Decided Oct. 23, 1883. A voluntary payment of a portion of an assessment will deprive the party so paying of the right to complain, except to the extent of the remaining lien of the assess ment. It was conceded that the assessment complained of was invalid. and should be vacated as a lien upon the petitioner's property, unless a voluntary payment by him of one-third of the amount precludes him from relief as to that amount. D. J. Dean, for applt. P. A. Hargous, for respt. Held, That the petitioner, by his voluntary payment of onethird of the assessment, lost the right to complain except to the extent of the remaining lien of the assessment, as to that extent only was the invalid assessment an injury. CONSTABLES. BOND. N. Y. COURT OF APPEALS. The People ex rel. Comstock, respt., v. Lucas et al., applts. Decided Oct. 26, 1883. A constable's bond drawn according to the Revised Statutes, but which does not contain the conditions required by the act of 1872, is not an indemnity against all his possible official delinquencies, but has a specific and limited purpose. An action cannot be maintained on such a bond for a levy and sale of property of a party other than the execution debtor. Reversing S. C., 13 W. Dig., 432. This action was brought upon a bond executed by defendant L. on his appointment as constable of the town of Oyster Bay, and was executed by him with the other defendants as sureties. The obligors jointly and severally promised to "pay to each and every person who may be entitled thereto all such sums of money as the said constable may become liable to pay on account of any execution which shall be delivered to him for collection." The bond was in the form required by the Revised Statutes, 1 R. S., 346, § 21, but and upon the sale made under the judgment she became the purchaser and took the deed. Held, That this vested in her the entire interest and estate of the mortgagor and mortgagee as it existed at the date of the mortgage unaffected by subsequent incumbrances and relieved the land from the easement reserved in the deed to her husband. Reversing S. C., 13 W. Dig., 397. This action was brought to restrain the continuance of certain erections on premises belonging to the defendant R. M., and which adjoined plaintiff's premises on the south. the south. It appeared that on Feb. 12, 1859, plaintiff's trustees entered into an agreement under seal with the defendant J. M. for the sale of the premises now be longing to defendant R. M. That agreement provided that the use of light from all openings on the north side of said lot should be reserved for plaintiff's use, and on March 3, 1859, plaintiff conveyed the lot to J. M., subject to a All mortgage to one B. the payment of which had been assumed by plaintiff on the transfer of the lot to it. J. M. assumed payment of the B. mortgage. On May 9, 1863, for the purpose of effecting a gift of the lot to his wife, defendant R. M., J. M. conveyed it to one C., Judgment of General Term, affirming judgment for plaintiff, reversed. Opinion by Andrews, J. concur. EASEMENT. N. Y. COURT OF APPEALS. The Rector &c. of Christ P. E. Ch., respt., v. Mack et al., impl'd, who reconveyed to R. M. Neither applts. Decided Oct. 23, 1883. Plaintiff sold certain land to defendant J., under an agreement that the use of light from all openings on one side should be reserved for the use of plaintiff. Defendant J. conveyed the land through a third party to defendant R., his wife, whereupon the latter procured a mortgage previously existing upon the property, which had been assumed by defendant J., to be foreclosed, of these deeds contained any covenants on the part of the grantors nor any reference to the covenants in the contract and deed thereunder from plaintiff to J. M. R. M. did not assume payment of the B. mortgage, and the deed to her simply provided that the grant was subject to that mortgage. On June 3, 1864, an action to foreclose Opinion by Finch, J. All con cur. the B. mortgage was commenced | for defendants, reversed and judgat defendant's request, plaintiff ment of Special Term affirmed. being made a party thereto. Under the decree of foreclosure and sale the property was on September 22, 1864, sold to defendant R. M. and a deed executed by the referee. without reservation, restriction or condition. R. M. has put up the N. erections complained of, which are of such a character as to constitute NEGLIGENCE. MASTER AND SERVANT. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. William Barnett, appll., Decided Sept., 1883. V. a breach of the covenants in the James M. Taylor, respt. Plaintiff, while descending on his employer's Judgment of General Term, reversing judgment of Special Term Appellant had been an employee of defendant's manufactory for several years, where three elevators were used to raise and lower wares. These elevators were not shown to have been defective in construction, but, on the contrary, were approved and good elevators which plaintiff assumed to use from time to time each day for a year and a half before the accident. The elevators had certain appliances attached which were intended by the makers as additional safeguards in case of the breaking of the suspending rope. Plaintiff put a barrel on the elevator at the fourth floor and then got on himself, pulled the rope for descending, went down to the second floor, stopped, set the barrel off, started down again, and when at or near