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no trust, cannot maintain an action for the

cannot maintain an action for the construction of the devise, but must assert

construction of the devise, but his title in an action at law.

must assert his title by ejectment Whether a clause restraining alienation during the lifetime of the devisce, to whom a

or other legal action, or if in posfee was devised determinable on her death

session must await an attack upon without issue, is repugnant to the estate de

it and set up the devise in answer vised and so void is purely a question of

to a hostile claim. 11 Paige, 505. law and involves no elements of equitable jurisdiction.

It appeared that on July 22, The premises were sold under execution on a 1874, one M. obtained a judgment judyment against W., who allowed the against W. On April 5, 1875, an time of redemption to pass. Defendant, a

execution was issued thereon, and subsequent judgment creditor, redeemed and obtained a deed from the sheriff. Held,

on January 29, 1876, the premises That W, could not maintain an action to in suit were sold thereunder. On redeem ; and that defendant's title having Nov. 8, 1875, defendant R. recovbeen acquired under the law a court of ered a judgment against W.and on equity could not divest him of it. Affirming S. C., 14 W. Dig., 90.

February 24, 1877, redeemed said

premises under his judgment by This action was brought to ob- paying M. the amount of his bid tain a construction of the will of and interest. No redemption beS., and to have certain premises ing made by any other creditor declared inalienable during the the sheriff executed and delivered lifetime of the plaintiff W. and to R. a deed of said premises. W. that she be allowed to redeem the in not availing herself of the right same from a sale under an execu- to redeem acted on the advice of tion. It appeared that under the counsel that her interest as dev. will of S. W. became entitled to a isee was not subject to sale on exfee in a house and lot determinable ecution. which upon her death without is- Held, That W. cannot mainsue, in event said premises were to tain this action as one to redeein go to the persons designated. An from the execution sale ; that W. nexed to this devise was a clause having taken the risk of the sale which directs that the house and the court cannot relieve ber fron lot shall not be in any manner

the
consequences : that

R.'s conveyed during the life of W. title as redeeming creditor having

Auburn Birdsall, for applts. been acquired under the law a Alex Cumming. for respt. court of equity cannot divest him

Held, That whether the clause of it. in the will restraining alienation This decision does not impair is repugnant to the estate devised, any remedy W. may have by apand so void, is a question of law plication to the court to set aside and involves no element of equi- the sale for irregularity or other table jurisdiction.

reason. A devisee who claims a mere Judgment of General Term, aflegal estate in real property of a firming judgment dismissing comtestator, where there is no trust, plaint, affirmed.

concur.

Opinion by Andrews J. All | fit for the purposes for which they

were hired. There was evidence

to warrant this assertion and to LEASE.

show that the fixtures and furni

ture of the society were injured by N. Y. COURT OF APPEALS.

the water and plaster which it Vann et al., exrs,, applts., v. brought down, and that the tenant Rouse et al., respts.

suffered thereby in other respects.

This action was brought upon the Decided Jan. 15, 1884.

guaranty, to recover rent accruing A clause in a lease providing that in case the by the terms of the lease after the lessee shall abandon the premises at any

tenant vacated the premises. Detime the whole rent shall become due does not show an intention on the part of the

fendants set up by way of counterlessee to waive his right under the statute

claim the damages the tenant had to abandon in case the premises become sustained. It was assumed by untenantable without his fault, and does

both parties that there was evinot bind him to pay rent accruing after

dence from which the jury might such an abandonment. An objection that a claim set up in the an

find that defendants were assigswer was not the proper subject of a count- nees of the tenant in respect to the erclaim cannot be raised for the first time damages, but plaintiff's contended on appeal.

that the assignment was not made On April 22, 1873, plaintiffs' tes until after the commencement of tator leased to a society three the action and so not available to rooms, to be occupied by it was a defendants. The court charged place for religious worship and that if without fault or neglipurposes connected therewith, for gence on the part of the tenant the the term of three years from May rooms were untenantable and unfit 1, 1873, at the rent of $400 for the for occupancy they were justified first year, and $500 for each of the in leaving, and would not be bound next two years, in equal monthly thereafter to pay rent.” payments, subject, however, to

