which no salary was attached and to which none was fixed. He serves one year, and neither makes demand for salary nor receives any, nor is a salary fixed, and notwithstanding he continues to permit himself to be elected a second year, accepting the office, and to be so elected three several consecutive times thereafter under similar conditions. The natural inference from these circumstances is that no compensation was expected and none impliedly promised. His employment with the financial agents of the corporation may account for his willingness to accept the office without compensation, but at all events it is quite clear that he did so accept it, whatever may have been his rea son. Judgment reversed and new trial ordered, costs to abide event. Opinion by Pratt, J.; Barnard, P. J. and Dykman, J., concur. LIMITATIONS. EXECUTORS. N. Y. SUPREME COURT. GENERAL legatee and devisee. Deceased and appellant had been partners. and plaintiff took possession of her husband's estate after his death. The referee reported that from Nov. 1, 1866, to the commencement of suit, June 16, 1877, appellant as plaintiff's agent received to plaintiff's use and borrowed from her divers sums of money at different times and places, belonging to her, and amounting to $10,000 and over; and that during that period appellant laid out for plaintiff's use moneys which, with some real estate transferred by appellant amounting to more than $6,000, was applied toward liquidating plaintiff's demand; and that he performed services for her during the same period, worth $800. The referee ordered judgment for plaintiff for $2,707, and interest. S. N. Dada, for applt. F. A. Lyman, for respt. Held, That the amount due to plaintiff, over and above all counterclaims, as found by the referee, is established by the evidence. The testimony does not conclu. sively establish appellant's claim that, at different times, the parties Maria Eno, respt., v. Rufus Die- settled their dealings in full. fendorf, impld., applt. Decided Jan., 1884. Where some items on each side of a mutual account accrued within six years prior to commencement of suit thereon, the statute of limitations is no bar. It is doubtful whether the statute of limitations is pleaded so as to be available to defendant. Moreover, as the case is one of mu tual accounts, and as some items on each side accrued within six years. next preceding commencement of Appeal from judgment on refe- suit, plaintiff's claim is not within ree's report. the statute. The complaint demands an accounting. Plaintiff's husband died in 1866, leaving her his sole If any part of the moneys for which the referee finds defendant indebted to plaintiff belonged to her husband's estate, yet she was sole legatee and devisee, and also sole executrix. She took possession of the estate and defendant recognized her as the owner of it, and dealt with her as such. It is not shown that there are any creditors of the estate; if there are any she will be liable to them as executrix for the assets that come into her hands. Judgment affirmed, with costs. Opinion by Smith, P. J.; Hardin and Barker, JJ., concur. NEGLIGENCE. NONSUIT. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Joseph P. Taft, respt., v. The City of Troy, applt. Decided Jan., 1884. A nonsuit in actions for negligence is rarely proper either for absence of negligence on the part of defendant or for contributory negligence on the part of plaintiff. The absence of rubbers or other safeguards against icy walks is not such a want of ordinary care as will prevent a recovery. Appeal from judgment upon verdict for plaintiff. The action was brought for injuries sustained by plaintiff's falling upon the sidewalk in the city of Troy. There was snow and ice upon the sidewalk. According to some of the evidence it was in lumps, ridges and jumps made by the boys in and for sliding upon it so that it became exceedingly slippery. The evidence tended to show that it had been in that condition for at least ten days and perhaps much longer. Merritt & Ryan, for respt. Held, That the case of Todd v. City of Troy, 61 N. Y., 506, is an authority which sustains this judgment. It is carrying the doctrine of mu nicipal responsibility to an extreme limit. But a nonsuit in such cases is rarely proper either for absence of negligence on the part of defendant or for contributory negli gence on part of plaintiff. 80 N. Y., 622; 79 N. Y., 464; 83 N. Y., 572. The absence of rubbers or other safeguards against icy walks is not such an imprudence or want of ordinary care as will prevent a recovery. 61 N. Y., 610. Judgment affirmed, with costs. Opinion by by Boardman, J.; Learned, P. J., and Potter, J., thereto of W. The testator by his will gave and devised a portion of his residuary estate, consisting of real and personal property, to his executors, in trust, to receive and apply the income thereof to the use of B., plaintiff, his great granddaughter, then an infant, during her life, and after her death to pay and transfer the principal to her children, and if she died without leaving any child then to other persons mentioned. By a codicil W. directed that so much of the income of the share thus put in trust for the benefit of B. as should not be needed in the judgment of his executors for her support should be retained and invested by them during her minority, and any accumulation of income should be treated and dealt with as part and parcel of the principal of such share. The will and codicil were admitted to probate and the executors qualified and took upon themselves the trust. It turned out that the income was more than in the judgment of the executors was needed for B.'s support. She claims that the direction for the accumulation of such income is invalid. Frederick H. Man, for applt. Henry W. De Forest, for respts. Held, That plaintiff is entitled to a judgment declaring the direction to accumulate contained in codicil is void and she is entitled to the whole income of the share put in trust for her. 92 N. Y., 508. Judgment of General Term, reversing judgment holding that the direction for the accumulation was. invalid only so far as it provided for adding it to the principal, modified, and the direction for the accumulation held to be void. Opinion by Earl, J. All con cur. DOWER. N. Y. COURT OF APPEALS. In re distribution of surplus moneys arising on sale of real estate of Zahrt, deceased. Decided Feb. 8, 1884. Testator by his will gave to his wife the use of all his property during her life on condition that she should keep the property insured, pay all taxes and assessments and keep the property in good repair, and on her death gave said property to his children. Held, That the provision made