate on conflicting evidence and affirmed by the General Term it is not reviewable in the Court of Appeals.

The question on this appeal is whether H., the testator, acknowledged his signature to his will to the subscribing witnesses at that time they signed the attestation clause. The proof shows that H. drew the will and brought it to one J., who wrote on the attestation clause. One of the witnesses, S., testified that he was present at that time, and that J. asked H. if the signature to the will was his, and H. replied that it was; that J. then asked H. if that was his last will and testament and he said it was; that at that time the will had been signed by H. and the two witnesses at his request, in his presence and in the presence of each other, signed their names there to. J., the other witness, did not remember all that occurred, but testified that H. came into his office with a paper he thought was the will in controversy, and stated that he desired him to witness his will; that he asked him if he acknowledged the paper to be his last will and testament and H. said he did; that he then asked him if he desired S. and myself to sign it


as witnesses, and H. said
did; that they both then signed
it in the presence of each other
and of H. On cross-examination
J. said that he could not swear that
H. said that the signature to the
will was his, but he swore that H.
acknowledged that the instrument
was his last will and testament.

Eugene B. Travis, for applt.
Samuel Hand, for respt.

Held, That the proof was sufficient; that one of the witnesses having sworn to facts showing a strict compliance with the statute, the want of memory of the other witness cannot overcome the positive testimony.

Certain witnesses were sworn who had nothing to do with the execution of the will and were accidentally present. It was claimed that their testimony contradicted the subscribing witnesses.

Held, That the presumption is that these witnesses did not give the same attention to what transpired as the subscribing witnesses did, and their testimony is not entitled to the same weight as the evidence given by the subscribing witnesses.

The decision of the Surrogate admitting the will to probate was affirmed by the General Term.

Held, That the Surrogate having rendered the decree upon conflicting evidence as to the facts, and it having been affirmed by the General Term, it is not reviewable in this court. 88 N. Y., 369; 87 id., 515.

Judgment of General Term, affirming decree of Surrogate, affirmed.

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N. Y. COURT OF APPEALS. The Bank of California, respt., v. Webb et al., applts.

Decided Jan. 15, 1884.

Defendants gave a written guaranty of payment of drafts to be drawn between certain dates by one A., provided the amount guaranteed should not at any one time exceed $13,000; the guaranty to be continuous. Held, That it was not confined to drafts amounting to just that sum specified or to not more than that sum or to just one draft drawn for that sum; but the guarantors are liable up to that sum for the balance due upon any drafts drawn during that period. As between the creditor and his debtor, unless the latter directs the application of a payment or requests the former to exercise his option, there can be no limit of time within which the creditor must make the applica


In July, 1878, the defendants gave plaintiff their written guaranty of the payment at maturity of all drafts that might be drawn at sixty days' sight by A., the agent of the Am. G. Co., at Honolulu, on that company in New York between August 1, 1878, and July 31, 1879, provided the amount guaranteed should not at any one time exceed $13,000. The writing stated that the guaranty was to be continuous during the period named and upon payment by the company of any of the drafts the guaranty was again to be in full force and effect as to any other of the drafts until the maturity and payment of the last draft made during the period named. On June 30, 1879, A., as agent for

said company, drew a draft at sixty days' sight on the company for $13,000 to the order of B. & Co., and on July 7th drew a similar draft for $8,000. B. & Co. indorsed both these drafts to plaintiff before maturity. They were accepted but were not paid at their maturity and were duly protested. In November, 1879, this action. was commenced against the defendants upon their guaranty to recover the amount of the first draft. Their answer admits the drawing of the draft, its acceptance, non-payment, protest, and a demand upon them for its payment and their refusal to pay, and they allege that the company delivered to plaintiff a bill of lading of a cargo of guano on board ship worth about $8,000, which cargo had been sold or would soon be sold and that the proceeds were to be and should be applied on the draft in suit, and also that the company had in January, 1880, paid, to apply upon the draft, $2,545.47. On the trial in December, 1881, plaintiff called as a witness L., of the firm of L. & Co., who were its New York agents, who proved the indorsement of the draft to plaintiff and that since the commencement of the action two payments of $1,500 each, made on December 20, 1880, and June 25, 1881, had been made upon the draft.

On cross-examination L. testified that B. & Co. were bankers in Honolulu and that the receipt for the bill of lading dated October 21, 1879, mentioned in the answer, reciting that the bill was on account of the two drafts, was

sent by them to him, and that the option as to the application when proceeds of the guano were he makes the payment. After $7,199.92, and he was informed by that the money belongs to the letter from B. & Co. that plaintiff creditor and he controls its applihad also, through B. & Co. at cation. As between the creditor Honolulu, on January 6, 1880, re- and his debtor, unless the latter ceived the farther sum of $2,144. intervenes and requests him to exThe court below held that none of ercise his option, there can be no that sum was applicable upon the limit of time within which he must draft in suit. Plaintiff offered to make the application. If neither read in evidence the letter of B. & party makes any application of Co., advising L. & Co. of the pay- payment and the matter comes ment, but it was excluded as a into court then the court will make mere declaration of past events by such application of the payment B. & Co. as equity and justice require.

T. E. Stillman, for applts. Everett P. Wheeler, for respt. Held, Error; that defendants having called out on cross-examination the information conveyed by said letter, they made its contents their evidence and plaintiff was entitled to have the letter read in evidence.

The letter was competent or the entire evidence of the witness was incompetent and should have been stricken out or disregarded. It must be taken as proved that $2,144 was received by plaintiff in January, 1880, after the commencement of this suit and more than a year thereafter credited against the draft for $8,000, as it had a right to do. 15 Wend., 20; 43 N. Y.. 53; 75 id., 461; 83 id., 51; 4 Cra., 317; 2 B. & C., 65; 4 N. & M., 1; 1 Am. L. Cas., 362.

A debtor paying money to a

Also held, That the guaranty of defendants being a continuing one to the extent of $13,000, it was not confined to drafts amounting to just that sum or to not more than that sum or to just one draft drawn for that sum. It therefore covered the two drafts, neither of which were paid. Defendants were liable to plaintiff, after deducting the $7,000 recovered in this action, on account of the other draft for the balance up to $13,000. So long as there was $13,000 due on both drafts it could make no legal difference with defendants how the payments were applied.

Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

Opinion by Earl, J. All concur.


creditor to whom he owes several N.Y. SUPERIOR COURT. GENERAL

debts may direct the application of the payment, because the money is his and he may do as he will with it and control its application. But the debtor must exercise his


The Shoe & Leather Reporter Association, respt., v. Isaac H. Bailey, impld, applt.

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