M. M. Waters, for applts. the provision that, “in case the tenant shall abandon the premises

William G. Tracy, for respts. at any time, the rent then due or Held, No error; that the stiputo become due on this lease shall lation in the lease, which makes be in reality due and collectible." the whole rent at once dne and Defendants guaranteed the pay- collectible in case the tenant abanment of the rent as it became due. dons the premises, does not show The tenants paid the rent up to an intention on the part of the Nov. 1, 1874, but soon after they lessee to waive the advantage abandoned the premises because given by the written law. Chap. by a flow of water from other 345, Laws of 1860. The statute parts of the building owned by the works discharge from liability and lessor, and under his control, it can be obviated only by a clear they became untenantable and not and express agreement.

neous.

The written assignment of the INSOLVENT INSURANCE claim for damages was lost, but COMPANIES. DISTRIBUTION. its execution was not controverted,

N.Y. COURT OF APPEALS. and the circumstances attending it, as well as the testimony of wit

Reese, respt., v. Boese, applt. nesses, permit no other inference than that its delivery was before

Decided Nov. 20, 1883. the suit was actually brought. On an application by rival receivers of a Held, That this was sufficient to foreign corporation to share in the distribu

tion of an insurance deposit fund no finding defeat a recovery for rent other

was made as to their conflicting claims, wise due, and, if the facts found

but the report and judgments were adverse established injury for which the to appellant's claim to represent the comlessor was responsible, furnished pany and to the right of the company to

share in the distribution. Held, That apcause for an affirmative judgment

pellant to succeed must show affirmatively against the landlord.

from facts appearing in the record that the Also held, That plaintiffs might conclusions of the court below were errohave been held liable for a breach of covenant for quiet enjoyment, It appeared that the fund fell short of satisfying

claims having a preference over those of apwhich the law implies in such a

pellant, and there was no finding that his case, 90 N. Y., 293, or for failing

company was the owner or holder of the to keep his promise after notice policies in question or entitled to distributo remove the cause of damage.

sion therein. Held, that there was a failure

to show that the company was entitled to It was assumed that if the evi.

share in the distribution of the fund. dence justified a finding that injury was caused to the tenant by

This action was bronght by a the lessor's acts or negligence, and policy holder of the Nat. L. Ins. the claim for damages so occurring Co. of N. Y., to procure the disbefore suit, the defendants might tribution of the fund deposited by have the benefit of it. No objec- it with the superintendent of the tion was made that liability so in insurance department upon its orcurred was not the proper subject ganization for the security of its of a counterclaim.

policy holders. The Am. Nat. L. Held, That it was too late to . & T. Co. of Connecticut claims a raise this objection now. 51 N. Y. share in such fund by virtue of 93; 56 id., 194.

certain policies, issued by the Nat. Judgment of General Term, af. L. Ins. Co. to various persons, firming judgment on verdict for which it now holds. The Connectdefendants, affirmed.

icut Co, appears by R. & B., rival Opinion by Danforth, J. All receivers, each claiming to be enconcur, except Ruger, Ch. J., titled to receive such distributive taking no part.

share as may be found to belong to it. R. was appointed in September, 1878, in a suit instituted by the Connecticut Co. in the Superior Court of that state to wind up and dissolve the Co. and ence over those of the appellant. distribute its assets among its There is no finding of fact ihat the creditors. B. was appointed in Connecticut Co. was the owner or December, 1878, by the Supreme holder of the policies in question, Court of this state in supplemen or entitled to distribution theretary proceedings instituted upon in. a judgment recovered against the Held, That appellant has failed Connecticut Co. by a resident of to establish a right in the Connect. this State. No finding was made icut Co, to share in the distribution by the referee with respect to the of the fund in question. conflicting claims of the receivers.

Judgment of General Term, afThe referee's report and the judg. firming judgment of Special Terni ment of the Special and General against defendant, affirmed. Terms were adverse to the claim of

Opinion by Ruger, Ch. J. All B. to represent the Co. and to the

concur. right of the Co. to share in the dis tribution of the fund.

