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as assignee of five others, brought suit in the Marine Court to recover damages to the property of plaintiff and his assignors, caused by an explosion of blasting cartridges of dynamite. Defendant, who was the contractor for blasting certain rocks, had the explosive on hand to do his work. From some unknown cause a number of the cartridges exploded, and in consequence the windows in the neighboring houses were shattered and broken. In this way the property of plaintiff and his assignors was injured.

The evidence shows that the explosive power of the article is excessively great, and necessitates the greatest care in its handling by those who employ it. The cartridges had been thawed out previous to use and had been placed upon the sidewalk, and they were allowed to remain there with no one apparently taking any charge of them, upon the public highway, while the workmen of defendant were preparing the holes in which they were to be used. Without any cause, so far as the evidence shows, they exploded. Defendant claims that, having proven that it was impossible under the circumstances under which these cartridges were lying upon the walk that they should explode, he is absolved himself from any charge of negligence.

The court denied a motion to dismiss the complaint, and the jury found a verdict in favor of plaintiff for $291.19, and the judgment entered on this verdict having been affirmed by the General Term

Vol. 18.-No. 6b.

of that court the plaintiff appealed to this court.

E. P Wilder, for applt.
J. P. Reed, Jr., for respt.

Held, That the fact that these cartridges did explode proves conclusively that they must have been subjected to some conditions which would cause an explosion; that it was negligence for defendant's workmen in this case to allow them to remain upon the sidewalk unwatched, uncared for and liable to be disturbed by any passer-by, with no workmen apparently paying any attention to them. Where so dangerous a compound is being employed by any person, some care ought to be used for the purpose of seeing that it is not interfered with and that no accident should or could occur.

It cannot be said, where a dangerous explosive compound is being used by a person upon his own premises, that he has a right to leave it upon the public sidewalk unguarded, uncared for by anybody who would prevent interference with it; and it is doubtful whether the defendant in this action had any right whatever to allow this explosive compound to remain upon the public sidewalk for the purpose of his convenience. It might well be said, in any event, he was bound to keep it upon his own premises, and in using the public streets as a place of storage, even temporarily, he was guilty of negligence. It is claimed to be established upon the part of defendant that this article was not interfered with and that it could not possibly explode, but the evidence

By the terms of the lease the tenancy was not to begin until the 1st of June; the rent to be paid.

in the case shows that it did explode and shows also that no such care as a prudent person would exercise in protecting these cartrid-monthly, in advance, during the ges while they lay upon the sidewalk was exercised, and while it is not known what may have caused the explosion, yet it is but a fair inference that if proper care and watchfulness had been used upon the part of defendant's servants in reference to these cartridges the explosion would never have taken place.

Judgment affirmed, with costs. Opinion by Van Brunt, J.; Daly, Ch, J., and Beach, J., con

cur.

LEASE. DELIVERY.

term, which was for a year and eleven months. The parties met on the 12th of May at the office of the agent who had been entrusted by plaintiff with the letting of the premises. The leases, which were prepared in duplicate, were read by both parties and signed by them. The agent testified that at the time of signing the leases there was a mutual understanding that the lease was not to be delivered until the money was paid; that is, the monthly rent for June. On the following morning, one of the defendants, David H. Starin, called and asked the

N. Y. COMMON PLEAS. GENERAL agent's partner, Bruner, for the

TERM.

Marie A Witthaus, applt., v. David H. Starin, impld., respt.

Decided June 25, 1883.

