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could not be produced there, and hence this is a case within § 1861 of the Code. This case does not come within the mischief intended to be guarded against by the statute which requires the subscription to a will to be at the end thereof. 38 Barb., 364.

McGuire v. Keer, 2 Brad., 244, and In re will of O'Neil, 91 N. Y., 516, distinguished.

Judgment of General Term, affirming judgment overruling demurrer, affirmed.

agreeing to erect upon the lot a building to cost and be worth $50,000. B. agreed to loan and advance to S. from time to time. during the progress of the building the sum of $5,000, on presentation by S., if required, of evidence that he had expended an equal sum upon the building. When $25,000 had been fully loaned S. was to give B. a mortgage on his interest in the building to secure the payment thereof in annual payments. If S. erected the building and kept

Opinion by Earl, J. All con- all his covenants, B. agreed to re

cur.

MECHANICS' LIENS.

N. Y. COURT OF APPEALS.

Cornell et al., applts., v. Barney, impld., respt.

Decided Jan. 15, 1884.

Defendant leased certain premises to one S., who agreed to erect a building thereon.

Defendant was to make advances from time

to time up to half the cost thereof and take back a mortgage to secure repayment. Provision was made for renewals and the lease provided that on failure of S. to per

new the lease for a further term of fifteen years at a rent to be agreed upon, and in case they could not agree, then at a rent to be fixed by arbitrators, not less than $4,100 per annum, the rent to be fixed for the lot exclusive of the buildings and improvements thereon. Provision was made for five more similar renewals for rent to be agreed upon or fixed in the same way. During the term S. was to keep the buildings insured for $50,000, and in case of loss the insurance money received was to be used in

form or at the end of the final term the lot repairing or rebuilding. In case

with all buildings was to revert to defendant. S. commenced building, and contracted with plaintiffs for materials, which they furnished. Held, That plaintiffs were not entitled to any lien upon defendants' interest in the premises.

This action was brought to enforce a lien against certain premises in the City of New York. It appeared that in June, 1877, the defendant B. leased to defendant S. said premises for fifteen years from Jan. 1, 1878, at a yearly rent, payable quarterly, of $4,100, besides taxes and assessments-S.

S. failed to renew the lease at the end of any term, or in case he failed to keep the covenants, and also at the end of the final term, the lot with all the buildings thereon was to revert to and become the absolute property of B. The lease was recorded Sept. 19, 1877, and S. took possession and commenced to erect a building thereon. On October 22, 1877, he contracted with plaintiffs to furnish the iron to be used on the building, for which S. was to pay them $8,000.

Plaintiffs furnished iron for which they were to be paid $5,500, and

To

letters testamentary, and they are the proper persons to be notified of the imposition of such tax.

for which they were paid only The Commissioners of Taxes and Assessments $1,500, the first instalment. secure the balance, on December 13th they filed a lien upon the lot and building in the clerk's office, and brought this action to enforce the same.

Samuel Skidmore, for applts. Edward Patterson, for respt. Held, That the plaintiffs were not entitled to have or enforce any lien against the interest of B. in the lot or building thereon, for the reason that the iron was not furnished under any contract with him, or at his instance, and that he did not cause the building to be constructed. 9 Daly, 240; 54 How. Pr., 446; 55 id., 121.

Judgment of General Term, affirming judgment dismissing complaint, affirmed.

Opinion Earl, J. All concur.

EXECUTORS. TAXES.

in the City of New York may tax the ex ecutors of a deceased person on the personal property belonging to the estate and assess the value of such personal property previous to the expiration of the time provided by law for the advertisement for claims against such estate, and, conse quently, before the executors can obtain accurate knowledge of the amount of such personal property subject to taxation, and such valuation will be conclusive in the absence of any evidence furnished to the commissioners by the executors showing that it is excessive.

Certiorari to correct an assess

ment.