EXECUTION. EXEMPTION. WAIVER. the first floor he discovered an ob. N. Y. SUPREME COURT. GENERAL stacle-a sliver"--which was on the floor and projecting over so that it would stop the elevator. Plaintiff allowed the elevator to be stopped by the obstacle, without at first pulling the check, and allowed the machinery to move on, thus making a large amount of slack rope before he pulled the check. He then, instead of reversing the motion and taking up the slack rope and raising the elevator enough to permit the obstruction to be removed, called for a shovel and worked at the obstruction with it until the elevator fell to the floor some eight feet, causing the injury. Morris & Pearsall, for applt. Sheldon & Brown, for respt. Held, That plaintiff's act was clearly negligent, inasmuch as he should have stopped the elevator the moment it struck the obstacle, or have reversed it and removed the hindrance. That plaintiff's claim that the safety appliances were out of order, by reason of rust and want of oiling, and that therefore defendant is liable cannot obtain. That if such neglect existed it was quite as much the duty of plaintiff, who was using the elevator, or of some of his fellow workmen as of the defendant to attend to the matter. 85 N. Y., 74; 81 N. Y., 52; Wood on Mast. & Servt., 438. Judgment affirmed, with costs. Opinion by Pratt. J.; Barnard, P. J., and Dykman, J.. concur. TERM. FOURTH DEPT. Martin Russell, applt., v. Orville Dean, respt. Decided, June, 1883. Where plaintiff's team was sold under an execution against him, in the absence of proof that plaintiff had no other property covered by the $250 exemption, his omission to claim that the team was exempt was a waiver of the exemption. Moreover, any article exempt by the act of 1842 was liable to levy to satisfy a judgment recovered for the price of property of plaintiff which was of the class exempt by said act. Appeal from judgment on referee's report. Replevin for a span of mules. Defendant justified as bailee of one Ostrander, who purchased the mules at a sale under an execution against plaintiff. Plaintiff claimed that the mules were exempt from levy and that no title passed by the execution sale. The mules were used by plaintiff as a team in his business; he had no other team; and they were necessary to him in his business; but it does not appear what other property plaintiff had at the time of the levy. Plaintiff made no claim to the constable when the mules were taken, or at any other time, that they were exempt, and he did not at any time make such claim to defendant, but before suit he demanded the mules of defendant, who refused to give them up. The referee held that defendant was entitled to judgment. Howe & Rice, for applt. C. W. Avery, for respt. Held, Section 1391, Code Civ. Pro., is substantially like the statute which preceded it, Laws of Opinion by Smith, P. J.; Hardin and Barker, JJ., concur. EXECUTORS. FEES. 1842, Chap. 157, as amended by N. Y. SUPREME COURT. GENERAL Chap. 782, Laws of 1866, so far as this question is concerned. It not having appeared, either that plaintiff had not other property exempt under § 1391 of the Code of Civil Procedure, of the value of $250, or that he at any time claimed the property in question to be exempt, such property must be deemed to have been in fact liable to execution. Assuming that he had other property which was exempt under § 1391, he waived his claim to the statutory provision in his favor, in respect to the property in question, by omitting to assert it. 31 N. Y., 648; 15 Barb., 568; 23 id., 240; 57 id., 637; 27 id., 506; 34 N. Y., 253; and 51 How., 45, considered. Moreover, the referee found that the demand upon which the judg was recovered, to enforce which the execution by virtue of which the mules were sold was issued, was a promissory note given to defendant for the price of a team bought of him by the appellant. It is to be assumed from the evidence that the team sold was of the class of property exempt by the act of 1842, and consequently any article exempt by that act was liable to levy to satisfy a judgment recovered for the price of such team. 11 N. Y. Leg. Obs., 248; 14 How. Pr., TERM. SECOND DEPT. Elizabeth W. Blake et al., executors, v. Elizabeth W. Blake et al. Decided Sept. 1883. Where, by the terms of a will, an executor also becomes a trustee, powers being conferred and duties imposed upon him not incident to his office of executor, the trust and executorship are distinguishable and separate and a separate commission may be allowed for services as trustee to be paid out of the trust fund. Appeal from portions of a decree made on accounting denying commissions as trustees in addition to commissions as executors. Anson Blake died in May, 1868, leaving a last will and testament by which he bequeathed certain legacies, payable at once and absolutely; and by the tenth clause of the will he devised and bequeathed to his executors all the rest, residue and remainder of his estate both real and personal, "in trust, to divide the same into five parts as equal in value as may be. I authorize them to receive the rents, issues and profits of my said residuary estate, so to be divided as aforesaid," and after paying thereout all costs and expenses of management the net income of one of said shares to be paid to each of said children during his or her respective life, and to his or her separate use and behoof. Power was given to each of |