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not bar a subsequent action against In vacating

assessments the the other parties liable on joint court does not vacate an assessobligation, and it was to correct ment as a whole, but moves simply error's committed on that trial that in response to the grievance and this appeal was taken.

to the extent of it; it does not Held, That this appeal is not vacate the assessment as to one affected by said's 1278. 67 N. Y., who does not apply. 385.

Order of General Term, affirmJudgment of General Term, af- ing order vacating assessment, firming judgment for plaintiff, re- modified and modified af. versed and new trial ordered, costs firmed. to abide event.

Per curiam opinion. All conOpinion by Ruger, Ch. J. All

cur. concur.



The People ex rel. Comstock, In re petition of Hughes to va- respt., v. Lucas et al., applts. cate assessment.

Decided Oct. 26, 1883. Decided Oct. 23, 1883.

A constable's bond drawn according to the

Revised Statutes, but which does not conA voluntary payment of a portion of an assessment will deprive the party so paying

tain the conditions required by the act of of the right to complain, except to the ex

1872, is not an indemnity against all his tent of the remaining lien of the assess

possible oflicial delinquencies, but has a ment.

specific and limited purpose.

An action cannot be maintained on such a It was conceded that the assess- bond for a levy and sale of property of a parment complained of was invalid

ty other than the execution debtor. and should be vacated as a lien Reversing S. C., 13 W. Dig., 432. upon the petitioner's property,

This action was brought upon a unless a voluntary payment by bond executed by defendant L. on him of one-third of the amount his appointment as constable of precludes him from relief as to the town of Oyster Bay, and was that amount.

executed by him with the other D. J. Dean, for applt.

defendants as suureties. The obliP. A. Hargous, for respt. gors jointly and severally promised

Held, That the petitioner, by to "pay to each and every person his voluntary payment of one- who may be entitled thereto all third of the assessment, lost the such sums of money as the said right to complain except to the constable may become liable to extent of the remaining lien of the pay on account of any execution assessment, as to that extent only which shall be delivered to him was the invalid assessment for collection." The bond was in injury.

I the form required by the Revised


Statutes, 1 R. S., 346, $ 21, but and upon the sale made under the judgdid not contain the additional ment she became the purchaser and took

the deed. Held, That this vested in her the conditions required by Chapter

entire interest and estate of the mortgagor 788, Laws of 1872. It appeared and mortgagee as it existed at the date of that L. had in his hands execu- the mortgage unaffected by subsequent in

cumbrances and relieved the land from tions against the property of A.

the easement reserved in the deed to her and seized and sold thereon the

husband. property of B.

This action is Reversing S. C., 13 W. Dig., 397. brought by B.'s assignee.

Richard Busteed, for applts. This action was brought to re0. N. Payne, for respt.

strain the continuance of certain Held, That the action cannot be erections on premises belonging to maintained ; that the bonú has a the defendant R. M., and which specific and limited purpose. It adjoined plaintiff's premises on does not cover the whole range of the south. It appeared that on the constable's official duties nor Feb. 12, 1859, plaintiff's trustees is it an indemnity against all his entered into an agreement under possible official delinquencies ; the seal with the defendant J. M. for liability incurred by L. was in no the sale of the premises now be. sense on account of the execution, longing to defendant R. M. That but is founded upon the trespass, agreement provided that the use of of which the execution was the light from all openings on the occasion and incident.

north side of said lot should be Judgment of General Terni, af- reserved for plaintiff's use, and on firming judgment for plaintiff, re

March 3, 1859, plaintiff conveyed versed.

the lot to J. M., subject to a Opinion by Andrews, J. All mortgage to one B. the payment concur.

of which had been assumed by plaintiff on the transfer of the lot

to it. J. M. assumed payment of EASEMENT.

the B. mortgage. On May 9, 1863, N. Y. COURT OF APPEALS. for the purpose of effecting a gift

of the lot to his wife, defendant The Rector &c. of Christ P. E. R. M., J. M. conveyed it to one C., Ch., respt., v. Mack et al., impl’d, who reconveyed to R. M.

