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where controverted and material and corporations in various States, questions of fact are involved it is and J., defendant's testator, was not reviewable.

among the subscribers. The court Harris v. Burdett, 73 N. Y., 136, found that J. subscribed, by audistinguished.

thority and for the benefit of plainAppeal dismissed.

tiff, to the extent of one-half of the Opinion by. Danforth, J. All amount that should be awarded to concur.

him, and by this action plaintiff

seeks to recover from defendants, BANKS. CONTRACT. as J.'s executors, the profits claim

ed to have been made by him upon N. Y. COURT OF APPEALS.

its share of the transaction. PlainThe Nassau Bank, applt., v. tiff is a banking corporation charJones et al., exrs., respts.

tered under the laws of this State. Decided Feb. 26, 1884.

Chapter 260 Laws of 1838.

Samuel Hand, for applt. Defendant's testator subscribed for stock and Martin J. Keogh, for respts. bonds of a foreign railroad corporation by

Held, That this action cannot be authority and for the benefit of plaintiff to the extent of one-half the amount that maintained ; that J. by his subshould be allotted to him. In an action to scription became a stockholder of recover the profits on plaintiff's share, Held, the RR. Co.; that the contract That the action could not be maintained ; under which plaintiff claims was that the contract was ultra vires and contrary to public policy, and that testator executory and was ultra vires and could not be treated as a trustee for plain contrary to public policy. tiff's benefit.

The language employed in the In 1879 the D. & R. G. RR. Co., act under which plaintiff was ina corporation organized to con- corporated defines the powers and struct railroads in Colorado and duties of such corporations, and adjoining territories, to raise money excludes by necessary implication to extend its lines, published a a capacity to carry on any other circular, whereby it proposed to business than that of banking and issue $5,000,000 of its bonds, in the adoption of any other methods sums of $1,000 each, payable thirty for the prosecution of such busiyears after date, with annual in- ness than those specially pointed terest at seven per cent. in gold, out by the statute. 79 N. Y., 440, secured by mortgage upon its 444; Morse on Banking, 5; 7 N.Y., property, and to deliver one of 347; 15 Johns., 383; 71 N. Y., 161. said bonds with five shares of its The establishment of the nacapital stock to every person who tional banking system has not should advance thereon $900, re- altered the policy of the law reserving to the railroad company garding the institutions organized the privilege of withdrawing the under the State system. proposition when $3,000,000 of Also held, That defendant's tessaid loan was subscribed. The tator cannot be treated as a trustee loan was subscribed for by citizens l for the benefit of plaintiff. The law does not raise an implied obli- watchful custody. See 12 R. I., gation to effectuate a purpose 462; 5 N. Y., Leg. Obs., 265. In which is forbidden and which can- the case at bar the question is not be effected by the parties whether the child shall be confided through the agency of an express to the mother or to a nurse. With contract. Perry on Trusts, $ 214. the best disposition the father can

Judgment of General Term, af- not personally render the services firming judgment dismissing com- made necessary by the child's plaint, affirmed.

tender age and feeble health. Opinion by Ruger, Ch. J. All Order reversed and child reconcur, except Rapallo and Earl, manded to the mother. JJ., dissenting .

Opinion by Pratt, J.; Dykman, J., concurs.



N. Y. SUPREME COURT. GENERAL In re petition of Ulrich Maurer.

TERM. SECOND DEPT. Decided Feb., 1884.

Charles D. Kennedy, respt., v.

The N. Y. Life Ins. & Trust Co., In determining as to the custody of children

applt. the interest of the child is the chief consideration.