for the widow was so repugnant to a claim for dower that they could not stand together and that the widow having entered and possessed under the devise for more than one year was not entitled to dower. Except in the case of dower under sub. 3, § 2793 of the Code, a widow is not absolutely entitled under Rule 71 to a gross sum in lieu of her annuity, but the granting thereof rests in the discretion of the court. The will of Z., after directing the payment of his debts, funeral and testementary expenses, provides: "I give, devise and bequeath to my wife the rents, income, interest, use and occupancy of all my real and personal estate that I may die seized and possessed of, or to which I may be entitled at the time of my de cease, upon the express condition, however, (here follows a condition that his wife should keep the property insured and pay all the taxes and assessments and keep the property in good repair) * ** * * * to have and hold the same to her my said wife for and during the term of her natural life; after the decease of her, my said wife, I give, devise and bequeath all my said real and personal estate to my children, to have and to hold the same to them, my said children, their heirs and assigns forever." A piece of property which belonged to Z., on which there was a mortgage, was sold on a foreclosure of the same, and after paying the judgment and costs, a surplus of $3,658.51 remained. The widow of Z. applied, under § 2799 of the Code of Civ. Pro., for the distribution of the surplus moneys which had been paid into the Surrogate's Court, claiming dower in onethird of the surplus money and asked to have the gross sum, representing the value thereof computed pursuant to § 2793 of the Code of Civ. Pro., paid to her; she also claimed to have a life estate in the remaining two-thirds of such surplus moneys, after payment of certain creditors of the estate, as devisee in the will of Z. and asked to have the gross sum representing the value of such life estate estimated pursuant to Rule 71 of the general rules of practice. It appeared that the widow entered upon the real estate and possessed and enjoyed it under the will for more than one year after the death of her husband. George W. Roderick, for applt. Held, That the widow was not entitled to dower; that all the conditions of the devise to her would be defeated as to so much of the estate as should be set off to her for dower; that this is a case where the intention of the testator cannot be fully carried out if the widow claims dower as well as the provision made by the will. and the latter is so repugnant to the claim of dower that they cannot stand together. The facts proved show that the widow made her election. 1 R. S., 742. Under Rule 71 of the General Rules of Practice, except in the case of dower under sub. 3 of 2793 of the Code, a widow is not absolutely entitled to a gross sum in lieu of her annuity, and whether she shall have it rests in the discretion of the court in view of all the circumstances. Judgment of General Term, affirming decree of Surrogate, affirmed. All con Opinion by Earl J. cur. SUSPENSION OF RIGHTS. N. Y. COURT OF APPEALS. Bowles, respt., v. Habermann, applt. Decided March 4, 1884. Section 707, Penal Code, providing that a sentence of imprisonment to a State Prison for any term less than for life suspends all the civil rights of the party sentenced dur ing such term does not apply to a peniten tiary which is a county institution. After appeal by defendant plaintiff was convicted of a felony and sentenced for ten years imprisonment in the Kings County Penitentiary. Held, That plaintiff's rights were not suspended thereby so as prevent his defending the appeal if defendant proceeds therewith. Plaintiff sued defendant in an action of tort and recovered a verdict upon which judgment was entered. Defendant appealed to the General Term where the judg ment was affirmed and he then appealed to this court. After the appeal to this court plaintiff was convicted of a felony and sentenced to imprisonment in the Kings County Penitentiary for ten years. Defendant now moved that plaintiff's rights in this action be declared suspended and that the hearing of this appeal be stayed during the term of his imprison ment. Geo. H. Fletcher, for motion. Homer A. Nelson, opposed. Held, That the motion should be denied; while it may be that the plaintiff cannot come into court and proceed in his own name and avail himself of the means provided by law for enforcing the judgment he has obtained, yet if defendant proceeds with his appeal he has the right to defend the appeal as he would have to defend an action, and to maintain his judgment if he can; while perhaps he could not move the argument of the appeal, and his rights may be so far suspended that he cannot take any steps in the action or upon the appeal, yet under the provisions of 2 R. S., 15, trustees may be appointed who may defend this appeal and enforce the judgment and collect the money thereon, and after paying plaintiff's debts and their disbursements and commissions, if there is any surplus and no relatives to be supported, the trustees shall hold the Vol. 18.-No. 21. same for him until the term of his imprisonment shall have expired, when they will be bound to account to plaintiff for the same. Section 707 of the Penal Code, which provides that a sentence of imprisonment in a State Prison for any term less than for life for feits all the public offices, and suspends during the term of the sentence, all the civil rights, and all private trusts, authority or powers of, or held by, the person sentenced," being highly penal should not be extended by implication or construction, and it should not be held to apply to a penitentiary which is a county institution. Motion denied. Opinion by Earl, J. cur. CONTRACT. All con N. Y. COURT OF APPEALS. McKenzie et al., respts., V. Decker, applt. Decided Feb. 5., 1884. A contract for building a vault provided half should be paid when the foundation was laid and the balance on completion of the work to defendant's satisfaction. The builder having refused to make a substitution of material claimed by defendant to be necessary according to contract defendant made it himself and charged it to the builder. He made payments after the first half was paid, offered to pay what he conceded to be due and expressed himself satisfied after the work was completed. Held, That as there had been a substantial performance of the contract payment became due on the completion of the work to defendant's satisfaction; that defendant was estopped by his payments and offer to pay from claiming that nothing more than the first half was due, and that plaintiffs were en |