Where the proposed landlord and tenant

signed a lease in duplicate, tenancy beginning on the evening of 1st of June, rent payable monthly in advance, and the leases were left with plaintiff's agent under a mutual understanding that they were not to be delivered until payment of the June instalment, and upon defendant's calling for it next day he was told that until such instalment was paid he could not have the lease, whereupon he stated that plaintiff might keep the lease and property, Held, in an action for rent thereon, that no recovery could be had, as there had been no delivery to and acceptance of the lease by

defendant.

lease, saying that he wished to take it down town, to submit it to his attorney, but Bruner refused to give it to him until he paid the rent for June, and Starin answered that unless he could have the

lease and submit it to his lawyer he did not think he would take the place; and Bruner replied that his partner, Baer, would be in about four or five o'clock in the afternoon, to which the other answered that he would come back at five o'clock. He did so, and Bruner said, You cannot have your lease until you pay your money." Upon which Starin answeredThen I will have nothing to do with your people. You can keep

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Appeal from judgment dismiss- your lease and your property.”

ing complaint.

The action was to recover rent under a written lease.

Burrill, Zabriskie & Burrill, for applt.

Peter Cantine, for respt.

Held, That on the above state of facts the judge upon the trial was right in holding that there was no delivery and acceptance of the lease by defendants; and that they were not bound by it, for a lease takes effect from the delivery, 1 Platt on Leases, 150; Taylor's Landlord and Tenant, 177, and there can be no delivery without an acceptance, express or implied. 12 Johns., 418.

Judgment affirmed.

the defendant John Fowler (his only child) and to Walter Jones "in trust for my son John Fowler for his support and that of his family, with power to said trustees to sell said property or any part thereof at any time and convey the same in fee.” The trustees took possession, but John Fowler the actual control. In 1869 he bought of parties named Chollar and Wheadon the land on which the mortgage in suit is. He was

Opinion by C. P. Daly, Ch. J.; then insolvent and the court found. Beach, J., concurs.

WILLS. TRUSTS.

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

Frederick W. Crandall, appl., v. Mary Fowler et al., respts.

Decided Nov., 1883.

G. F. by his will bequeathed the residuum of his estate to his only child J. F. and to W. J. "in trust for his son J. F. for his support and that of his family." He made no disposition of the remainder after the trust estate. It seems, That such a trust is valid

and is one for the benefit of J. F. and his family for the life of J. F. Upon the death of G. F. the remainder, subject to the life trust estate, vested at once in J. F. and could be disposed of by him.

This is an action to foreclose a mortgage given in October, 1878, by John Fowler to one Hathaway and by him assigned to plaintiff. The mortgagor died in October, 1879, and left a widow, defendant Mary Fowler, and an only child, George V. Fowler. They defend. It appeared that in 1867 one George Fowler died and by his will bequeathed his residuary estate to

that the purchase money belonged to the trust. The mortgage to Hathaway was given for an old individual debt and the court found that Hathaway then knew that equitably the fee belonged to the trust estate. In January, 1879, Fowler was induced by his cotrustee Jones to deed the premises in question to him "to be held by the said John Fowler and Walter Jones according to the provisions of the last will and testament of George Fowler, deceased." The court found that Mary Fowler and George V. Fowler, as heirs-at-law of George Fowler, were entitled to the possession of the premises as against plaintiff's mortgage.

Turner & Van Duzer and J. J. McGuire, for applt.

Franklin Pierce, for respts.

Held, Error. The trust is intended to be created under 1 R. S. m. p. 729, § 55, subd. 3, and while it does not in strict language express the right to receive rents and profits and apply them to the use of the family, this may be admitted to be the reasonable meaning. Its duration, however, is only for the

life of John Fowler, and for that period for the benefit of himself and his family. 20 Barb., 639. The will of George Fowler did not dispose of the remainder after the trust estate should cease. Assuming then that the trust was valid for the life of John Fowler the remainder after his life estate descended to the heirs of George Fowler as a legal estate, being property undevised and undispos ed of. 1 R. S., 730, § 62. The trustees had no longer any estate. 1 R. S., 730, § 67; 46 N. Y., 169; 66 N. Y., 169. The heir-at-law was John Fowler, the mortgagor. The remainder, on the death of George, vested in him and he could dispose of it subject to the trust life estate. So that if the land was purchased by him with assets of the trust estate, that estate ceased with his death. And Mary Fowler and George V. Fowler are not heirs of George; because when George died John was living and was the heir.