Neither applts.

of these deeds contained any coveDecided Oct. 23, 1883.

nants on the part of the grantors

nor any reference to the covenants Plaintiff sold certain land to defendant J.,

in the contract and deed thereunder an agreement that the use of light under from plaintiff to J. M.

R. from all openings on one side should be reserved for the use of plaintiff. Defendant M. did not assume payment of the J. conveyed the land through a third party B, mortgage, and the deed to her to defendant R., his wife, whereupon the simply provided that the grant latter procured a mortgage previously existing upon the property, which had been

was subject to that mortgage. On assumed by defendant J., to be foreclosed, June 3, 1864, an action to foreclose

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the B. mortgage was commenced | for defendants, reversed and judgat defendant's request, plaintiff ment of Special Term affirmed. being made a party thereto. Under Opinion by Finch, J. All conthe decree of foreclosure and sale cur. the property was on September 22, 1864, sold to defendant R. M. and

NEGLIGENCE. MASTER AND a deed executed by the referee,

SERVANT. without reservation, restriction or condition. R. M. has put up the N. Y. SUPREME COURT. GENERAL erections complained of, which are

TERM. SECOND DEPT. of such a character as to constitute

William Barnett,

Barnett, appll., a breach of the covenants in the James M. Taylor, respt. deed from plaintiff to J. M. E. C. Boardman, for applts.

Decided Sept., 1883. Wheeler H. Peckham, for respt. Plaintiff, while descending on his employer's

Held, That the foreclosure deed elevator, found its descent stopped by an obvested in R. M. the entire interest

stacle projecting over the shaft, whereupon

he allowed the machinery to still move on, and estate of the mortgagor and

making a large amount of slack suspendmortgagee as it existed at the date

ing-rope before he checked it. Without 'of the mortgage, unaffected by correcting this he removed the obstacle, subsequent incumbrances and con

when the elevator fell some eight feet, caus

ing the injury complained of, Held, That veyances; that R. M. could and

plaintiff's act was clearly negligent, and did on the foreclosure sale pur- that the fact that the safety appliances of the chase the easement reserved by elevator were out of order by reason of plaintiff in its deed to J. W. and rust and want of oiling would not estab.

lish any liability of defendant to plaintiff. subject to which R. M. held the property. It was not the duty of Appellant had been an employee R. M. to pay off the B. mortgage; of defendant's manufactory for she had the right to leave the several years, where three elevators mortgagee to his remedy, and when were used to raise and lower wares. he asserted it the law allowed her These elevators were not shown to to become the purchaser and made have been defective in construcno distinction between her rights tion, but, on the contrary, were and those of a stranger to the title. approved and good elevators whichi Plaintiff when brought into court plaintiff assumed to use from time as a defendant in the foreclosure to time each day for a year and a suit should have sought to modify half before the accident. The elethe decree; and showing the peril vators had certain appliances atof its easement, and offering to bid tached which were intended by the the full amount of the mortgage makers as additional safeguards debt and costs upon a sale subject in case of the breaking of the susto the servitude, it should have pending rope. Plaintiff put a barasked that the sale be so made. rel on the elevator at the fourth

Judgment of General Term, re- floor and then got on himself, versing judgment of Special Term ' pulled the rope for descending,

went down to the second floor, EXECUTION. EXEMPTION. stopped, set the barrel off, started

WAIVER. down again, and when at or near the first floor he discovered an ob- N. Y. SUPREME COURT. GENERAL stacle-"a sliver "--which was on

TERM. FOURTII DEPT. the floor and projecting over so

Martin Russell, applt., v. Orthat it would stop the elevator.

ville Dean, respt. Plaintiff allowed the elevator to be stopped by the obstacle, without Decided, June, 1883. at first pulling the check, and al

Where plaintiff's team was sold under an exlowed the machinery to move on,

ecution against him, in the absence of proof thus making a large amount of

that plaintiff had no other property covered slack rope before he pulled the by the $250 exemption, his omission to check. He then, instead of revers

claim that the team was exempt was a ing the motion and taking up the

waiver of the exemption. Moreover, any

article exempt by the act of 1812 was liaslack rope and raising the elevator

ble to levy to satisfy a judgment recov. enough to permit the obstruction ered for the price of property of plaintiff to be removed, called for a shovel

wbich was of the class exempt by said

act. and worked at the obstruction with it until the elevator fell to the Appeal from judgment on refe. floor some eight feet, causing the ree's report. injury.

