A motion was made by W. to substitute L. as plaintiff. This motion was denied. the spirit and fair construction of of buildings. On Oct. 1, 1860, the statute. plaintiffs demised to the to the same lessee a piece of land adjoining in the rear the lot described in the lease of May 1, 1880, which was 25 feet and 11 inches wide by 25 feet deep. Held, That the denial of this motion does not affect the question of L.'s liability, as its denial may very well have proceeded on the ground that the practice did not authorize such relief. Order of General Term, affirming order of Special Term charging L. with costs, affirmed. The lease of Oct. 1st shows by its recitals that it was made at the request of the lessee to increase the depth of the lot demised by the first lease, which is particularly referred to. The second lease was made for the same term as the first, and was to cease Opinion by Andrews, J. All when that lease terminated, and Livingston et al., applts., v. not connected with any of the sur By a lease dated May 1, 1860, plaintiff demised to defendant's assignor a lot of land fronting on Fifth avenue, New York city, 25 feet and 11 inches wide by 100 feet deep, for 21 years for $570 per an num. The lease contained covenants for renewals, with the usual provisions for determining by arbitration the rent to be reserved on each renewal, which was to be five per cent. upon the estimated value of the lot at the time of the renewal, without any addition on account . rounding land would be inaccessible from any street or avenue, but as connected with the first described lot forms part of a valuable lot. The two leases being about to expire arbitrators were nominated by the respective parties, pursuant to the covenants in the leases, to appraise the value of the demised premises in order to determine the rents to be reserved on the first renewal of twenty-one years. The same persons were nominated as arbitrators. under each lease. They entered on the performance of their duties and, it being found that they entertained different views as to the method of ascertaining the value of the demised premises, they were about to appoint an umpire when this action was commenced to restrain their action and adjudicate the rights of the parties in respect to the matters as to which the arbitrators disagreed. No fraud or mistake in the leases was shown. The complaint was dismissed. Elbridge T. Gerry, for applts. Samuel. Riker, for respts. Held, No error; that all the arbitrators have to do is to fairly appraise the value of each of the parcels as it stands. The court cannot be called upon to anticipate their action or to assume that they will come to an unjust conclusion, or that the umpire selected would fail to act fairly and impartially on equitable principles and arrive at a correct result. It is not the province of a court of equity to direct arbitrators how they shall consider a case pending before them. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Appeal by plaintiff from order granting motion of defendant that plaintiff file in the office of the County Clerk certain depositions of witnesses taken in proceedings supplementary to execution instituted by plaintiff. The witnesses were examined in the proceeding by virtue of § 2444 of the Code of Civil Procedure, before a justice of the court. The affidavit of plaintiff's attorney in opposition to the motion alleged that the testimony of said witnesses was taken and written out by a stenographer who was paid by plaintiff's said attorney, and after the depositions were duly verified they were taken by said attorney and by him retained. An application was made for a receiver in said proceedings, and from the recitals in the order appointing such receiver it appeared that said order was granted upon Opinion by Rapallo, J. All the testimony of the judgment concur; Finch, J., in result. SUPPLEMENTARY PROCEEDINGS. DEPOSITIONS. N. Y. SUPERIOR COURT. GENERAL TERM. Joseph W. Foster, applt., v. Charles P. Twigg, respt. Decided Feb. 4, 1884. Proceedings supplementary to execution are special proceedings within the intent of $825, Code Civ. Pro., and the depositions of witnesses taken thereon must be filed with the County Clerk though they were not used upon the application for a receiver, and though the testimony was taken down debtor only. The judge below granted defendant's motion that the depositions of the witnesses be filed on the authority of § 2433, Code Civ. Pro., which declares. that such a remedy is a special proceeding, and § 825, which declares that in this city a return or other paper in a special proceeding, where no other disposition is prescribed by law, must be filed in the office of the Clerk of this County. John Brooks Leavitt, for applt. G. M. McKellar, for respt. Held, That the order must be sustained. Appellant's counsel ob and written out by a stenographer paid by jects that the depositions were not papers in the special proceeding plaintiff's attorney. L. by his will gave to his execntors his real and personal property in trust to pay debts and legacies and to construct a burial vault, and "upon the further trust," in substance, to divide the residue into five equal shares and pay the income of one share to each of his five children for life, and on the death of any child to distribute the principal of the share of the one so dying among his grandchildren then living and the issue of any deceased grandchild, such issue taking the share the parent would have taken if living. The testator gave to his wife an annuity of because they were not in fact used on the motion for the appointment of a receiver. They were, how ever, in the proceeding, and while it was pending before the motion was made. Another objection is that appellant has a private right of property in them. It would be difficult to establish this when it is considered that the deposition is taken by the officer before whom the examination is had. It is sufficient to say that whatever the nature of appellant's interest it arose and remained subject to the provision of law that the paper must be filed. Order affirmed, with $10 costs $7,000 for life. On a final acand disbursements. counting, in 1877, his executors Opinion by Sedgwick, Ch. J.; were allowed full commissions. O'Gorman, J., concurs. EXECUTORS. TRUSTEES. N. Y. COURT OF APPEALS. The capital then remaining in the hands of the executors was adjudged to be $1,430,038.01 which the decree directed them to retain and hold "as trustees under the last will and testament of William Laytin et al., respts., v. David- Laytin, deceased." In 1882, after son et al., applts. Decided March 11, 1884. Testator gave his estate to his executors in trust to pay debts