One S. died on the 1st day of January, 1883, and, on the 10th of that month his will appointing the relators his executors was admitted to mitted to probate and letters testamentary issued to them. On the 8th day of January the period allowed by law for the assessment of personal property by the Tax Commissioners of New York City expired; and on that

N. Y. SUPREME COURT. GENERAL day a notice was sent by them to

TERM. FIRST DEPT.

The People ex rel. F. R. Coudert et al., exrs, applts., v. The Commissioners of Taxes, &c., of New York, respts.

Decided Dec. 21, 1883.

When the period allowed by law for the assessment of personal property for the purposes of taxation by the Commissioners of Taxes and Assessments of the City of New York expires between the death of a decedent and the issuing of letters testamentary to the persons named as executors in his will, such tax may be imposed upon such persons as executors, although they have not yet qualified as such and received their

the relators notifying them that their personal property as execu tors of S., deceased, was assessed at $200,000. On the 23d of April, 1883, the relators applied to the Tax Commissioners for a correction of the said assessment, claiming that they were not assessable as executors of S. in any amount whatever at the date and for the period to which said assessment referred, for the reason that they were not such executors at the date of the assessment, and were not able to ascertain the amount of taxable personalty belonging to

That, although the assessment was imposed before the period prescribed by law for the advertisement for claims against the estate of the relators' testator had expired, and, consequently, before they could determine the amount of the testator's debts which should be deducted from the value of the personal property for the purposes of taxation, R. S., 991, § 10, 7th ed., it was incumbent upon them to present to the commissioners, before the expiration. of the time allowed by law for the correction of assessments, such evidence of the testator's indebtedness as they could furnish for the purpose of decreasing the assess

the estate for the reason that the time prescribed by law for the advertisement of claims against the estate had not expired. The commissioners refused to make the correction desired, and the relators thereupon commenced these proceedings to compel them to do so. F. R. Coudert, for applts. A. L. Cole, for respts. Held, That the interest of an executor in the estate of his testator is derived from the will itself and vests in him from the time of the testator's death, 60 N. Y., 350; 15 Abb., N. S., 395; 9 Wend.. 302; 2 Hill, 225; 10 Paige, 640; and, though prohibited by statute from disposing of any part of the estate before receiving letters tes-ment, and since they had failed to tamentary, he is not prohibited do so the commissioners were jusfrom taking possession of such tified in refusing to make any reestate for the purposes of its pres- duction. ervation, 16, Art. 1, Title 2, Ch. 6, Part 2, R. S., Vol. 3, p. 2289, 7th ed.; and, therefore, since the relators were the executors named in the will of S., and were, therefore, invested with authority to interfere with the estate so far as to secure its preservation at the time of making the assessment, they were the proper persons to serve with notice as the representatives of the estate of the deceased, and the only persons to whom, under the circumstances, the assessors were bound to have recourse or to regard as connected with the possession or ownership of the property; and their position as the representatives of the estate for the purposes of taxation or assessment cannot be disputed.

Vol. 18-No. 16a.

Action of Tax Commissioners affirmed and writ dismissed.

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

NEGLIGENCE. DAMAGES. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Richard Burke, admr., respt., v. Silas H. Witherbee et al., applts.

Decided Jan., 1884.

The action was for negligence which caused the death of plaintiff's son. Plaintiff was his only next of kin; the son was young and industrious, the father very aged. A verdict of $800 was rendered. Held, Proper, and that plaintiff should not be confined to nominal damages only.

The action was to recover for negligence which caused the death

of plaintiff's son. Plaintiff was

the only next of kin and was one

JURISDICTION. TRUSTEES.

hundred and six years old at the N. Y. SUPREME COURT. GENERAL

time of trial. The son was twen-
ty-seven and unmarried. Plain-
tiff was asked whether the son
contributed to his support. This
was objected to and excluded.
Verdict for plaintiff, $800. De-
fendant claims the damages should
have been only nominal upon the
above facts.

Waldo & Grover, for applt.
Boynton & Conway, for respt.

TERM. THIRD DEPT.

Edmund C. Alger, by guardian, v. Joseph Alger.

Decided Jan., 1884.