Decided Feb., 1884. Even where the mother is solely in fault, tho

age, sex or health of the child may make A mere allegation in an affidavit for an order it the duty of the court to leave it in her of publication that defendant is a non-resicustody.

dent affords no ground for assuming that

due diligence las been used. Appeal from order awarding to

An affidavit alleged that defendants could not petitioner the custody of his infant after due diligence be found in the state, son.

they being residents of another state ; that Petitioner claims that where a

the summons had been duly issued for

them, but could not be served personally wife without cause abandons her

on them by reason of such non-residence, husband it is such unlawful con- Held, That no facts were stated which duct as entitles him to the custody

would confer jurisdiction to grant an order of the children as against her.

of publication. Held, That the latest rule is that The summons herein was served the interest of the child is the chief upon some of the defendants by concern of the law and of society, publication. The affidavit on to which the right of parents must which the order of publication was at all times yield. Even where based was as follows: "The said the mother is solely in fault Saralı Hurlburt and others cannot, the tender age, the sex or the after due diligence, be found within feeble health of the child may the state, they being residents of sometimes make it the duty of the Baltimore, in the state of Marycourt to leave the child in her 'land. That the summons herein


was duly issued for said defend- Judgment reversed and new trial ants, but cannot be served person- granted, costs to abide event. ally upon them by reason of such Opinion by Pratt, J.; Barnard, non-residence."

P. J., and Dykman, J., concur. Held, That the order was inauthorized. Merely alleging that a defendant is a non-resident affords

WILLS. EVIDENCE. no grounds for assuming that due N.Y. SUPREME COURT. GENERAL diligence has been used. 85 N. Y.,

TERM. SECOND DEPT. 313. The first part of the affidavit is the equivalent of saying that

Edith E. Kerr, applt., v. James defendants, being residents of Bal. | Bryan et al., respts. timore, cannot be found within the

Decided Feb., 1884, state. It is a conclusion or opinion from the fact that defendants One T. devised certain property to his daugh.

ter. By a codicil he provided that “in were non-residents. Neither does

case of the decease of my daughter," the the bare statement that “ defend.'


devised to her should go to her ants cannot after due diligence be

children. Heu, That the words “in case found” state or imply that any

of the decease" had reference her

death prior to that of testator, and that, effort or attempt has been made

outliving him, she took an estate in fee. to serve within the state.

It in no

When the language used by a testator has a sense is a statement of fact, but is plain meaning, and is neither uncertain, purely the statement of the opin

ambiguous or doubtful, parol evidence to ion of the affiant. The last part

contradict or explain it is inadmissible. is equally deficient of any neces. Appeal from judgment of Spesary statement of fact to confer cial Term in favor of defendants. jurisdiction for granting the order. Defendant Bryan derived title to Stating that “the summons herein the property in question through was duly issued for said defend Anna M. Kerr, who acquired the

does not imply any dili- same under the will of T., her gence to serve it. No fact is father. stated in the affidavit from which The will of T. gave all the resi. the judge to whom it was pre. due of his estate to his daughter sented might infer that an attempt Anna and to her heirs forever. had been made to serve it within By a codicil it was provided that the state. The law requires proof | in case of the decease of my daughthat a defendant cannot be found ter Anna, all that I have devised after due diligence or proof of and bequeathed to her shall go to such a state of facts as to show her children then living, share and that diligence would be of no share alike, to them and their avail in effecting a service within heirs forever." the state. Proof as to where de- Appellant claims that under the fendant actually was at the time codicil Mrs. Kerr took only a life would excuse any effort to serve estate. at another place.

Held, Untenable; that the words Vol. 18.-No. 24b.




in the codicil, “in case of the de

USURY. cease of my daughter" have reference to her death prior to that of N. Y. SUPREME Court. GENERAL

TERM. SECOND DEPT. testator, but ontliving the testator Mrs. Kerr took the estate in Clark P. Tillinghast, respt., v. fee. 52 N. Y., 118; 61 id., 47; 119 Mary E. Pratt et al., applts. Mass., 70; 9 Allen, 516. Testimony was offered as to a

Decided Feb., 1884. conversation between testator and Plaintiff agreed to loan his money to one P., his counsel wlio drew the will, to who employed him at a fixed salary to attend the effect that his intention was to

to his office business, keep books and solicit

business. Held, That the agreement was limit Mrs. Kerr's interest in the

not per se usurious but depended on the inproperty to a life estate. This was

tention of the parties, and that the fact that excluded.

plaintiff did not do as much work as was Held, No error. The intention of

expected threw very little light on such in

tention. the testator must be ascertained there is no rule of law which forbids an emfrom the language of the will, and ployer to borrow from his employee, or when such language has a plain prevents the employee from lending to his meaning, and is neither uncertain, ambiguous or doubtful, parol evi- Appeal from judgment in favor dence to contradict or to explain of plaintiff entered on report of it is inadmissible. 81 N. Y., 569; referee. 61 id., 51; 52 id., 18; 3 Bradf., Action to recover money loaned. 64; 14 Johns., 1.