and legacies and build a vault and on the further trust to divide the residue into five equal shares and pay the income of one share to each of his children and on the death of any child to divide the principal of said share as directed. On a final accounting the executors were directed to hold the estate in their hands as trustees. Held, That the will contemplated a time when the duties of the executors as such should end and they should act exclusively as trustees; that after payment of the debts and legacies and construction of the vault their duties as trustees commenced and that by the decree on accouuting the executors were discharged and are now entitled to commissions as trustees. Affirming S. C., 17 W. Dig., 18. the death of one of the testator's daughters, the trustees applied to the Surrogate for a judicial settlement of their account. On May 10, 1882, a decree was made settling the account to that time and distributing the one-fifth share of the capital of the estate, which he found amounted to $295,999.10, without taking into account $100,000 of bonds of the city of New York, set apart by the trustees to produce the annuity of the testator's widow, and another item of $4,944, not then in a situation to be divided. It was further adjudged that after making the distribution directed and crediting the payments allowed to the trustees, the capital remaining in their hands was $1,288,940.42. The trustees claimed on this accounting to be allowed one-half commissions on the whole capital of the trust fund and one-half commissions on the one-fifth share of the capital directed to be distributed by the decree. Morgan J. O'Brien, for applts. Albert T. McDonald, for respts. Held, That the will clearly contemplated a period of time when the duties of the executors as such should end and they should assume the character exclusively of trustees for the widow and children of the testator; that after the payment of the debts and the construction of the burial vault the duties as trustees commenced. The reasonable intendment and legal effect of the direction in the decree upon the final accounting in 1877, that they should retain and hold the whole balance of the estate as trustees under the will, was to discharge them as executors, and they were entitled to commissions as trustees. 18 W. Dig., 517. Also held, That the fact that the trustees have not made an actual division of the trust fund into shares as directed by the will does not change the question. The Surrogate has jurisdiction to award commissions to testamentary trustees. 88 N. Y., 121; 18 W. Dig., 517; 5 Redf., 601. Order of General Term, modify ing decree of Surrogate, affirmed. Opinion by Andrews, J. concur. All N. Y. COURT OF APPEALS. Peck, exrx, applt. v. Callaghan, respt. Decided Feb. 26, 1884. Where the evidence on probate of a will was either circumstantial or expert opinions and uncertain, and it appeared that the proponent would have been entitled to all the property if testator had died intestate, the appellate court cannot, in the absence of proof of any motive on proponent's part, reverse the findings of the court below in favor of probate. Specimens of the handwriting of a testator are admissible to enable experts to give their opinions as to the genuineness of the signature to the will by comparison. A judgment roll is competent evidence for or against either of the parties thereto in any subsequent litigation between them involving the same questions. This is an appeal from a judg ment of the General Term, affirming a decree of the surrogate of the county of New York admitting to probate the will of C. The probate was objected to on the grounds that the will had not been executed by C. as and for her last will and testament, and that it was executed under the fear, compulsion or undue influence of her husband, the proponent. It affirmatively appeared that C. at the time of her death was not seized of any real estate, and that, under the statute, the proponent, if C. had died intestate, would have been entitled to all her property. The evidence was either circumstantial, or the opinion of experts as to the genuineness of the signature of the testatrix, and was uncertain and inconclusive. Matthew Hale, for applt. Luther R. Marsh, for respt. Held, That in the absence of proof of any motive on the part of the proponent this court could not upon the evidence reverse the findings of the court below. Upon the hearing the plaintiff objected to the introduction of specimens of the handwriting of C. offered for the purpose of enabling experts to give their opinions as to the genuineness of her signature to the will by comparison therewith. The objection was overruled. Held, No error; that the evidence was proper under chap. 36 of the Laws of 1880. That act was intended to enlarge the rules of evidence and extend the facilities for testing the handwriting of a party, the genuineness of whose signature was disputed, beyond the opportunities then afforded; the character, number and sufficiency of identification of the specimens offered in evidence for the purposes of comparison rest entirely in the discretion of the court. The specimens of handwriting admissible under said act are those of the person purporting to have executed the instrument in controversy. A judgment roll entered in an action in the Supreme Court between the same parties, which involved many of the questions of fact and some of the questions of law arising in this controversy, was received in evidence under objection. Held, No error; that the judgment roll was competent either for or against either of the parties thereto in any subsequent litigation. An appeal will not lie from an order of General Term granting a new trial in a case tried by a jury where controverted and material questions of fact are involved. Upon the trial of the above entitled action a nonsuit was denied. and the case was submitted to the jury as one in which a verdict might be had according to the estimation of the jury of certain facts in evidence. They decided in favor of the plaintiff. A motion was then made for a new trial upon the judge's minutes, and it being denied, the defendant, after judg ment, appealed both from the order and the judgment to the General Term, where a new trial was ordered. James W. Cairns, for applt. H. H. Anderson, for respt. Held, That no appeal lies to this court. 46 N. Y., 409, 564; 47 id., 507; 73 id., 136; 81 id., 645. Although both parties desire otherwise the appeal must be dismissed. The evidence was not wholly in plaintiff's favor, and at the trial defendant insisted that no case had been made out and that a nonsuit should have been granted. Held, That the case being one |