Where an action was brought by the heirs of

of a devisee involving the construction of a will and it appeared that the testatrix died in and the property was located in another State and that the defendant was, pursuant to an act of its legislature, under bonds to a court of that State to obey its orders and to make return of his proceedings in regard to the property in question to said court, Held, That the courts of this State would not entertain jurisdiction of the action. It seems, that, in the absence of proof, it will not be presumed that the statute law of another State is the same as our own.

Alice Branch, a resident of Connecticut, died there in 1850, having left a will, admitted to probate in Voluntown, Conn. She owned. real and personal property all in that State.

Held, That the verdict was proper. The deceased was an industrious laborer. It is said that plaintiff had no legal interest in his labor, and that the son was not bound to support his father. But in the case of Ihl v. Forty-second St. RR., 47 N. Y., 317, the child killed was but three years old and could not be said to be of any pecuniary value to its parents. On the contrary it must have been an expense; yet a recovery was sustained. And such a child was not bound to support its parents. See also 37 N. Y., 287. In this present case it is easy to see that to an aged father the death of an industrious son might be a great pecuniary injury. If there was to be anything but a nominal verdict the amount awarded was large. Judgment and order affirmed, trust. No trust was created by

with costs.

not

Opinion by Learned P. J.; Boardman and Potter, JJ., con

cur.

In May, 1854, the General Assembly of that State passed an act appointing defendant (and another now dead) trustees to sell the real estate of the deceased and invest it in certain securities, to hold the same and appropriate it to the same persons and in the same manner as the will devised said real estate; provided the trustees gave a bond to the Probate Court of Voluntown for the faithful performance of this

the will and the object of the act was to change the property from real to personal because some of the beneficiaries were infants and repairs were needed on the realty. The trustees gave the bond and

sold the property. Defendant now resides in this State. This action is brought by an infant son of a devisee to recover a share of the proceeds of the sale made by the trustees and involved the construction of said will. Plaintiff recovered.

Duell & Benedict, for applt.
Waters & Knox, for respt.

Held, Error, and that this court would not entertain jurisdiction of the matter. The surviving trustee is under bonds to the Probate Court of Voluntown to make a return of his proceedings to that court. To that bond this judg ment would be no defence. property was in Connecticut; when sold its avails were there, and there the trustee is bound to account. 20 N. Y., 115; 2 Wend., 470.

The

Further held, That a construction of this will must be governed by the law of Connecticut. We have no proof of that law. It may be that as to the common law we should presume that law to be the same here as in Connecticut; but we doubt whether this presumption can be entertained as to the statute law. Plaintiff's counsel has in his brief argued the ques. tion of cross-remainders and the like from the statutes of New York. We know that the rule in Shelly's case has been abolished here. Can we presume that it has been abolished there? We think the case should not be tried on presumption when there is a proper tribunal to which defendant is accountable elsewhere.

Judgment reversed and new trial granted, costs to abide event. Opinion by Learned, P. J.; Boardman and Potter, JJ., con

cur.

PARTNERSHIP. ASSIGN

MENT.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

George C. Hemmingway, admr., respt., V. Jacob S. Poucher, impld., applt.

Decided Jan., 1884.

A former partner of a dissolved firm has the power in the name of the firm to assign a judgment which it holds; and if another partner subsequently assigns the same judg ment in good faith (the first assignment not being of record), the second assignee will take no title, though he have no constructive or actual notice of the first assignment.

Action against sureties on an undertaking on appeal from a judgment. The judgment was in favor of Cushing & Landers against Lewis, obtained in 1872, although the firm of Cushing & Landers was dissolved in 1864.

Plaintiff claimed that in 1872 Cushing assigned the judgment to one Brooks and that the latter, in 1873, re-assigned it to Cushing. In 1874 Cushing died and these several assignments were found among his papers. Plaintiff is Cushing's administrator. In 1880 Landers assigned this same judg. ment to one Parker and this assignment was recorded. Soon after plaintiff notified Lewis not to pay the judgment to any one but himself. In 1883 and just after this action was commenced (Lewis' ap

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