Defence, usury. To admit such evidence in this Plaintiff desired to loan his case would be to contradict the money to some one with whom he plain meaning of the will. The might obtain employment and so language used has been the fre-advertised. Z. P., who did busiquent subject of consideration by ness in his wife's name, wanted the courts, and must be interpreted some one to do his office business, in the light of the decisions. It is and was also in need of money. not doubtful or uncertain. Its The parties met and after some meaning is clear, and to admit evi- negotiations entered into an agreedence to contradict it would be to ment by which plaintiff loaned his overthrow the clearly expressed in money to Z. P., and Z. P. employtention of the testator.

ed him to attend to the office, keep Judgment affirmed, with costs. the books and solicit business, his

Opinion by Pratt, J.; Barnard, wages being fixed at the same sum P. J., concurs; Dykman, J., dis- that Z. P. drew out for living exsents on the ground that it was penses, viz., $25 per week. Z. P. plainly the intention of testator to testified that the weekly wages cut down his daughter's interest were a mere cover for usury. This to a life estate.

was contradicted by plaintiff, who
says it was a bona fide transaction,
and by one H. Defendants also

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introduced evidence to show that Quackenboss v. Say re, 62 N. Y., plaintiff did very little work and 344, and Knickerbocker Ice Co. v. that a boy could have been hired Nelson, 78 N. Y., 137, distinguishfor a few dollars a week to have ed. rendered the same service.

Judgment affirmed, with costs. The referee found that the agree. Opinion by Pratt, J.; Barnard, ment was made in good faith as a P.J., and Dykman, J., concur. business transaction. Held, No error; that the agree

MANSLAUGHTER. EVI. ment was not per se usurious, but

DENCE. the question of usury depended on the intention of the parties. There N. Y. SUPREME COURT. GENERAL is no rule of law which forbids an

TERM. FOURTI DEPT. employer to borrow from his employee or prevents the employee

The People, respts., v. John from loaning to his master.

McKeon, applt. That while the evidence introdu- Decided Jan., 1884. ced by defendants was competent,

Where the death of another was caused by it threw but little light on the good defendant while he was engaged in the faith of the transaction. Z. P. commission of an assault and battery upon may have been disappointed in the

deceased, the case is within the statutory

definition of manslaughter in the first deextent and value of plaintiff's services; if so he could have discon- Declarations made by attendants for the intinued the arrangement at any

formation of a physician when called to time by a repayment of the money.

attend the deceased as to her symptoms The fact that plaintiff did little

are proper evidence. mechanical work about the office Appeal from judgment of Court was a very sligh circumstance to of Sessions entered upon convicshow the intention of the parties tion of appellant of manslaughter to violate the law when the agree. in the first degree. ment was signed. It was not in- The evidence tended to show tended that he should be a work that defendant, after having reman in the factory. He was to spectfully demanded that de attend to the office business, keep ceased, Eliza Moreland, let him the books and solicit business. He have liquor at her saloon on Sunappears to have been at the office day, and having been refused, every day from eight in the morn- with his fist struck deceased a seing to five in the evening, except vere blow on the breast, and she, when sick. That he did some work being advanced in pregnancy, was in the shop was conceded. He thereby thrown into convulsions solicited and procured some busi- and premature labor and died ness and kept the books in part. about 14 hours after being struck. His actions seem to have been con- The indictment contains two sistent with the honesty of the counts, the first charging that de. agreement.

fendant feloniously assaulted de

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