N. Y. CITY. REMOVAL. Geo. N. Sanders, for applt.

N. Y. COURT OF APPEALS.
Wm. H. Ingersoll and Raphael
J. Moses, Jr., for respt.

The People ex

rel. Keech, Held, That the appellant to suc-applt., v. Thompson, Comr. of ceed must show affirmatively from Public Works, respt. facts appearing in the record that

Decided Jan. 15, 1884. the conclusions reached by the court below as to his claim were

A letter written by the head of a department

to the head of a bureau proposing to reerroneous. 21 N. Y., 547; 22 id.

move him for dereliction of duty, stating 323; 26 id., 82.

the facts out of which such a cause is The Special Term held that R. alleged to have arisen, and which, if true, alone was entitled to represent the

are sufficient to authorize his removal, and Connecticut Co. and receive the

designating a time and place for explana

tion, is sufficient to answer the require. interest in the fund which might

ments of $ 28 of the Charter of 1873. It is be awarded to it. The evidence not necessary that the cause for removal in the case is not brought before

should be established by proof taken be.

fore the superior officer ; it is sufficient that the court by the record, and it does

cause is assigned and an opportunity for not affirmatively appear that no explanation afforded, and after that the evidence was given which would question of removal rests in the discretion support the legal conclusions made of the superior officer.

Affirming S. C., 13 W. Dig., 538. by the court below.

Held, That this court must pre. K., the relator, was removed by sume in support of the judgment the Commissioner of Public that such evidence was in fact Works, in the City of New York, given.

from the office of Superintendent It appeared that the funds to be of Repairs and Supplies in the distributed fall far short of satis-Department of Public Works. fying the claims having a prefer- / The record shows that a communi.

cation was served on K., April 13, DeB. Wilmot, for applt. 1881, signed by the commissioner, D. J. Dean, for respt. which stated the charges against Held, That the charges as made him and the facts out of which were sufficient to answer the purthey arose, and notified him that pose intended and were within the he would be allowed an opportu. requirements of the statute under nity at the commissioner's office, which the proceeding was had. It on the 14th, at 12 o'clock, to make was not necessary that the pro. an explanation as to the matters ceedings should be conducted with specified, and unless the explana- the same degree of exactness as a tion was satisfactory he would be trial for a criminal offence in an removed from his office. If the facts ordinary tribunal of justice. Laws alleged were true, they showed a 1873, chap. 335, $ 28; 72 N. Y., failure of K. to perform his duty, 445. It was not necessary that and such neglect as would have the cause for removal shonld be authorized his removal if no satis-established by proof taken before factory explanation was made. K. the commissioner; it is enough appeared at the time and place that he assigns a sufficient cause named in the notice in person and for the removal and furnishes an by counsel, and submitted a state opportunity to the accused for exment or explanation in writing, in planation of the same, and the which, after stating that he would matter of removal is then left in be ready at any time and place to the discretion of the commissioner. controvert or explain the charges 73 N. Y., 440.

73 N. Y., 440. In cases where the made if legal evidence was pro- Legislature intended that the reduced to sustain the same and an moval should not be made without opportunity be given to explain or cause proven, provision is made disprove them, he took issue on for the preferring of charges and some of the allegations, explained an examination of the same. Laws others, and then claimed that the 1873, chap. 335, SS 41, 77. charges should be reduced to People ex rel. Sims v. Bd. Fire writing and specifically preferred Comrs., 73 N. Y., 440; People and he be allowed to answer and ex rel. Munday v. Bd. Fire Comrs., produce evidence to controvert 72 N. Y., 445; People ex rel.

. them, and that he be allowed Campbell v. Campbell, 82 N. Y., counsel. The commissioner signi- 247 ; People ex rel. Nichols v. fied his willingness to receive any Mayor, 79 N. Y., 588, distinfurther statement or explanation guished. at that time, saying that the state- Order of General Term, denying ment made was entirely unsatis- an application for a reversal of the factory, and he refused to give K. order removing relator, affirmed. any further opportunity to answer Opinion by Miller, J. All conthe charges. On the next day the cur. commissioner notified K. in writing of his removal from office.

Vol. 18.-No. 14a.

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