Replevin for a span of mules. Morris & Pearsall, for applt. Defendant justified as bailee of Sheldon & Brown, for respt. one Ostrander, who purchased the Held, That plaintiff's act was

mules at a sale under an execuclearly negligent, inasmuch as he tion against plaintiff. Plaintiff should have stopped the elevator claimed that the mules were exthe moment it struck the obstacle, empt from levy and that no title or bave reversed it and removed passed by the execution sale. The the hindrance. That plaintiff's mules were used by plaintiff as a claim that the safety appliances team in his business; he had no othwere out of order, by reason of er team; and they were necessary to rust and want of oiling, and that him in his business ; but it does not therefore defendant is liable can- appear what other property plainnot obtain. That if such neglect tiff had at the time of the levy. existed it was quite as much the Plaintiff made no claim to the conduty of plaintiff, who was using stable when the mules were taken, the elevator, or of some of his fel- | or at any other time, that they low workmen as of the defendant were exempt, and he did not at to attend to the matter. 85 N. Y., any time make such claim to de. 74; 81 N. Y., 52; Wood on Mast. & fendant, but before snit he deServt., 438.

manded the mules of defendant, Judgment affirmed, with costs. who refused to give them up. The

Opinion by Pratt, J.; Barnard, referee held that defendant was P. J., and Dykman, J., concur. entitled to judgment.

Howe & Rice, for applt.

Opinion by Smith, P. J.; HarC. W. Avery, for respt.

din and Barker, JJ., concur. Held, Section 1391, Code Civ. Pro., is substantially like the

EXECUTORS. FEES. statute which preceded it, Laws of 1842, Chap. 157, as amended by N. Y. SUPREME COURT. GENERAL Chap. 782, Laws of 1866, so far as

TERM. SECOND DEPT. this question is concerned. It not Elizabeth W. Blake et al., exhaving appeared, either that plain- ecutors, v. Elizabeth W. Blake tiff had not other property exempt et al. under S 1391 of the Code of Civil Procedure, of the value of $250,

Decided Sept. 1883. or that he at any time claimed the Where, by the terms of a will, an executor property in question to be exempt,

also becomes a trustee, powers being con

ferred and duties imposed upon him not such property must be deemed to

incident to his office of executor, the trust have been in fact liable to execu- and executorship are clistinguishable and tion. Assuming that he had other separate and a separate commission may property which was exempt under

be allowed for services as trustee to be $ 1391, he waived his claim to the

paid out of the trust fund. statutory provision in his favor, Appeal from portions of a decree in respect to the property in ques. made on accounting denying comtion, by omitting to assert it. 31 missions as trustees in addition N. Y., 648 ; 15 Barb., 568; 23 id., to commissions as executors. 240 ; 57 id., 637; 27 id., 506; 34 Anson Blake died in May, 1868, N. Y., 253 ; and 51 How., 45, con- ; leaving a last will and testament sidered.

by which he bequeathed certain Moreover, the referee found that legacies, payable at once and abthe demand upon which the judg-solutely; and by the tenth clause ment was recovered, to enforce of the will he devised and bewhich the execution by virtue of queathed to his executors all the which the mules were sold was is- rest, residue and remainder of his sued, a promissory note estate both real and personal, “in given to defendant for the price trust, to divide the same into five of a team bought of him by the parts as equal in value as may appellant. It is to be assumed be. I authorize them to receive from the evidence that the team the rents, issues and profits of my sold was of the class of property said residuary estate, so to be diexempt by the act of 1842, and vided as aforesaid," and after consequently any article exempt paying thereout all costs and exby that act was liable to levy to penses of management the net satisfy a judgment recovered for income of one of said shares to be the price of such team. 11 N. Y. paid to each of said children durLeg. Obs., 248; 14 How. Pr., ing his or her respective life, and 519,

to his or her separate use and beJudgment affirmed.

hoof. Power was given to each of


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