Judgment reversed; new trial granted, costs to abide event.

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

cur.

PARTIES. PRACTICE.

N. Y. COURT OF APPEALS. Hagerty et al., applls., v. Andrews et al., respts.

Decided Dec. 4, 1883

The question whether a person has been properly made a party to an action cannot be raised on a motion to strike out the allegations in the complaint referring to his interest in such action.

The power given to a court to expunge matter from a pleading on a motion for irrelevancy refers to such matter as is irrelevant to the cause of action or defense attempted to be stated against the moving party, and does not enable a party to strike out allegations relating to himself, because they are irrelevant to an alleged course of action against some other party.

This was an action for the partition of lands. The complaint alleged that defendants A. & H. respectively claimed a lien upon said premises, under certain certificates of sales for taxes. The complaint alleged that plaintiffs are ignorant of the validity of said claims, and demanded that the liens of the defendants be ascertained. The defendants N. and wife answered, alleging the liens of A. & H. to be null and void. A copy of this answer was served on the attorneys of A. & H. A motion was made by A. & H. to strike out all the allegations of the complaint relating to the certificates of sales, and also to strike out all the allegations in the answer of N. and wife relating to the same, upon the grounds that all said allegations were irrelevant, said certificates not being liens upon or constituting an interest în the land, and the validity thereof not triable in an action of partition. The motion was granted.

John T. Barnard, for applts. John Andrews, for respts. Held, Error. The question whether a person has been properly made a party defendant in an action cannot be raised upon a motion to strike out the allegations in the complaint referring to his interest in such action. The Code

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tions as to the sufficiency of a pleading in stating a cause of action or defense against a party, or as to his liability upon a given state of facts, can be properly raised only by demurrer. When the pleading contains the semblance of a cause of action or defense, its sufficiency cannot be determined upon a motion to strike it out as irrelevant or redundant, 85 N. Y., 621. The power given to a court to expunge matter from a pleading upon motion for irrelevancy refers to such matter as is irrelevant to the cause of action or defense attempted to be stated in the pleading against the party moving to expunge, and does not enable a party to strike out allegations relating to himself, because they are irrelevant to an alleged cause of action against some other party.

tract for such principal only, cannot be held personally liable upon the covenants in such contract.

Plaintiff leased certain premises to a company, the lease running, defendants and others as directors, &c. It was signed by defendants in their individual names and given to one K. with instructions to get the signature of the other parties and then deliver it to the town clerk. Held, That until this condition was performed the lease was incomplete.

Reversing S. C, 13 W. Dig., 139.

This was an action to recover the

rent of certain premises under a lease, and it was sought to hold the defendant responsible individnally therefor. The lease in question purported to be a contract between plaintiff and thirteen individuals named therein, among whom where the defendants, describing themselves as "president, vice-president, secretary, treasurer and directors and board of managers" of the G. Ag. & F. Club, as the party of the first part. The parties of the second part as such officers covenanted on behalf of "themselves and their successors in office" to pay the party of the first part the annual rent of the premises demised. The instru

Order of General Term, affirming order of Special Term granting motion, reversed. Opinion by Ruger, Ch. J. All ment is under seal, and signed by concur.

CONTRACT. PARTIES. LEASE.

N. Y. COURT OF APPEALS.

the defendants in their individual names, without the addition of their official title. It contained no personal promise or covenant on the part of defendants. The evidence showed a ratification of

Whitford, respt., v. Laidler et the contract as the contract of the al., applis.

Decided Nov. 20, 1883.

In the absence of a personal promise or covenant, one signing a contract who therein represents himself to be the agent of a disclosed principal and who assumes to con

corporation. It took possession and occupied the premises for four years under the lease, and upon demand by plaintiff to its treasurer paid the rent for three years. No corporate seal was attached to the

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